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Posted on October 3, 2014 at 12:21 AM

Over at his “Human Exceptionalism” blog, and in an essay in First Things, Wesley Smith recently gave a shout out to the work of Charles Foster of Oxford University, for his reassertion of the notion of human dignity.  The specific context is a discussion by Foster of “Dignity and the Ownership and Use of Body Parts” in the October 2014 issue of the Cambridge Quarterly of Healthcare Ethics.  Following the link in Smith’s First Things article actually leads one to a similar, but shorter, 2012 article in the Journal of Medical Ethics. (Note that one can gain access to either only by subscription or paying a fee to read online or download.)

An overly-brief precis of Foster’s argument:  considering body parts—such as organs for use in transplantation—to be property is inadequate; if transplantation doctors surreptitiously (and so, wrongly) procured a child’s heart for transplantation and the parents found out later, they wouldn’t want the heart back, they would want redress for the doctors’ indecent treating of their dead child.  A utilitarian approach to the ethics of obtaining organs for transplant requires explaining the nature of the good, a task for which the utilitarians would likely appeal to autonomy.  And appeals to autonomy fail because different people involved in the process may have competing claims, the wishes of the donor may not be known, or, most fundamentally, the whole appeal to autonomy rests on “respect for persons.”

And that sounds a lot like human dignity, which Foster says really should be treated as a much more primary principle than it sometimes is by those who consider it a vacuous concept.  At the same time, he holds, it will not do to appeal to dignity simply because it possesses “an old and august name.”  Reminiscent of Gilbert Meilander (among others, I guess), Foster says that in argument, human dignity is described as either “an inalienable status” [e.g., the imago Dei] or “a quality demonstrated by people who are dignified.”  Wanting to avoid being “incurably theological,” he appears uncomfortable with the former, yet thinks that the two are just two sides of the same coin; viz., that dignity is “about being human well.”  Fleshing this out is both necessary and possible; dignity is not entirely amorphous, although it is “easier to recognize than to define.”  (There is, for me, a hint of intuitionism in this, although the “incurable theologian” in me might call it the fundamental working of natural law or “deep conscience” or general revelation or something to that effect.)

Defining dignity does not entail “any account of human specialness that asserts that humans are intrinsically better than nonhumans.”  Rather, it is based on human thriving, which, in principal, can be determined empirically.  And that, Foster says, is not just a question of human individual dignity, but involves relationships between human beings.

And that’s where it gets slippery for me.  To start with, his tilt toward “being human well” seems to push him hard toward a notion of dignity that depends on realized capacities.  Further, in the 2012 article, he writes, “I propose a sort of utilitarianism.  The unit of bioethical discourse should not be the doctor-patient relationship (for instance), but the whole transaction.  One should assess [the impact of an act on]…the dignity/thriving interests of every stakeholder” involved.  Yet in the 2014 article, he writes (to Smith’s hearty approval), “[o]ur main concern should be not abstract human thriving but the thriving of a particular human being.  It is her humanization that should be the object of ethical discussion.”  And, in support of the dignity of permanently unconscious people, Foster writes that each person has an ongoing “story,” and “there are good stories and bad stories,” and it is better for an unconscious person to have her story be a good one.  Misusing that person makes her story worse.  But, further, for people to act in a way that diminishes another’s dignity impairs their own thriving.  Family should continue to visit the unconscious person; even if she can’t recognize her relationships to other people, she still has them.  “A prison warden who forces a prisoner to eat his own feces…is massively eroding his own [dignity].”  And we shouldn’t allow murder to go unpunished not because we need to deter other murders, but because of “what the fact of the unpunished murder says about the zeitgeist—about the ethical water in which we all have to swim.  A society that tolerates murder is toxic, and the toxicity affects the ability of us all to thrive.”

Well put.  But I think Smith misinterprets Foster on the last point, citing the “murder” argument as a reason not to harvest the unconscious person’s organs.  Foster makes the “murder” point to support the statement that “everyone” has a dignity interest in the unconscious person. But that in turn follows this (in the 2014 article):  “One way of having a good end to the story of a PVS patient is by being altruistic…If this is right, then in might be in the best [dignity] interests of the patient for her to die and for her organs to be harvested to let others live.”  Hmmm.

And in fact, Foster promotes judging the ethics of an action by a sort of utilitarian calculus of thriving:  Identify the stakeholders.  Identify their dignity interests.  Weigh those interests. (“Note that many of the weights will be negative.”)  Allocate the interests a proximity score.  (Think of the priority order entailed in identifying people to make substituted judgments.) Add up the interests.  Apply something Foster calls “discounting” factors (more complex than space will allow dealing with here).  Add up the total score.  If the result is a positive number, the action is justified; if negative, it is not.

I agree with Smith that defenses of human dignity are welcome.  “We need all the help we can get in the Alamo,” he writes.  Indeed.  But I’m not sure just how protective of the dignity of the vulnerable Foster’s approach actually is, in the end.  It’s all too incurably utilitarian for me.

Then again, I’m an incurable theist.

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