On the Allocation of a Single Ventilator Between Two Persons

1. ETHICAL ASSESSMENT

Let me state at the outset what the moral law makes unmistakably clear: the hospital may not decide this question by comparing the worth of the two men. The proposal that the younger patient should receive the ventilator because he is younger — because he possesses more remaining years, more productive capacity, more future utility — is not merely a mistaken calculation. It is a violation of the very foundation of morality.

For as I have argued in the Groundwork, everything has either a price or a dignity. What has a price can be replaced by an equivalent; what is raised above all price, and therefore admits of no equivalent, has dignity. Rational nature — humanity in a person — exists as an end in itself and possesses dignity. To weigh thirty years of one man's life against seventy years of another man's, as a merchant weighs grain, is to treat both men as things possessing price. It is to say that a person's claim upon our regard rises and falls with a quantity. This I reject absolutely.

The situation is nonetheless genuinely tragic, and here I must be careful: a tragic situation is not the same as a moral one. The hospital's failure to save one man is not a murder of him. There is no wrong done by the impossible — ultra posse nemo obligatur. The moral question is not "who may be killed?" but "how may a scarce means be distributed without treating either person as a mere means?"

2. KEY POINTS

• Age is not a measure of dignity. The seventy-year-old possesses rational nature, and therefore absolute worth, no less fully than the thirty-year-old. Dignity does not depreciate with time, as a machine does. To hold otherwise is to confuse the person with his usefulness.

• The distinction between a perfect and an imperfect duty is decisive here. The physician has a perfect duty never to kill a patient, and an imperfect (though urgent) duty of beneficence to preserve life where he can. Imperfect duties admit of latitude precisely because we cannot help all persons at all times. The ventilator's scarcity is a limit of nature, not a permission to rank persons.

• The maxim must be universalizable and publicly avowable. Could the hospital declare openly, as a standing law: "When resources are scarce, the elderly shall be set aside"? Such a maxim, if made public, would destroy the very trust upon which the medical relation rests, and it could not be willed by every rational being — for every rational being who grows old would thereby will his own exclusion from the community of ends.

• Medical prognosis is a permissible criterion; social worth is not. If the ventilator would, for some patient, be incapable of achieving its end — that is, if it cannot save him at all — then giving it to him is not a benefit but a futility. This judgment concerns the efficacy of the means, not the worth of the man. The distinction is subtle but absolute.

• Where reason cannot distinguish, equality must be honored, not concealed. If both men have an equal claim and an equal prospect, then a procedure that treats them equally — a fair lottery, or the honoring of an already-established rightful claim — is the only method that does not covertly smuggle in a valuation of persons.

3. FRAMEWORK

I apply the categorical imperative in its several formulations, together with the doctrine of Right (Recht) as distinguished from the doctrine of Virtue (Tugend):

First formulation (universal law): Act only according to that maxim through which you can at the same time will that it become a universal law. Test the hospital's proposed policy as a law of nature.

Second formulation (humanity as end in itself): So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means. This is the formulation that decides the case.

Third formulation (the kingdom of ends): Act as a legislating member of a possible kingdom of ends — a systematic union of rational beings under common laws, in which each counts as an end and none as mere instrument. Ask: what allocation rule could all rational beings, including the aged, legislate for themselves?

I emphatically do not apply the principle of the utilitarians, who would maximize "life-years saved." That doctrine derives morality from the empirical, from happiness and consequence, and therefore can furnish no categorical law at all — only hypothetical counsels of prudence. Worse, it possesses no barrier whatever against sacrificing one man for the aggregate, which is the precise crime the moral law forbids.

4. REASONING

The Error of the Age Criterion

Let us examine the maxim: "When a scarce life-saving resource must be allocated, give it to the patient with more expected remaining years."

What does this maxim presuppose? It presupposes that the value of preserving a person is a function of the quantity of life thereby preserved. But this is to treat a person as a container of something valuable, rather than as the seat of value itself. On my account, it is not life as such that possesses absolute worth — a beast lives, and has price only — but the rational, self-legislating will. That will is present whole and entire in the seventy-year-old. It is not present in fractions. A man of seventy is not seven-tenths of a person, nor is he four-sevenths of a man of thirty. Dignity does not admit of degree, because it admits of no equivalent by which degrees could be measured.

Moreover, consider the "fair innings" argument that some advance — that the elder has already had his portion of life, and justice requires the younger receive his. This reasoning treats life as a distributed good, like an allotment of bread, and the person as its recipient. But a man's life is not a ration he has drawn from the state's stores. He did not receive it as a gift for which he must now account, and he owes no one a settling of the ledger. To say "you have lived enough" is to arrogate to oneself a judgment over the worth of another's existence that no finite rational being possesses the standing to make.

What Then May Be Considered?

I do not counsel paralysis. Reason permits certain distinctions, provided they concern the means and not the person.

First: whether the ventilator can in fact save the patient. If one man's condition is such that mechanical ventilation cannot preserve him — if the treatment is futile in the strict sense — then to allocate it to him is not beneficence but a squandering of the means by which beneficence acts. Here the physician judges his instrument, not his patient's worth. It is worth observing that age may correlate with such prognosis; but then it is the prognosis, not the age, that does the moral work, and the physician must be scrupulously honest with himself about which he is actually reasoning from.

Second: prior rightful claim. If one patient is already upon the ventilator, the matter changes character entirely. To remove a man from a treatment sustaining him is not a failure to aid — it is an act terminating his life, and this falls under the perfect duty against killing. The physician may not withdraw the means from a living patient in order to bestow it upon another he judges more deserving. This would be to use the first man merely as a means to the second's survival, in the most literal way imaginable.

Third: where reason finds no ground of distinction, equality of claim demands equality of chance. A lottery may appear to some a mere abdication of judgment — a shrugging of the shoulders. It is nothing of the kind. It is the positive expression of the recognition that neither man's claim can rightfully be subordinated to the other's. It says to each: I have not judged you less worthy; I have judged that I have no authority to judge between you. This is the only procedure that both men could, as legislating members of a kingdom of ends, consent to in advance. And note well: the seventy-year-old could not consent to the age criterion, for it condemns him without a hearing; but both could consent to the lottery.

The Duty of Publicity

I add a consideration from my political writings, for it bears directly here. I have maintained as a transcendental principle of public right: "All actions relating to the right of other men are unjust if their maxim is not consistent with publicity." An action whose maxim must be concealed to succeed is thereby shown to be unjust.

Let the hospital ask itself: could this rule be posted upon the door, read aloud to every patient upon admission? "Should scarcity arise, those above a certain age will not be treated." I submit that the discomfort any honest administrator feels at this prospect is not squeamishness but the voice of practical reason, reporting that the maxim cannot survive the light.

On the Anguish of the Choice

Finally, a word on the physician's own condition. He will suffer, and he ought to suffer, for sympathy with the distress of others is a natural disposition that reason commands us to cultivate rather than deaden. But he must not permit that anguish to become the ground of his decision, for feeling — however noble — is pathological in origin and cannot yield a universal law. He must act from duty, and then bear what follows.

And he must know this: having acted rightly, he is not guilty of the death that ensues. The moral worth of his action lies in the maxim from which he acted, not in the outcome that nature and scarcity have imposed. He did not create the shortage; he has not murdered; he has treated both men as ends. A good will, as I have said, is good not because of what it effects or accomplishes, but through its willing alone — it would sparkle like a jewel for its own sake even if, by the niggardly provision of stepmotherly nature, it should wholly lack the power to accomplish its purpose.

Let the hospital procure more ventilators. That is a duty too — a duty of the state, and an urgent one. But the tragedy of the present hour does not license us to abandon the principle that a man of seventy is a man entire.

On the Allocation of a Single Ventilator Between Two Lives

1. ETHICAL ASSESSMENT

Let me begin by acknowledging the peculiar cruelty of the case. Whatever the hospital does, a person dies who might have lived; and no arrangement of words will convert that into a happy outcome. The question is not how to do good, but how to do the least harm — and the utilitarian creed, which holds that actions are right in proportion as they tend to promote happiness, and wrong as they tend to produce the reverse, does not shrink from such cases. It insists only that we face them with our eyes open, counting all the consequences and refusing to be governed by sentiment, custom, or the mere feeling of repugnance at deciding at all.

My conclusion is this: the hospital may legitimately consider the probable quantity and quality of life that each patient's survival would secure — and in doing so, the difference between thirty and seventy years of age is not an irrelevance, for it bears on the expected happiness at stake. But age is a crude proxy, not a principle; it must never be treated as a mark of lesser worth in the person, and the decision must be made by a publicly avowed rule that treats each claimant's interests as counting equally, so that the security which is the very foundation of social life is not shaken.

2. KEY POINTS

• Everybody to count for one, nobody for more than one. The utilitarian standard does not weigh the young man's happiness as intrinsically more valuable than the old man's. What it weighs is the aggregate of happiness likely to result — and it is a fact, not a prejudice, that a longer expectancy generally carries with it a greater sum of years of life, of affection given and received, of work done and enjoyed.

• Probability of survival is the first and least contestable consideration. If the ventilator will save one patient and merely prolong the dying of the other, the case is decided at once; no further comparison of lives is required. The greatest good is done by giving the instrument to the person it can actually rescue. Prognosis, not age, ought to be the primary criterion, and age enters chiefly as evidence bearing upon prognosis.

• Utility comprehends more than duration. I have always insisted that pleasures differ in kind and not merely in quantity. A life of seventy years may be embedded in a web of dependents, of pupils, of a community that relies upon it; a life of thirty may be solitary. Such circumstances are not to be dismissed as sentimental — they are precisely the consequences upon which the calculation turns. Yet they are so difficult to ascertain, and so easily corrupted by the physician's private sympathies and social prejudices, that I would admit them only with great reserve.

• Justice is the guardian of security, and security is the most vital of all interests. In Utilitarianism I argued that the rules of justice possess a peculiar sacredness because they protect the interest without which no other good can be enjoyed. If patients came to believe that the aged, the poor, the disabled, or the unpopular would be quietly passed over, the harm to public confidence in medicine would far exceed any gain in a single case. Hence the rule must be announced beforehand, applied openly, and confined to medically defensible grounds.

• A tie should be broken by lot, not by discretion. Where two claims are, so far as we can judge, of equal weight, a lottery is the arrangement that best expresses the equal consideration each person is owed, and best protects against the covert operation of class feeling and customary contempt for the old.

3. FRAMEWORK

I apply the Greatest Happiness Principle, in the form I have laboured to defend: that the ultimate standard of right conduct is the greatest amount of happiness altogether, the happiness of each counting equally with that of any other, and with pleasures assessed for their quality as well as their quantity. I apply it, however, not as a licence for each agent to calculate afresh in every emergency, but through secondary principles — rules of justice, of impartiality, of promise-keeping and of trust — which are the accumulated experience of mankind concerning the tendencies of actions, and which we depart from only when they conflict and reason must adjudicate between them. And I apply it with my customary insistence that received opinion, however venerable, be subjected to examination; for much of what passes for moral intuition in these matters is only the residue of custom.

4. REASONING

Consider first the objection that will be raised against me: that to prefer the younger patient is to declare the elder man's life worth less, and thus to violate the equality of persons. I answer that this confuses two distinct things. The utilitarian does not appraise persons; he appraises consequences. When I say that saving the thirty-year-old will probably produce a greater sum of happiness, I do not say that he is a better or more deserving being. I say only that more life, and therefore more of whatever life contains — affection, exertion, thought, enjoyment — is likely to follow. The seventy-year-old's remaining years are as precious to him as the younger man's are to him; but there are, in the ordinary course of nature, fewer of them. To refuse to notice this is not impartiality; it is a refusal to look at the facts, and I know of no morality that is improved by such refusal.

Nevertheless I would place two firm restraints upon this reasoning.

The first concerns the quality of the estimate. Age is an average, and averages are treacherous when applied to individuals. A vigorous man of seventy may have fifteen good years before him; a man of thirty ravaged by disease may have two. If the hospital consults age instead of consulting the actual medical prospect, it substitutes a convenient rule for the truth, and the utility it seeks will elude it. Therefore: judge by the likelihood of the treatment succeeding and by the reasonable expectation of recovery — and let age inform that judgment only insofar as physiology genuinely warrants.

The second restraint concerns what I have called the social consequences, which the hasty utilitarian always underrates. I have written that the moral rules forbidding injury to others are more vital to human wellbeing than any maxims of mere expediency, because they concern the security by which men are enabled to plan their lives at all. Now, if hospitals were understood to weigh the comparative social value of their patients — to spare the useful and abandon the burdensome — then every aged, infirm, or unfashionable person would live in the shadow of a sentence. The suffering caused by such general apprehension is real suffering, and must enter the account. It is on this ground, and not on any ground of abstract right divorced from utility, that I insist the criteria be narrow, public, medically grounded, and administered by a committee rather than by an individual physician at the bedside — for it is at the bedside, under the pressure of the moment, that prejudice masquerades as judgment.

I would add a word on those considerations of social usefulness which some will urge — that the young man is a father of children, or a person of talent. I am not so squeamish as to say these can never matter; consequences are consequences. But I am acutely aware how such reasoning has historically been employed to dignify the interests of the powerful. The whole tendency of my writings has been to expose how custom disguises the subordination of one class, or one sex, as the natural order of things. I should therefore exclude judgments of social worth almost entirely, permitting at most the narrow consideration of clear dependency — and even that with hesitation, and never as a general policy.

Finally, I would have the hospital do one thing more, which pure calculation might overlook and yet which utility demands: that whichever patient is not given the ventilator be given every comfort, every attendance, every alleviation of pain, and the honest explanation of what has been done and why. The obligation to relieve suffering does not cease when the obligation to prolong life cannot be discharged. And the man who is told the truth suffers less, in the end, than the man who is deceived — for I have never believed that mankind is best governed by being kept in ignorance.

So: give the ventilator where it will most probably save a life; where both may be saved, give it where the greater sum of life and happiness lies, of which age is one honest indication among others; where the claims are equal, draw lots; and let the whole procedure be avowed openly, that the trust upon which the practice of medicine depends may survive the tragedy it cannot prevent.