The Limits of Informed Consent

Just an essay I wrote investigating when consent is and is not sufficient to render actions morally permissible.

1. Introduction

Normally, consent renders actions morally permissible when they would otherwise be impermissible (Wertheimer, 2000). If one takes another's possessions against their will, it is theft, but if one gains consent, the act is no longer morally impermissible. The same principle applies in sexual relations and in cases of physical harm.

Consent must be "informed, voluntary, and decisionally-capacitated" (Eyal, 2019). In other words, the consentee must be capable of consent, free of coercive influences, and fully informed about the decision at hand. If all of these conditions are met, consent may make an act permissible.

This is not true in all cases, however. Consider the case of Jeffery Locker, a motivational speaker from Long Island who paid another man, Kenneth Minor, to kill him on a Harlem streetcorner so that his family would collect his 12 million dollar life insurance payout (Aronofsky & DiFiore, 2012). What appears to be a fully consenting agreement between two adults still remains a morally reprehensible act.

This essay identifies two distinct subcategories of scenarios in which actions may be morally impermissible even if consented to by all parties. Firstly, such actions are impermissible in cases where said actions harm the future well-being of any participating parties. Secondly, consensual agreements may be impermissible if they are unconscionable (i.e. if they are significantly unfair).

2. On Obligations to a Future Self

One major set of cases where actions may still be morally impermissible even if consented into by all parties is if they are of significant detriment to the future choice and autonomy of any one of the moral agents involved. Consider the following thought experiments, which exemplify this set of morally impermissible actions.

The first thought experiment involves euthanasia. For context, in the vast majority of liberal democracies, euthanasia is only legally permitted for individuals with terminal health conditions, with the aim of alleviating intractable suffering. The thought experiment is as follows. A young adult, with no terminal ailment of any kind, is looking to undergo euthanasia. After thorough psychological evaluation, it is determined that this person possesses no mental illness and that their decision to euthanize is completely rational. A doctor assigned to review the case approves the patient for a lethal dose of barbiturates. Is this agreement morally permissible? Most would agree that it is not, even if they believe that euthanasia for patients with terminal illness is permissible.

Consider a second thought experiment. Suppose an adult, again of completely rational mind, signs a contract with another consenting adult to enter into absolute servitude for the next 25 years. During this time, the "servant" is under the complete control of the contract holder, who may order them to do whatever they so wish. Is this agreement morally permissible? Our intuitions, again, point to this agreement being impermissible.

The third thought experiment is the scenario presented in the introduction. As with the previous two thought experiments, we consider this morally impermissible.

In all of these cases, even though all agents have consented to an action, we still consider it to be morally impermissible. Why? One explanation is that there exists some moral obligation to our future selves that is violated by us making a present decision that makes our future selves meaningfully worse off. In the first and third cases, the decision to end a person's life prevents a future version of that person from existing. In the second case, the decision to enter into the contract deprives a future self of free choice.

The relevant question to answer is this: how is it possible that we can owe obligations to a future version of ourselves or others, given that we are still the same moral agents? One answer is to reject the premise that we are continuous moral persons. In his 1987 work of moral philosophy, Reasons and Persons, British philosopher Derek Parfit argues that personal identity is time-discontinuous; there is no way to conclude that any two versions of a person at different points in time are the "same" moral entity.

Parfit provides the following thought experiment to support his argument. Consider a person with a brain with two hemispheres that are exactly identical. They have two twins who each have half of their brain missing. The individual with a whole brain then has half of their brain transplanted into each of the twins, forming two surviving persons with whole brains. What happens to the original person's identity? Parfit believes there are three possible answers. "I do not survive; (2) I survive as one of the two people; (3) I survive as both" (Parfit, 1971).

Parfit believes that the first and second options are incorrect. Most would agree that a person survives if their whole brain is successfully transplanted into another's body. What is different about both halves of the brain being successfully transplanted into different bodies? Therefore, the original person must survive as both people. However, this conclusion is incompatible with traditional views of personal identity, which must satisfy a "one-one" relation (i.e. there cannot exist a scenario where two numerically distinct persons have the same identity) (Williams, 1956). Parfit concludes that personal identity is "not what matters." Instead, what matters is psychological continuity (our memories, personality, and mental faculties) that results from adequate cause. Parfit terms this relationship "Relation R" (Parfit, 1971).

Parfit then asks: if the only factors defining our personal identity are our memories, aspirations, and personalities, what happens to our identity when those traits change? Over the course of our lives, we gain new experiences, form new relationships, and develop new motivations. Parfit's conclusion is that our current and future selves must have different identities. As such, we also owe moral obligations to our future selves, just as we would owe moral obligations to others (Parfit, 1984).

Revisiting the original three thought experiments, Parfit's conclusion suggests that we owe our future selves life, which is violated in the case of voluntary euthanasia or murder, and liberty, which is violated in the case of contractual servitude.

To what extent, however, should these obligations apply? In his book, Parfit only argues that these obligations render smoking morally impermissible, but the logical extension of his argument would be that it is impermissible to undergo a vasectomy or tubal ligation procedure, as one's future self has not consented to sterility (Parfit, 1984). By the same token, any form of euthanasia, for patients with terminal illnesses, should also be impermissible.

We can infer that there must be a side constraint on our obligations to our future selves; if an action has too great a cost on our present self, it can be foregone permissibly even if it would lead to some benefit to our future self. In the case of sterilization procedures, the imposition on a future self is insufficient to justify a present sacrifice of choice. In the case of euthanasia for the terminally ill, the number of possible future selves is limited such that we ought prioritize alleviation of suffering for the present self.

Regardless, Parfit's formulation of future personhood seems to provide an adequate justification for the impermissibility of actions that significantly harm one's future self.

3. On Unconscionable Bargains

A second subset of actions that are morally impermissible even with full consent is in cases of unconscionability - agreements which are so grossly unfair that they shock the conscience (Cornell Law School). Consider the case of an employer offering, and an impoverished worker consenting to, a job far below the minimum wage. Our intuitions point to this being morally impermissible, which is why minimum wage laws exist to begin with. Why might this be the case?

One explanation for the impermissibility of this contract is that the prospective employee could not consent into the agreement, given the pressing nature of their financial circumstances; in other words, they were "coerced" by their circumstances into taking the deal. It is worth questioning, however, if this situation is actually coercive.

The philosophical consensus is that coercion constitutes "one person (the coercer) threatening to make another person (the victim) worse off if he does not comply with the coercer's demands" (Millum, 2013). The paradigmatic example of coercion is that of a back-alley robber holding a gun to a passerby's head and demanding valuables. In this analogy, the robber is coercing the victim because they are threatening to make the victim worse off than they were before the encounter.

However, this definition of coercion does not seem to apply to cases where a person simply has strong reason to prefer one option over another, but is not made worse off than before the offer was made. Consider the following thought experiment. A billionaire offers a potentially life changing sum of money to anyone who will do something unpleasant - eat a slice of durian, for example. Is this coercive? Most would agree that it is not. In this scenario, not taking the deal and not receiving the money does not make one worse off than in an alternate world where no offer was made. Therefore, the agreement cannot be coercive.

Returning to our original thought experiment, a person is not made worse off than they normally are if they do not take the job. As with the case of the billionaire, this contract is not coercive.

However, despite this agreement not being coercive, we still consider it morally impermissible, suggesting that there are parameters besides consent that determine the permissibility of such an action. One such parameter may be exploitation.

Exploitation occurs when moral agent A takes unfair advantage of, or derives unfair benefit from B. Exploitation is different from coercion in that it may exist even when an agreement appears to be mutually advantageous. Consider the example of a merchant who stumbles upon dehydrated hiker lost in the desert and offers to sell them a bottle of water for 1000 dollars. This agreement appears to be mutually beneficial. The hiker values their life more than the 1000 dollars they paid for the water, and the seller values the 1000 dollars they receive more than the water bottle. Despite both parties being better off than if the transaction did not occur, this agreement is still unjustified, because the hiker is worse off relative to a baseline where they would have been fairly treated (Wertheimer, 1999).

Similarly, in the case of below minimum wage employment, the worker has been made worse off than they should have been, had they been fairly compensated for their work.

One obvious objection arises to this argument. If it is morally impermissible to be undercompensated for one's labour, how can volunteer work or unpaid internships be permissible? The answer lies in the intentions of the action in question. A volunteer and unpaid intern believe they have been fairly compensated for their labour with the intangible benefits of their work - the satisfaction of helping others in need, or work experience, for example. In the case of the below minimum wage job, however, the aim of the indigent employee is to earn a living. Inadequate remuneration, therefore, is unfair.

Amongst nearly all forms of unconscionable agreements, there is a common thread - despite parties consenting into them, such agreements are impermissible on grounds of exploitation and unfairness.

4. Conclusion

As should by now be obvious, any discussion of consent and permissibility is fraught with complicated questions about personal identity, fairness, and moral desert. We identify two distinct categories where actions are impermissible even if they are rationally and completely consented into by participating parties. Using Derek Parfit's conception of future personhood, we argue that actions may be rendered impermissible to preserve the autonomy of future selves. Additionally, we show that in cases of unconscionability, like that of a below minimum wage job, contracts may be consensual, but still impermissible because they violate principles of fairness.

5. Bibliography

Aronofsky, P., & DiFiore, E. (2012, April 28). Did Jeffery Locker hire his own killer? CBS News. Retrieved June 28, 2022, from https://www.cbsnews.com/news/did-jeffery-locker-hire-his-own-killer/

Cornell Law School. (n.d.). Unconscionability. Legal Information Institute. Retrieved June 28, 2022, from https://www.law.cornell.edu/wex/unconscionability

Eyal, N. (2019, January 16). Informed Consent. Stanford Encyclopedia of Philosophy. Retrieved June 28, 2022, from https://plato.stanford.edu/entries/informed-consent/

Millum, J. (2013). Consent under pressure: The puzzle of third party coercion. Ethical Theory and Moral Practice, 17(1), 113-127. https://doi.org/10.1007/s10677-013-9419-2

Parfit, D. (1971). Personal identity. The Philosophical Review, 80(1), 3. https://doi.org/10.2307/2184309

Parfit, D. (1984). Reasons and Persons. Oxford University Press.

Wertheimer, A. (1999). Exploitation. Princeton University Press.

Wertheimer, A. (2000). What is consent? and is it important? Buffalo Criminal Law Review, 3(2), 557-583. https://doi.org/10.1525/nclr.2000.3.2.557

Williams, B. A. O. (1956). Personal Identity and Individuation. Proceedings of the Aristotelian Society, 57, 229-252. http://www.jstor.org/stable/4544578