Elke Wagner, Bijan Fateh-Moghadam: Volunteerism as a Procedure: Relating Living Organ Donation, Medical Practice, and the Law

The option of living organ donation requires a decision which seems to be simultaneously consistent and inconsistent with the expected performance practices of medicine. The therapeutic treatment of the organ recipient is necessarily connected to a non-therapeutic, even harmful operation for the organ donor. In this situation, decision makers can no longer presume the ultimate necessity of protecting the patient’s best interest, as traditionally defined by the medical profession. Instead, health practitioners are forced to switch to recognizing the autonomy of the patient as a concept. Despite a thirty year old debate within the sociology of medicine criticizing medical paternalism, the autonomy principle seems to be a functional solution to the problem of living organ donation. However, this shift in paradigms has been accompanied by the emergence of new legal procedures, since the evaluation of autonomy is apparently outside the jurisdiction of the medical profession. Based on our empirical observations of the routine work of living-donor commissions, this article reconstructs how the different perspectives of medicine, psychology, and the law generate persons as volunteers. We describe how symmetrically structured concepts of personhood are produced through the asymmetrical attribution processes of the commissions. In addition, we will show how this procedure, from the perspective of potential organ donors, can involve tedious qualifications. We conclude that, with regard to the relationship between medicine and law, the commission’s procedures for establishing the criteria of volunteerism result in tighter structural and operative couplings. This development subsequently produces unique, differentiated problems and reciprocal irritations in both the medical and legal systems.