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veil-of-ignorance technique, is so well known as to have worked its way into introductory philosophy texts. The objection is that it is mistaken to suppose that rational self-interest maximizers behind the veil of ignorance would all adopt the same riskmanagement strategy, let alone that they would all adopt a very conservative one. As John Hospers puts it, ‘unanimity [or even widespread non-unanimous agreement] even from behind the veil of ignorance would seem unlikely because of the diversity of human temperaments. Some people are more risk-oriented than others; to some a risk is a challenge, to others a source of dread’ (1988: 400).43 Hospers is discussing the maximin rule, but the objection applies as well to the conservative (although not maximin) rule Battin ascribes to rational self-interest maximizers behind the stipulated veil. Accordingly, an argument for social policies that aid the disadvantaged should rest squarely on ethical principles rather than on claims about what rational self-interest maximizers would choose behind a veil of ignorance.
One such argument for age-rationing is the ‘fair innings’ argument. Thus, Battin says that ‘it is often held’ that medical resources should be skewed toward the young, partly because the elderly ‘have already lived full life spans and had claim to a fair share of societal resources’ (1987: 321). Gems says, ‘It is generally held that death is more tragic when it occurs in the young, since it is premature, coming before its victims have had the opportunity fully to live out their lives’ (2003a: 37). James Lindemann Nelson effectively criticizes the view of age as what he calls a ‘superfact’, i.e. ‘a fact that characterizes a set of people in a manner so relevant to distribution of goods or assignment of duties that [nothing can] defeat its depositive relevance’ (1999: 116). As Overall points out, there are many ways of being denied opportunities, and ‘Not all older people have received or experienced the things for which we automatically believe young people should have the opportunity’ (Overall 2003: 110) or have had a fair share of social resources.
Hilde Lindemann Nelson and James Lindemann Nelson have argued that ‘in deference to women’s greater longevity and the need to correct for the sexism that has trammeled their opportunities for self-development, women should be eligible for lifesaving interventions for a longer period than are men’ (Nelson and Nelson 1996: 362). But the difference in opportunities for self-development is arguably much greater within the genders than between them.44 While there is some intuitive attraction to the idea that the most ‘unfair’ death is that of ‘someone [who not only died young but] who wanted to [live] a lot, even though he never had much happiness or success’ (Ackerman 1983: 233),45 this is not a workable basis for public
43For Rawls’s response to this sort of objection, see Rawls (2000). Rawls seems to me to be the loser in this controversy, but I cannot go into the details of this here.
44Another problem with the Nelsons’ proposal is that it is hard to see the relevance of women’s
greater longevity. Why should membership in a generally shorter-lived group make an atypically long-lived person less entitled to life-saving treatment?
45 This statement comes from the protagonist of my short story ‘Not This Time’ (Ackerman 1983). See also the discussion in McMahan (2002, ch. 2).
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policy. Rather, in deference to Harris’s observation that respecting the desire to stay alive is ‘the most important part of what is involved in valuing the lives of others’ (Harris 1996: 440), we should accord people equal value by not eschewing attempts to extend greatly the maximum human lifespan and not taking age or ‘desert’ into account in allocating the life-saving resources that already exist.
I now turn to the more familiar problem of economic inequality. Will antiaging technology benefit only the rich? The answer depends on the society itself. Egalitarian objections to the gap between rich and poor are a reason for making anti-aging technology available to the poor, rather than for refusing to fund it. They should be seen as objections to economic inequality, not to allocating resources for greatly extended life. To take the most extreme case, suppose immortality is achievable but the resource limits of our planet restrict the number of people to whom it can be offered. Rather than being auctioned off to the highest bidders, it should, as I suggested earlier, be offered by lottery. Similar considerations apply to the more realistic case of anti-aging technology that greatly extends life without making it eternal. The moral imperative is not to eschew funding research into such technology but to ensure that its fruits are available to the poor as well as to the rich. As for the claim that such technology would be very expensive to develop, test, and distribute, thereby deflecting huge sums from poor people’s urgent needs that we already know how to meet, we should consider whether this is correct and, if so, whether it could be changed. Such a discussion lies beyond the scope of this chapter, but see Kurzweil (2005: 66), Naam (2005), and Sawyer (2005: 87) for a more optimistic view of the economics involved.
But suppose anti-aging technology is not equitably distributed. Which would be worse: greatly extended life for only the economically privileged (which may well include not only ‘the rich’, but also the insured middle class) or greatly extended life for no one? In a different context, Claudia Card says envy in the sense of ‘ ‘‘wishing others to be no better off than oneself ’’ . . . is a form of malice’ (Card 1972: 199).46 Can objections to greatly extended life for only the economically privileged be condemned on these grounds? Certainly not in a country that funds anti-aging research even partly through general taxation, especially in the absence of any sort of guaranteed health care for that country’s poor. What if the research is privately funded? This ties in with a larger issue about health care. Some people favor a kind of enforced medical egalitarianism in the form of a single payer system with a proviso that would preclude health care (in the country in question) outside of that system. Such a system, of course, would prevent private interests in that country from developing anti-aging technology and making it available in that country only to the economically privileged. As I have argued elsewhere,
46 Also see Rawls (1991). There is also a literature, which I cannot discuss further here, on what Derek Parfit (2000: 98; see also Temkin 2000) calls ‘the Levelling Down Objection’, i.e. the view carrying egalitarianism to the extent of holding that it would be desirable that ‘those who are better off suffer some misfortune, so that they become as badly off as everyone else’.
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Perhaps such a prohibition would be appropriate in a society [that] prohibit[s] private education, private housing, and fax machines. But a society that does not outlaw these private alternatives to public education, public housing, and mail service will have a hard time justifying a prohibition against obtaining medical care outside a public system. Such a prohibition would send a brutal message to people with extremely expensive illnesses: if you cost too much, you have no business staying alive, even if you can pay for it yourself or can obtain private donations or private insurance. (Ackerman 1996: 428 – 9)47
The same point applies to people who want anti-aging technology that is extremely expensive. Rather than restricting the amount the rich may spend on health care, we should, as Dworkin suggests, ‘put an excise tax on special health care, and use the proceeds . . . in . . . ways that would make the community distinctly more egalitarian’ (Dworkin 2000: 220 – 1). Furthermore, medical technology is an area where the ‘trickle down’ effect actually seems to occur — nowhere near enough, in my view, but somewhat.48 Heart transplants, for example, once available in America only to the rich, are now covered by Medicare. A final point is that economic class is not entirely static. Economic mobility is limited — far too limited — but it sometimes occurs, making it not always unrealistic for the poor to aspire to move up.
This is not to endorse having anti-aging technology be available only to the economically privileged. That situation is better than having no such technology at all, but it is far, far worse than having the technology available to all who desire it. I believe that people’s rational interest in greatly increased longevity justifies funding research into attempts to extend greatly the maximum human lifespan and having the fruits of that research be available to all who desire it, poor as well as rich, incurably ill and disabled as well as healthy (if the research does not also bring about cures). Overall’s insistence that ‘it is worthwhile to employ social and medical means to lengthen the lives of human beings whose capacities for emotion, perception, thought, and action are at least to some degree intact’ (2003: 191; italics added) is, by current standards, extraordinarily generous. But the qualification I have italicized is problematic. For one thing, unless the standard of intactness is flexible enough to include the ability simply to give consistent responses to such questions as ‘Do you want to die?’ and ‘Do you want to be kept alive?’, the qualification shortchanges people who have (whatever would count as) inadequate capacity for action but much rational desire to live. Moreover, the qualification seems odd in view of Overall’s enlightened awareness that it is ‘an error, of the most presumptuous and
47A general discussion of what sorts of inequalities a democracy should allow is, of course, far beyond the scope of this chapter. But Alan Wertheimer (1988: 314) offers two reasons for holding that a stronger justification for equalization applies to legal resources of adversaries in a civil case than to health care. First, ‘a major purpose of the state is to monopolize binding resolutions to certain sorts of controversies’. Second, ‘an improvement in the legal resources available to one party [to a conflict] has a direct negative effect on the interests of [the other]’.
48See President’s Council on Bioethics (2003a: 282); Garreau (2005); Kurzweil (2005); Naam
(2005); Sawyer (2005).
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high-handed sort, to assume that changed or reduced abilities necessarily constitute a good reason for refusing to prolong life’ (2003: 205).49
Some statistics suggest an appropriate ending here. The American life expectancy in 2001 was 77.2 years, in contrast with 1900, when it was 48.3 years for women and 46.3 years for men.50 As Singer has remarked, ‘We are seeing a phenomenon that the world has never seen before: the fit and active over-eighties, who continue to play golf, swim, travel the world, develop new relationships, and generally enjoy life, in a way that would have been thought impossible — and if possible, scandalous — twenty years ago’ (1991: 132). Imagine sages of the past shuddering over such a prospect. Imagine a 300-year-old, several centuries hence, reading some of our present-day bioethicists on the folly or inequity of life-extension. Imagine applying to greatly extended human life these words of William Blake on love:
Children of the future Age,
Reading this indignant page;
Know that in a former time,
Love! sweet Love! was thought a crime.
(Blake 1967)
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AU TO N O M Y,
A D VA N C E
D I R E C T I V E S , A N D E N D - O F - L I F E C A R E
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1 . INT RO DUC T I ON
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BIOETHICISTS are widely agreed that patients have a right of self-determination over how they are treated. Our duty to respect this is said to be based on the principle of respect for autonomy.1 In end-of-life care the patient may be incompetent and unable to exercise that right.2 One solution is to exercise it in advance. Advance
1 The nature and importance of personal autonomy in bioethics is a disputed topic of late. It has most often been understood along the lines laid out by John Stuart Mill in On Liberty as a right of self-determination. However, Onora O’Neill (2002) has proposed to redefine it along Kantian lines and deemphasize it in relation to the importance of trust, while Carl Schneider (1998) argues that many patients do not want as much autonomy as current bioethics declares they need. Because even revisionists like O’Neill and Schneider do not dispense with self-determination altogether, I feel safe in assuming a fairly schematic duty to respect a patient’s treatment decisions, and leave the details, weight, and argument behind this duty for others.
2 It is often said that ‘competency’ is a legal concept, while ‘capacity’ is a related concept used in clinical and ethical deliberation. This is not quite correct. Mental capacity is a function of one’s
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directives, which include living wills and powers of attorney for health care, enable people to decide (or least influence) what medical treatment they will receive later, when they become incompetent.
Advance directives have been criticized in two general ways. First, many critics contend that advance directives fail on a practical level to effect a patient’s autonomous choices because, for example, people cannot foresee their futures well enough to make informed decisions in advance. Second, many critics contend that, practical problems aside, there is no moral authority for exercising control over one’s incompetent future self. This second kind of objection tends to work from the premise that, if a patient has lost the mental capacity to understand and mentally reaffirm the interests, preferences, or values expressed in the advance directive, then those interests, preferences, or values can no longer be attributed to that patient; therefore we have no moral reason to respect them, and we should instead promote the patient’s current best interests (which are usually welfare interests in avoiding pain, enjoying simple pleasures, and the like). I will briefly mention the practical concerns, but this chapter focuses on the ‘Moral Authority Objection’, partly because it is more complex, and partly because, if advance directives lack moral authority, there is no reason to work on solving the practical problems, while if the objection fails, there is no reason to give up.
According to a conception of personal autonomy that goes back to John Stuart Mill, a person has something like a jurisdictional right to determine what happens to the things in which he or she has interests. According to what I will call the ‘Extension View’, people have the same moral authority over their future affairs that they have over their current affairs — it is simply extended forward. The President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Allen E. Buchanan, Dan W. Brock, Nancy Rhoden, and Ronald Dworkin have all defended versions of the Extension View. Just as the Mill – Feinberg picture of conventional autonomy has two elements — preferences3 and interests — so does the Extension View:
1.Preferences concerning one’s future — comprised by ‘precedent autonomy’.
2.Interests in one’s future — aka, ‘surviving interests’.
For reasons that will be clear later, the interests in question are investment interests in such things as personal dignity or religious commitments, rather than welfare interests in such things as enjoying simple pleasures and avoiding pain. All but
psychological abilities; to be ‘competent’ is to have sufficient mental capacity for a given task. However, competence is not a strictly legal concept. Courts consider competence a question of fact, not of law. For this reason (and because I refuse to say ‘capacitated’ instead of ‘competent’) I follow Beauchamp and Childress (2001: 69) and Buchanan and Brock (1990: 18) in speaking of both ‘capacity’ and ‘competence’ as appropriate, without limiting the latter concept to legal contexts.
3 By ‘preference’ I also mean decisions, intentions, willings, and all other mental states arguably covered by the principle of respect for autonomy.
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unconscious patients have at least some simple welfare interests, but the Extension View requires surviving investment interests.
Critics argue that advance directives lack moral authority for reasons pertaining to both elements:
1.If the patient lacks the competence to comprehend his or her earlier preferences regarding the future, those preferences are not still attributable to that patient, and therefore we have no moral reason to respect them.
2.If the patient lacks the competence to comprehend the things in which he or she earlier took an interest, he or she has ‘lost interest’ in those things, and therefore his or her right of self-determination does not extend to them.
John A. Robertson and Rebecca S. Dresser are the best-known critics of advance directives. The Moral Authority Objection is an idealized version of their main criticisms of the Extension View, and will help organize the discussion. Having rejected the Extension View, Dresser and Robertson contend that medical professionals should do what is in the current best interests of a now-incompetent patient when the patient’s earlier wishes conflict with those interests. A large portion of the medical profession shares their concerns about advance directives.
Narrative theorists, such as Howard Brody, Mark G. Kuczewski, Ben A. Rich, and Jeffrey Blustein, agree with Dresser and Robertson in rejecting the Extension View account of the moral authority of advance directives, but they do not reject advance medical decision-making itself. Instead, they seek to replace the Extension View with a different account of why and how we should respect the earlier values and preferences of a now-incompetent patient.
I explain advance directives in Section 2, present the Extension View and the Moral Authority Objection in Section 3, discuss precedent autonomy and former preferences in Section 4, and discuss surviving interests in Section 5. After reviewing other positions, I will argue that:
•The preferences in question become former preferences once the agent becomes too incompetent to comprehend his or her earlier preferences (subsection 4.1).
•The principle of respect for autonomy sometimes requires that we respect former preferences (subsection 4.4).
•The interests in question can survive incompetence (subsection 5.2).
2 . BACKG ROUND
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There are two kinds of advance directives: living wills, and health care powers of attorney (often known as a ‘durable power of attorney for health care’).4 Because
4 Although I will not discuss episodic mental disorders, psychiatric Ulysses contracts (often called ‘advance directives for mental health treatment’ or something similar) are also forms of advance