Death, Posthumous Harm, and Bioethics

James Stacey Taylor

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136257759
• Edition: 1
• Topic: Philosophy
• Subtopic: Ethics & Moral Philosophy

Death, Posthumous Harm, and Bioethics offers a highly distinctive and original approach to the metaphysics of death and applies this approach to contemporary debates in bioethics that address end-of-life and post-mortem issues. Taylor defends the controversial Epicurean view that death is not a harm to the person who dies and the neo-Epicurean thesis that persons cannot be affected by events that occur after their deaths, and hence that posthumous harms (and benefits) are impossible. He then extends this argument by asserting that the dead cannot be wronged, finally presenting a defence of revisionary views concerning posthumous organ procurement.

1
Posthumous Harm and Interestbased Accounts of Well-being

In 1428 the remains of John Wyclif, who died in 1384, were exhumed and burned by the Catholic Church to punish him for his criticisms of the doctrine of transubstantiation.¹ But the view that the dead can be harmed is not confined to the religious leaders of the fifteenth century.² It is still common for people to feel sorry for a decedent if his projects fail after his death or to believe that the waning of a person’s reputation is bad for her.³ In the medical realm, the belief that the dead can be harmed informs the debate over the ethics of using either a policy of presumed consent or a policy of conscription to procure human transplant organs from cadavers, the debate over the ethics of posthumous reproduction, debates that concern issues of posthumous medical confidentiality, and debates over the use of the dead in research. The account of how persons can be subject to such posthumous harm that has been most influential in both the metaphysical and bioethical discussions of this issue is that which has been developed by George Pitcher⁴ and Joel Feinberg, and this has played a central role in each of the bioethical debates mentioned above.⁵ The Feinberg-Pitcher view of how posthumous harm is possible has, for example, been both accepted by persons using it to ground objections to using a system of presumed consent to procure human transplant organs,⁶ and criticized by persons who favor the posthumous taking of transplant organs.⁷ It has also been used to support respecting the confidentiality of a person’s medical records after her death⁸, the claims of women who wish to retrieve semen from their dead partners so that they can posthumously father children,⁹ in the context of discussing the management of postmortem pregnancy,¹⁰ and to ground objections to using the dead as research subjects without their antemortem consent.¹¹

Yet although the Feinberg-Pitcher account of how the dead can be harmed has had widespread influence both within bioethics and beyond it is mistaken. Before moving to argue for this conclusion, however, three points should be noted. First, even if the Feinberg-Pitcher account of posthumous harm is mistaken this does not entail that posthumous harm is impossible, for an alternative—and tenable—account of how such harm could occur could be developed.¹² (Such accounts will be criticized in the next two chapters.) However, the arguments that will be developed in this chapter against the Feinberg-Pitcher account of how posthumous harm is possible will go some way towards undercutting alternative accounts of posthumous harm, also. This is because they will in part show that the intuitions that give plausibility to the view that posthumous harm is possible can be accommodated without having to appeal to it. As such, the argument of this chapter differs considerably from others offered against the Feinberg-Pitcher account of posthumous harm, for it does not focus on showing that the Feinberg-Pitcher position has counterintuitive implications.¹³ Rather, it will seek to show that since accepting the intuitively plausible claims that are widely taken (by both its proponents and critics alike) to support the Feinberg-Pitcher position do not commit one to doing so there is no reason to accept their view at all. Second, even if it is not possible to harm the dead this does not mean that one should no longer be concerned with the putative interests of the dead, for it is possible that one might wrong someone without harming her. Thus, if this is so, then those bioethical debates in which the concept of posthumous harm plays a role could still continue, albeit with a focus on whether certain acts or practices would wrong the dead, rather than harm them.¹⁴ To address this it will be argued in Chapter 4 that just as the dead are immune from all harm, so too are they invulnerable to being wronged. Finally, as was noted in the Introduction, it is assumed in these arguments that agents cease to exist after the deaths of their physical bodies (or those parts of them that are relevant to the ascription of death) in any state in which they can have conscious experiences. Note, though, that if this view is false (if, for example, certain Christian beliefs concerning life after death are true), this does not in itself undermine the view that posthumous harm is impossible. This is because the Epicurean defender of the impossibility of posthumous harm could simply modify his argument to one that was concerned with the impossibility of harming persons after they case to exist—whenever that might be.¹⁵

THE INTUITIVE CASE FOR POSTHUMOUS HARM

Before outlining the Feinberg-Pitcher argument for the possibility of posthumous harm it is advisable first to outline why one might believe that the dead could be harmed. This is important, for this belief is faced with two immediate problems that, absent such a case, would undermine its plausibility from the outset.

The first of these problems (“the problem of the subject”) derives from the Epicurean puzzle concerning the alleged harm of death.¹⁶ According to Epicurus, a person cannot be harmed by his death. When a person is alive, he is not dead, and so his death has not harmed him. After he is dead, however, the person no longer exists, and so there is no subject for the alleged harm of death to befall.¹⁷ This last Epicurean observation similarly applies to the view that a person can be harmed after his death. If a person is dead, he does not exist, and so no harm can befall him, for there is no subject for the harm to affect.

The second difficulty (“the problem of backwards causation”) faced by the proponent of the view that a person can be harmed after his death is that to endorse the possibility of posthumous harm appears to commit one to endorsing the metaphysically dubious view that backwards causation is possible.¹⁸ Both individually and together these two problems undermine the initial plausibility of the possibility of posthumous harm. There are, however, two sets of intuitions that can be marshaled to support the claim that the dead can be harmed. The first of these derives from a rejection of the hedonic view of well being. The second derives from the claim that the dead can be wronged.

The Anti-Hedonistic Intuition

The first aspect of the intuitive case for the possibility of posthumous harm is based on the intuition that a person can be harmed by an event in her lifetime that thwarts her interests, even if she never discovers that this thwarting has occurred, and even if her subjective experience of her life is unaffected by it. If it is plausible that the thwarting of a person’s interests under such circumstances can harm her, then, by extension, the claim that persons can be harmed by events after their deaths that thwart their interests is similarly plausible.¹⁹

A version of this first aspect of the intuitive case for the possibility of posthumous harm has been offered by both Feinberg and Derek Parfit.²⁰ Feinberg compares two cases to show that the dead can suffer harm. In the first, Case A, a woman devotes thirty years of her life “to the furtherance of certain ideals and ambitions in the form of one vast undertaking.” Unfortunately, one month before this woman dies “the empire of her hopes” collapses and she is disgraced. However, the woman’s friends conceal this from her and she dies contented.²¹ In the second case, Case B, the facts are the same as in the first, but both the collapse of the woman’s undertaking and her disgrace occur a year after her death. Feinberg writes “it would not be very controversial to say that the woman in Case A has suffered grievous harm to her interests although she never learned the bad news.” He goes on to note “Those very same interests are harmed in Case B to exactly the same extent, and again the woman does not learn the bad news, in this case because she is dead.” From this, Feinberg concludes that there is no relevant difference between Case A and Case B. Thus, if one holds that the woman in Case A has been harmed by the thwarting of her interests one must also hold that the woman in Case B has similarly been harmed, even though the harm that she suffers occurs after her death.²² A similar example has been developed by Derek Parfit. In Parfit’s example a man’s interests in the well- being of his offspring are thwarted as they suffer misfortune. One finds that his education “makes him unemployable, another has a mental breakdown, another becomes a petty thief.”²³ However, the man is in exile, and does not come to learn of these events. Despite this, Parfit claims, we intuitively want to say that this man has been harmed by the misfortunes of his children even though he did not know that his interests in their well being had been thwarted, and even though this thwarting had no effect on his subjective experience. Thus, concludes Parfit, if we accept that this man is harmed even though the thwarting of his interests had no effect on him, then we must also accept that the similarly subjectively ineffective thwarting of the interests of the dead can harm them, too.

Wronging the Dead

The second aspect of the intuitive case for the possibility of posthumous harm draws on the common view that the dead can be wronged. To show that it is plausible to hold that the dead can be wronged Feinberg adds a further twist to his example of the woman who is harmed by the collapse of the “empire of her hopes”. In the revised version of this example, Case C, the woman’s projects fail and she is disgraced owing to the actions of a “group of malevolent conspirators, [who] having made solemn promises to the woman before her death, deliberately violate them after she has died.”²⁴ These conspirators bring about the collapse of the woman’s institution and her disgrace by spreading damaging lies about her, revealing secret plans, and betraying her trust.²⁵ Feinberg contends that, intuitively, the woman in Case C is not merely harmed by these conspirators, but they also wrong her. Since this is so, it seems that the dead can be wronged. Feinberg writes,

When a promise is broken, someone is wronged, and who if not the promisee? When a confidence is revealed, someone is betrayed, and who, if not the person whose confidence it was? When a reputation is falsely blackened, someone is defamed, and who, if not the person lied about?²⁶

From this, Feinberg argues that since it is intuitively plausible to hold that the dead can be wronged then the view that they can be harmed should similarly be intuitively plausible, “especially when the harm is an essential ingredient of the wrong.”²⁷ Moreover, Feinberg argues, since the nonexistence of the dead is no bar to their being wronged the “problem of the subject” cannot be a genuine problem, for if it were it would preclude the attribution of this property to them. Thus, Feinberg concludes, just as one can hold that the dead can be wronged, so too can one hold that they can be harmed.²⁸

THE FEINBERG-PITCHER ARGUMENT FOR POSTHUMOUS HARM

With the intuitive case for the possibility of posthumous harm in place it is now time to turn to the arguments that Feinberg and Pitcher have developed to defend it.²⁹

Pitcher begins his account of how the dead can be harmed by distinguishing between describing someone after his death as either an antemortem person or a postmortem person. To describe someone after his death as an antemortem person is to describe him “as he was at some stage of his life—i.e., as a living person.” To describe someone after his death as a postmortem person is to describe him “as he is now, in death—mouldering, perhaps, in a grave.”³⁰ Noting “no one would want to argue seriously that a post-mortem person can be harmed after his death,” Pitcher argues that the dead can be harmed insofar as antemortem persons can be harmed after their deaths.³¹ With this clarification in hand, Pitcher claims that an event or a state of affairs will harm someone “when it is contrary to one or more of his important desires or interests.” Thus, since an antemortem person’s “important desires or interests” might be thwarted after her death, an ante-mortem person might be harmed after her death. Since Pitcher is clear that the subject of the postmortem harm is the antemortem person whose interests are thwarted postmortem, he avoids the problem of the subject. He also seems to avoid the problem of backwards causation. Pitcher recognizes that it is natural to construe his view to be that a person dies unharmed, and is only harmed once the event or state of affairs that thwarts his important desires or interests takes place. However, he disavows this understanding of his position. Instead, for Pitcher, an ante-mortem person is harmed during his lifetime by the fact that the thwarting of his interest that occurs after his death was going to occur. Consider the claim that an event that occurs after a person’s death makes it true that he was harmed by it while he was alive. According to Pitcher, this should be understood in the same way as the claim that an event that destroys the world during the presidency after Ronald Reagan’s makes it true that Reagan’s presidency was the penultimate one of the United States.³² Claiming that Ronald Reagan was the penultimate president of the United States does not commit one to endorsing backwards causation. By the same token, Pitcher claims, holding that the thwarting of a person’s interests after his death harms him as an antemortem person does not commit one to endorsing backward causation.

ASSESSING THE ARGUMENT FOR POSTHUMOUS HARM

It is clear why the view that posthumous harm is possible is so pervasive among philosophers, and hence so widespread within those debates in bio-ethics that concern the treatment of the dead. The thought experiments developed by Feinberg and Parfit that support its possibility are compelling, and the arguments that Pitcher has developed to circumvent both the problem of the subject and the problem of backwards causation are elegant and persuasive.

Yet despite their plausibility Pitcher’s arguments fail to demonstrate that posthumous harm is possible, for his example of it being made true that Reagan was the penultimate president of the United States does not support his claim that “An antemortem person can be harmed by events that happen after his death.”³³ The property of “being the penultimate president of the United States” is a sequential property. That is, it is a property that a person would possess if he or she were to be the United States president at a particular point in the sequence of United States presidents. Harm, however, is not a sequential property. Rather, a person is harmed by an event if that event results in his well being being lower than it was (or would have been) prior to the event (or than it would have been had the event not occurred).³⁴ Harm thus cannot be ascribed to someone solely on the basis of his being in a particular position in a certain sequence, as can the property of holding a particular position in the sequence of United States presidents. Since this is so, the fact that events after a person’s death can result in sequential properties being ascribed to her as she was antemortem cannot be used to show that non-sequential properties, such as harm, can similarly be ascribed to her as she was antemortem on the basis of events after her de...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Acknowledgments
• Introduction: Death Unterrible
• 1 Posthumous Harm and Interest-based Accounts of Well-being
• 2 Further Criticisms of the Possibility of Posthumous Harm
• 3 The Impossibility of Posthumous Harm
• 4 Can the Dead Be Wronged?
• 5 Why Death is Not a Harm to the One Who Dies
• 6 Fearless Symmetry
• 7 Epicureanism, Suicide, and Euthanasia
• 8 Epicureanism and Organ Procurement
• 9 Further Bioethical Applications of Full-blooded Epicureanism
• Conclusion
• Notes
• Bibliography
• Index