When James Childress included his 1970 Soundings article, “Who Shall Live When Not All Can Live?” in Practical Reasoning in Bioethics—a collection of his essays published in 1997—he followed it with a postscript, somewhat longer than the original article, in which he brought the deliberations of the intervening years to bear on his earlier arguments (Childress 1997c). The article plus postscript were then succeeded in that volume by reprints of two later publications, one from 1983 on the applicability of triage reasoning and practice to neonatal intensive care (also with a postscript), the other a 1991 article that considers fairness in medical resource allocation and focuses that discussion on the distribution of transplantable organs (Childress 1997b, 1997a). The three essays, taken together, contain Childress's developed understanding of “medical utility,” especially as distinct from “social utility,” as a criterion integral to fairness in allocation of scarce medical resources—an original and influential contribution to biomedical ethics and to discussions of distributive justice.In the 1970 article—his “first serious foray into biomedical ethics” (Childress 1997c, 180)—Childress describes and recommends a two-part selection process for considering candidates for renal dialysis or, in later application, kidney transplant.1 Medical “acceptability” governs the first part of the process (Childress 1997c, 172–73), determining which patients need and would benefit from dialysis. As far as possible, the criteria for medical acceptability are to be cleansed of psychosocial considerations—factors most likely to reflect, even indirectly, discriminatory judgments of social worth—unless they can be shown in the case at hand to significantly affect medical suitability (as, for example, in relation to a particular patient's ability to adhere to the medical regimen that must accompany dialysis in order to secure the benefits and safety of the procedure). In the second stage, allocation of time on dialysis machines among those deemed medically acceptable would be determined by a form of random selection, either in a lottery or, perhaps more appropriately in this case, on a “first come, first served” basis. The shift from utilitarian criteria in the first phase to random selection in the second honors personal dignity—the equal value of each person, important for all Childress's arguments about allocation—and acknowledges inescapable limitations on human calculations of future outcomes and aggregate good. Childress's overt aim in this proposal is to diminish the opportunity for unwarranted discrimination, an issue of unquestionable social and political importance in the United States at the time of this article's composition.2The postscript written for the 1997 republication of the article finds Childress adopting “medical utility, as distinguished from social utility” (Childress 1997c, 184), as a consideration both valuable and necessary in “final selection,” thus apparently allowing certain utilitarian considerations to modify the otherwise simple randomness of the second phase of the selection process, in the interest of good stewardship of scarce donated organs (too few dialysis machines is no longer the problem). By this argument, it would be ethically appropriate, for example, for a physician to decide to deflect a randomly allotted organ from a prospective recipient who is now nearing death for reasons the new organ will not resolve, in order that the donated organ go instead to someone who can benefit from it to a foreseeably and significantly greater degree. The definitions of medical and social utility are refined and clarified in the 1983 article “Triage in Neonatal Intensive Care” and in 1991's “Fairness in the Allocation and Delivery of Health Care,” the terms are brought to bear on both stages of selection for organ transplantation. Or, perhaps better, on all three stages, for with the addition of attention to what Childress termed “final selection,” it is clear that the allocation process is now seen as comprising three steps: (1) selection by the local transplant team of individual patients as reasonable candidates for organ transplantation; (2) random allocation of donated organs among the candidates at a regional or national level; and (3) final determination, again by the local transplant team, of whether the allocated organ should be given to the designated patient. By Childress's reckoning, criteria of medical utility are and should be in play in stages 1 and 3; stage 2 allocation is largely by randomization only, not utilitarian considerations.In the late 1980s a national registry, a waiting list for persons in need of donated, transplantable organs was inaugurated and continues to be administered by UNOS, the United Network for Organ Sharing.3 The first stage of allocation is now the decision “to list,” to place a patient on the waiting list. The second-stage allocation of organs—that is, selection of recipients from the waiting list—is a randomized process overseen by UNOS, with the basis for random assortment determined by the nature of the organ and the possibility of alternative treatments. The choice of this method of distribution in no small part resulted from James Childress's reasoned arguments and active involvement in the creation of UNOS's policies. In general, then, arguments for the fairness of randomization may no longer be needed for the point of allocation, but attention—and reasoned argument—can now be directed toward the first stage of assessment, in which decisions are made to enroll patients on the waiting list. It is primarily this stage, the determination of medical “acceptability,” that I explore here.This article probes the medical utility/social utility distinction in a number of ways, informed by the conclusion of the third essay in the Practical Reasoning in Bioethics series, in which Childress acknowledges the enduring difficulties of articulating theoretical commitments to fairness as effective policies that can adapt well to changes in medicine and in social valuings. He ends that essay with modest restraint concerning the role of ethical theory in such matters: The task for ethics is more that of illuminating the ethical presuppositions and implications of the choices we have to make in the real world, in response to such questions as how organs should be distributed and allocated and whether organ transplants should receive societal funds. Those questions arise in a complex mix of social, political, scientific, medical, and other factors. “Illumination” rather than “resolution” is the main contribution of ethical theory, and it properly takes the form of “practical ethics” rather than “applied ethics.” (1997a, 236) Following Childress's lead, I wish to illuminate the continuing practical struggle to define and achieve fairness in allocation and, specifically, to attend thoughtfully to the cracks “through which criteria of social worth [can] sneak back in” (Zussman 1992, 211, cited in Childress 1997b, 211) to considerations of distribution. I take two paths to that end. First, I examine the interplay of medical and social utility considerations in certain current practices of selecting patients to be added to the list of persons awaiting organ transplantation. Empirical evidence indicates that there continues to be significant resistance to reliance on modes of random selection for the allocation of these scarce resources, the method for which Childress has argued so cogently. This resistance, or so I argue, may be perceived in ambivalences, assumptions, and debates within the listing process, before control over selection is released to randomized allocation. Second, I investigate, on a speculative basis, this resistance to randomization, in regard to its possible origins, to its apparent incorrigibility, and to whether it itself illuminates an important moral argument that may usefully complement Childress's position.What I am identifying as resistance to randomization is displayed in the critical response to “Who Shall Live When Not All Can Live?” by Ralph P. Forsberg, to which Childress devotes several pages of his postscript in rebuttal. Forsberg characterizes randomization as equivalent to a “throw of the dice” (Forsberg 1995, 33, cited in Childress 1997c, 189), insisting that such gaming trivializes or even discards the very personal dignity that Childress wishes to maintain by a random process of allocation (Childress 1997c, 187). It can, of course, be argued that a random method of distribution, when applied to the allocation of donated organs or, for that matter, to the allotment of kidney and liver diseases themselves is too complex a matter to be accurately or fairly depicted as the simple equivalent of dice tossing, but Forsberg may be taken as representative of a rhetorically forceful “no dice” argument that rejects the notion that randomization can be an ethically sound practice in situations of such weighty medical need. In what follows, it is part of my argument that, faced with federally enforced randomness—the putative dice game that is allocation from the UNOS waiting list—transplant teams may attempt to exercise significant utilitarian control over which patients enter into the “game.”Indeed, it may be that, despite UNOS policies, differing stances on allocation have changed little since the spring 1970 seminar at the University of Virginia at which Childress presented the draft of his article and received the criticisms of the physician then responsible for the renal dialysis program at the university's medical center, Frederic B. Westervelt.4 Although Westervelt seemed insufficiently suspicious of settled practices and perceptions that had already institutionalized and naturalized judgments of social worth, he nevertheless articulated a position that appears to carry continuing moral weight within the medical community.5 He wrote, “Triage should remain the purview of those answerable for the program…. The key to responsible action lies with the responsible physician” (1970, 362)—a claim worth investigating.Since 1998, the University of Virginia undergraduate bioethics program has offered each semester a bioethics internship seminar, for which I am the instructor. The course is open to approximately ten advanced students, each of whom is placed in a clinical setting under the supervision of a medical professional working there. The intern's task is to observe and characterize ethical issues particular to the placement and to analyze one such issue in depth as the final project for the course. In 2001, the Charles O. Strickler Transplant Program, which handles transplantation of kidneys and livers in the university's medical center, became one of the placements available for interns. Of twenty-two students who have completed a semester's internship there to date, thirteen have written their final analyses on questions concerning the first or second stage or both stages of organ allocation (the other nine have written on issues to do with organ donors and with the promotion of donation). Eight of the thirteen have focused on factors affecting the medical team's decision to register a patient on the list of potential organ recipients and the other five on matters pertaining to the second stage, such as methods of regionalizing distribution and permission for patients to be listed by multiple transplant centers. The eight first-stage papers together offer a revealing window into one medical team's practical interpretations of “medical utility” and elision of medical criteria and social assessments. They also, more generally, highlight the dearth of empirical evidence that might clarify the presumed relation between certain social judgments and the likelihood of a “successful” transplant.6The eight paper topics represent a spectrum of issues that haunt the listing process. They explore the assessment and ethical relevance of potential recipients' ability to pay; criminal status; body weight; use or abuse of intoxicating substances; likelihood of adherence to medical recommendations; and overall psychosocial health, including the presence or absence of robust support systems; as well as the lack of nationally standardized listing criteria. This last point was raised for one student-intern when she observed a situation in which a patient, denied listing in another liver transplant program, was placed on the waiting list by the University of Virginia program and, her situation being urgent, soon received a donor liver. The grafted liver survived only a few days in its new host because the patient, based on her long-standing religious beliefs, steadfastly refused the infusion of blood products, the reason she had been turned down by the other program. From the student's perspective, the decision to list and then to allow the transplantation of a donated liver into this patient was an egregious example of poor stewardship of such a very scarce resource. Her paper examines the possibility of standardizing (and enforcing) national criteria for listing that might prevent future instances of what she considered to be a significant deviation from justice and from utility.7The UNOS Ethics Committee—on which Childress has served several terms—in 1993 issued guidelines for selecting patients for the waiting list, “General Considerations in Assessment for Transplant Candidacy,” which was then revised in 2009.8 The guidance is brief and nondirective for the most part, doing little more than pointing out factors that trouble listing decisions—organ failure as a result of voluntary behaviors, likelihood of adherence to medical recommendations, and others—and urging “appropriate” consideration in light of them. The 2009 revisions added a slightly stronger punch in places—“Where possible, barriers to transplant candidacy should be addressed and overcome”—but there remains no standardized, enforceable regulation or monitoring of listing decisions made by individual transplant teams. UNOS/OPTN (Organ Procurement and Transplantation Network) relies on responsible stewardship by its member programs, which generally defer to the sense of responsibility of its physician staff, primarily transplant surgeons. It is as Westervelt wrote in 1970: “The key to responsible action lies with the responsible physician” (362).But to what are physicians responding? The students' papers disclose two simultaneous phenomena. On the one hand, the medical staff takes its stewardship of organs very seriously, engaging in prolonged discussions—sometimes including wrenching self-examinations and heated debates—in order to make appropriate decisions about hard cases. For transplant teams, hard cases tend to be ones in which predictions of success from transplant are mixed. For example, a young, otherwise healthy person in acute liver failure from an impulsive acetaminophen overdose would seem to have an excellent chance for a good outcome. However, if that person also suffers from major depression, lacks a strong social support network, uses alcohol regularly, or has no fixed source of income, the chances of success indicated by his or her age and state of health are countered by significant risks of failure.9 Responsible stewards must nevertheless reach a conclusion about such a patient's medical acceptability, the likelihood that he or she will benefit from the transplant. It would be a mistake simply to dismiss the troubled deliberations of conscientious professionals, acting in good faith, as exercises in unwarranted discrimination.On the other hand, judgments of social utility, perhaps inevitably, do seep into the fissures left by the ambiguity or multivalence of “responsibility.” Consider the question of illegal use or abuse of certain substances by persons in need of a liver transplant.10 The association of alcohol use with liver disease is clear, but the evidence is missing or inconclusive for other drugs of abuse. There is, for example, no substantial evidence that regular marijuana use damages the liver. Yet programs routinely require that patients seeking a transplant abstain from marijuana use for six months before they may be registered on the waiting list—the same requirement as for sobriety from alcohol.11 The arguments given in support of this practice tend to be of two kinds. One notes the common presence of certain opportunistic infectious agents in marijuana that can cause life-threatening disease in the immunosuppressed organ recipient and asserts that pretransplant abstention is an important predictor of and aid toward necessary posttransplant abstinence. The other claims a relation between marijuana use and what one might call general fecklessness, a “slacker dude” picture of someone unlikely to adhere (or even pay attention) to the rigorous posttransplant regimen of medications and follow-up medical evaluations proved to be highly important for long-term survival of the grafted organ. This latter point, however, loses much of its effectiveness when it is seen that exclusion of marijuana users also applies to those who did not use the drug until it was prescribed for relief of symptoms caused by their failing liver.12Related problems exist with the outright exclusion of transplant candidates who are significantly overweight, or the requirement of documented weight loss by means of a monitored weight-reduction regimen undertaken for some months before listing can be considered.13 There is reliable evidence that extreme obesity is associated with significant decreases in graft survival, as well as with major complications of the operative procedure itself, but it is far from clear at what point increased weight becomes enough of a problem to warrant exclusion, and equally unclear is the degree to which commonly used gauges of obesity, such as body mass index, correlate with outcomes. Moreover, lower socioeconomic status, including limited access to routine health care, is a major risk factor for the development of obesity, and obesity is, in turn, a major risk factor for the development of diabetes and hypertension, the most common causes of kidney failure—a causal chain that makes this exclusion particularly troubling when viewed through the lens of justice.Most health professionals—like most of the general public—hold and display significant bias against obese persons, much as they do in regard to patients who routinely smoke marijuana.14 It is not too big a stretch to think that these judgments of social worth shape judgments of medical “acceptability,” straying far from the ideal of equal regard, or to suggest that the tacit answer by the medical team to Childress's question, “Who shall live when not all can live?” may often be “Those most like us.”Each of the student-interns who has written on one of these aspects of listing practice has questioned whether the transplant program offers sufficient help to patients who must meet certain requirements before they can be added to the waiting list, puzzling over the extent of the program's responsibility in this regard. Alcoholic patients are routinely sent to Alcoholics Anonymous, while users of other drugs are only sometimes sent to Narcotics Anonymous. Many transplant centers have nutritionists on their teams, but few offer monitored weight-loss programs.When the focus shifts from these individual “physical” barriers to transplantation toward more clearly “social” barriers—lack of reliable means of communication and transportation, lack of strong support networks, inadequate financial means to meet the considerable expense of posttransplant care—the questions about exclusionary criteria and about help in overcoming them become even more difficult.15 To what extent is a transplant program responsible for providing the social supports that foster good outcomes? Many have noted that, as with body weight criteria, the very factors—that is, social as well as financial impoverishment—that may have been significant contributors to the person's organ failure also serve as potentially insurmountable obstacles to effective treatment. In such a situation, is it incumbent upon a medical program to provide a telephone, taxi service, loan, or group of friends in order to make transplant a possibility for a patient? The UNOS/OPTN guide—“Where possible, barriers to transplant candidacy should be addressed and overcome”—while unexceptionable, seems a dim lamp indeed for the path to ethical practices. On the other hand, in the absence of the social and political will to fund health care fully and of sufficient evidence to establish firmly the relation of these various deprivations to transplant outcomes, one would be hard pressed to devise recommendations that would both shed more light and be practicable.As I suggested earlier in this article, it may be that, despite the passage of 40 years of medical advances and ethical contributions, little has changed in medical thinking about “acceptability” for transplant since Frederic Westervelt responded to Childress's proposal for randomized selection of dialysis and organ recipients. One can read the seepage of social worth criteria into the first stage, the decision to list—or, perhaps more accurately, the continuing failure to eradicate social worth criteria from that decision—as an attempt by physicians and the other medical professionals involved to exert as much control on allocation as possible before releasing the patient into the randomized second stage. As Westervelt wrote, “A selection process would be derelict if it did not seek the ‘most suitable’ of those suitable” (1970, 359). One can then interpret that apparent effort at control in a number of ways: negatively, as a conscious and unrepentant willingness to deploy discriminatory social biases in the service of a particular view of human value; positively, as an expression of the sense of responsibility alluded to by Westervelt; or, more neutrally, as a reflection of a familiar and apparently generalized resistance to allowing randomness any important role in human affairs.I set aside the negative construal from consideration in this article, both in the interest of charity and with the assumption that, although such motivations may be present in particular individuals, it is not likely that they would characterize the considered judgments of a team of medical professionals representing a variety of backgrounds and belief systems and more or less committed to the mission of the transplant program. This is not to say that such biases are not present as relatively unexamined or even subconscious presumptions about what constitutes “suitability”—as noted both in Westervelt's response and in the discussion of criteria relating to drug use and body weight—but rather that portraying the situation as one of simply venal manipulation for purposes of social engineering would be neither accurate nor fruitful.In regard to the more positive assumption that attempts to control the selection process are an expression of a deep-seated sense of responsibility, Westervelt is surely right when he points to the central importance of the “responsible physician,” though one can and should expand his attribution to include other medical professionals—nurses, social workers, therapists, and others—whose perspectives are integral to a transplant program's policies, practices, and decisions. However, what is elided in that claim is the reality of multiple responsibilities borne by any transplant program, as by any health professional, and the difficulty of assorting their priority in any given situation. Responsibility is due to individual patients, the program's patients as a whole, and the viability of the program itself; the institution housing the program; colleagues and self; the education of students, the continuing education of team members, and the creation of new knowledge through research; organ donors, potential donors, and the organs themselves (in the sense of stewardship and the prevention of waste); society and its governance; and so on. Team members, for example, may feel both a strong obligation to be good stewards of donated organs and an equally strong obligation to act for the benefit of the particular patient with whom they are dealing in the moment, valid and compelling responsibilities that inevitably come into conflict at times.One student-intern told of observing, over a two-month period, the struggle within the team about whether to list a critically ill patient whose first transplanted liver had failed. The patient had a number of serious infections and, it was generally agreed, little or no chance of surviving with or without a retransplant. Yet one physician on the team persistently argued in favor of listing the patient, in full knowledge that the urgency of his condition meant that he was likely to receive an organ quickly upon being listed.16 The student reported this interchange from a contentious team meeting: “One member of the transplant team, in favor of giving Mr. V a new liver, asked, ‘Is our goal as a team to shepherd our patient through life or to be a guardian of the waiting list? As far as I am concerned, I have one patient’ (referring to Mr. V). Another member of the transplant team retorted, ‘I have twenty more. If you transplant Mr. V, someone else who I am caring for will die.’”17 The physician in favor of allowing a second transplant prevailed. Mr. V received a new liver within hours of being listed and died the next day. Given his words and actions, the physician seems to have understood himself to be enacting appropriately his responsibility to his patient, yet he appears to have violated several other responsibilities in doing so. There is no avoiding the necessity of choosing to honor some responsibilities and not others, but a reasonable response to this story would surely question the physician's choices and wonder whether we can do a better job of illuminating and communicating the complex nature and differential weights of professional obligations in such situations.Medical professionals want to get it right, to enact their responsibilities well, and they seem generally to believe—as, one might assume, do most human beings—that doing so requires that they have some control over what is happening, the choices that are made, so that decisions remain in the hands of those who feel, and will continue to feel, responsible for what ensues. Reluctance to leave crucial choices to a system of random selection may reflect this sense of responsibility, a sense that, it can be argued, may be exaggerated in physicians and other medical professionals who do bear significant obligations to protect or restore the well-being of others. But, as Margaret Urban Walker and others have emphasized, it is part of the human condition not just to feel responsible but truly to be responsible for far more than what is actually under our control (2003, 21–34; 1998, 77–100).A crucial task of ethics may be not to diminish a transplant team's sense of responsibility but to expand it to include obligations also to respect, protect, or restore fairness, as far as may be possible, to situations that seem inherently unfair, such as those of diseases that result in the failure of vital organs. Even in situations in which it seems possible to ascribe responsibility for the disease to its sufferer, as for an alcoholic's cirrhotic liver failure, ethics can remind us of the complex etiology of the diseases (both alcoholism and cirrhosis) and of the always imperfect correlation of responsibility and control. Stewardship includes among its objects not only scarce donated organs but also irreplaceable persons who need those organs, and whose humanity demands that they, too, be treated fairly, not held in thrall to the biases of those who serve as gatekeepers to the treatment that can save their equally valuable lives.Childress's clear and restrained arguments, his careful distinctions defining the porous boundary between medical and social utility, help us think about what the ordering of responsibilities might look like, in the interest of fairness and with commitment to equal regard. Nevertheless, in practice it is not clear that equal regard can carry the day. The persistence of social worth criteria, masquerading as factors implicated in the “success” of the transplant, suggests a less than robust commitment to equal regard generally. It may well be that in this, as in so much else, medical professionals think and act much like other human beings who, political correctness aside, often seem to find it hard to hold on to the abstract idea that all are not only created equal but also continue to bear fundamentally equal value regardless of moral or social assessments of their physical features, actions, or achievements.Childress explains that neither medical utility (1997a, 224) nor randomized selection (1997c, 185–86) opposes or violates fairness; each is a fair approach when employed appropriately, in situations in which it represents a just and equitable method of deciding. Yet many seem unconvinced, particularly by the claim of fairness for random selection as a method.18 It seems difficult for striving, self-assessing human beings to attribute fairness—or moral goodness more generally—to any system of selection that does not attend to differential merit. For many persons, whether engaged in the transplant community or observing its practices, the question of whether to list patients with medical conditions whose cause is hidden within complicated entanglements of choice and chance finds its resolution less in evidence about likely success of the procedure than in beliefs about the worthiness of those who have led impure or otherwise irresponsible lives. As one example from my experience as a medical educator, reminding young doctors that it is lar