May 2015, Vol. 8, No. 1 SAJBL 37
The South African (SA) Constitution is committed to
the progressive realisation of the right to healthcare.
However, in South Africa and abroad, it is not always
possible for optimal medical treatment to be provided
for every patient. This is due to resource scarcity:
shortfalls in equipment, personnel, and funds make it impossible for
every person to receive the treatment that would be best for them.
Practitioners and policymakers alike are painfully aware that such
shortfalls mean that allocation decisions will involve trade-offs,
prioritising some patients or patient groups at the expense of others.
But on what basis are such trade-offs made? What criteria should be
used to decide who gets treatment and who does not? It is important
that these criteria are explicit and ethically defensible as they affect
who gets treatment and who does not, who lives and who dies.
It has become increasingly common for ethical theorists in the
developed world to consider employing the criterion of age: where
there is competition for health resources, the young should be
favoured.[2–6] This type of discrimination can be employed at micro-,
meso-, and macro-levels of healthcare allocation. For instance,
at the micro-level of individual practitioner decisions, it could
mean that practitioners do not refer the elderly to more specialised
secondary and tertiary levels of care. At the meso-level of hospital and
practitioner policy, training for geriatric care may be deprioritised. At
the macro-level of national or provincial health decisions, policies may
favour the treatment of HIV/AIDS at the expense of geriatric medicine
programmes because the former predominantly afflicts the young.
Significantly, age discrimination is already practised both tacitly
and explicitly: all of the above are real examples from a South African
health context and many more could be supplied. This is worrisome,
not least since the elderly are a vulnerable population whose rights
require special protection. The Older Persons Act explicitly states
that the elderly are entitled to be respected, to be treated fairly and
equitably, and to be protected against ‘unfair discrimination on any
ground’. This means that it is vitally important to bring out potential
justifications for age discrimination and question whether examples
like those above involve unfairness.
Developed world bioethicists have debated these justifications
extensively. However, bioethicists, healthcare practitioners, and
legal experts in developing world contexts such as SA have been
slower to comment on the ethical significance of age discrimination.
In focusing on a SA context, this article contributes a different
perspective to the broader debate about age-based rationing.
However, the central contribution of the paper is to draw attention
to highly questionable premises that underlie age discrimination,
which nonetheless remain largely unquestioned in SA bioethics and
Many argue that there are good, principled reasons for favouring
the young. In particular, it is sometimes suggested that the elderly
provide a reduced social contribution, that the elderly have already
had their fair share of life, and that they will benefit less from health
resources. I will assess the criteria implicit in each of these claims, and
the extent to which they apply to the elderly, and suggest that they
fail to justify age discrimination.
It’s sometimes thought that the degree to which individuals contribute
to society should play a role in who gets medical resources. For
instance, prioritising breadwinners is thought to be justied because
they have many dependants who rely on them. The elderly on the
other hand are often regarded as a burden on society. Older people
extract a pension and after pensioning age may not contribute as
Interestingly, this type of consideration is reflected in one
of the most prominent measures of the burden of disease: the
Disability Adjusted Life Year (DALY) is endorsed by the World Health
Organization and increasingly by health researchers and the South
African government. The measure commonly ‘weights’ unhealthy
middle years as contributing more to the burden of disease than
unhealthy later years, since those in middle age are likely to provide a
greater social and economic contribution.
However, the social contribution criterion, and the idea that
the elderly contribute less are, respectively, morally and factually
In South Africa and abroad the elderly are systematically discriminated against at all levels of healthcare allocation decision-making. Such
discrimination is perhaps surprising in light of the National Health Act and the Older Persons Act, which explicitly recognise the elderly as a
vulnerable group whose equal rights require special protection. However, ethical theory and public opinion oer some reasons to think that
discrimination against the elderly may be justied. This paper examines possible ethical grounds for age discrimination. I claim that there are
very few cases in which the aged may be discriminated against, and that age alone is never sucient grounds for discrimination.
S Afr J BL 2015;8(1):37-39. DOI:10.7196/SAJBL.374
Youngest rst? Why it is wrong to discriminate against the
elderly in healthcare
C S Wareham, BA, MA, PhD
Steve Biko Centre for Bioethics, Faculty of Health Sciences, University of the Witwatersrand, Johannesburg, South Africa
Corresponding author: Christopher Wareham (firstname.lastname@example.org)
38 May 2015, Vol. 8, No. 1 SAJBL
dubious. If social contribution is a relevant criterion, it requires
discriminating in favour of those regarded as making greater
economic, social and cultural contributions, such as presidents,
politicians, celebrities, factory owners, and rich people who pay more
tax. We would also be forced to discriminate against individuals who
make smaller contributions, such as poor people, children, those
without dependants or jobs, and the mentally ill. All of these provide
a reduced contribution, but healthcare decisions that discriminate
against these groups are rightly regarded as unacceptable.
The social contribution criterion therefore provides grounds for
preferring people we don’t think deserve preference, and for dis-
criminating against groups who require the most social support.
Such a criterion should be rejected. Even if we accepted it, however,
it is false to claim that the elderly contribute less to society. A brief
look at the pages of history will show many elderly figures who
have made disproportionate social contributions. Nelson Mandela
is a prime example of a person who contributed massively well
beyond his 75th year, but the contributions of elderly people are
not limited to those who are famous. In SA, in particular, the aged
are responsible for looking after families decimated by HIV/AIDS.
They are also stores of cultural knowledge that have immense social
It might still be maintained that the elderly make a reduced
economic contribution, since they draw from benefit schemes and
do not earn a wage or pay taxes. However, this contention entirely
ignores the lifetime contributions of the elderly, which surely incur
an obligation of reciprocity. Moreover, it should be noticed that, to
the extent that there is a reduction of economic contribution, this
is in part due to the fact that the elderly are often forced to retire
by mandatory retirement ages. It would be grossly unfair to prevent
someone from working, and then deprive them of medical treatment
because they no longer work.
The social contribution criterion is deeply problematic, as is
the idea that the elderly provide a reduced social contribution.
Discriminating against the elderly in resource allocation decisions
cannot be justified on this basis.
A further attempt at justifying age discrimination is provided by the
idea of a fair innings. Some argue that one goal of health services
should be to ensure that each person has the same opportunity for
a fair number of healthy years: we should all get a fair opportunity to
play the game of life for the same time. Williams suggests that, on
this basis, it may sometimes be justied to discriminate against the
elderly, since they have had a greater share of the good of life. The
young should get healthcare resources, so as to give them a better
opportunity for a ‘complete life’.
The fair innings criterion is certainly more convincing than the social
contribution criterion, and evidence suggests that many people
endorse this reason for deprioritising the elderly. However, the fair
innings view is also ethically questionable. Once again, employing
the criterion would mean discriminating in favour of individuals
we do not think should be preferred. For instance, fetuses have
had only a fraction of their fair innings. Nonetheless, only the most
zealous pro-lifer would think that we should save a fetus’s life over
that of its mother, who has had a greater share of her fair innings. It
could be claimed that the preference for mothers in this case is due
to the fact that the fetus is not a fully-fledged person. As a non-
person, perhaps its share of life should not figure substantially in our
weighing-up. Although many reject the idea that the unborn embryo
is not a person, accepting this controversial view might rescue the fair
innings criterion from one counter-intuitive consequence.
There are, however, additional, less easily escapable criticisms
of the fair innings view. The fair innings requirement might also
condone extreme discrimination against the very old. If one lives
110 good years one has drastically exceeded one’s quotient. Because
the extreme elderly have already had much more than their fair
share, the fair innings argument may recommend denying them
any opportunity to access interventions even if they would benefit
much more than a younger person. Similarly, even inexpensive care
or treatments might be entirely denied to the elderly just because
they have exhausted their fair share of resources. A criterion that
recommends such neglect must be rejected.
Moreover, even if the fair innings criterion were accepted, being
old is an unreliable indicator of fairness: it is often false to say that
an older person has had his or her fair share of life’s goods. Many
older persons will have lived lives of deprivation, hardship and
disability. This is particularly true in nations, such as SA, in which
the vast majority of elderly people have been the victims of unjust
deprivation and discrimination throughout their lives. Often elderly
black persons who have lived through apartheid will not have had
their fair share of life’s goods. If applied correctly, then, the fair
innings criterion may require favouring the elderly in nations such
as our own.
The fair innings requirement seems to have a degree of appeal.
Nonetheless it should once again be clear that the criterion is
flawed. And even if it was not, it provides inadequate grounds for
discriminating against the elderly, particularly in SA.
Degree and likelihood of benet
The strongest basis for discriminating against the elderly is the
principle that we should do the most good and provide the most
benet with the resources at our disposal. This common sense idea is
related to the bioethical principle of benecence and has a theoretical
foundation in utilitarian ethical theory. On the face of it, it seems
likely that more benet will accrue by treating the young rather than
the elderly. A person who receives a heart transplant at the age of 40 is
likely to gain many more healthy life years than a person who receives
a transplant at the age of 85. The older person is likely to have poorer
health and die from other causes before he or she can enjoy the full
benet of the intervention.
Despite its intuitive appeal, though, the benefit criterion has some
unpalatable implications. If we accept it, we should discriminate
against all groups with reduced life expectancy. Smokers and the
overweight become obvious candidates to be deprioritised in health
allocation decisions. Some find this consequence acceptable. Less
easy to defend, though, is the implication that we should discriminate
on grounds of race, class, or occupation. It is an unfortunate fact
that certain races and classes live shorter lives. Similarly, those
in dangerous professions such as soldiers, policemen, and miners
are likely to have reduced life expectancy. The benefit requirement
unacceptably provides grounds for health decisions to discriminate
against these groups along with the elderly.
Nonetheless, as discussed earlier, we do need some method of
May 2015, Vol. 8, No. 1 SAJBL 39
making allocation decisions, and perhaps a refined benefit criterion
is the best of a bad bunch. Even if we accepted a benefit requirement,
though, this would not provide grounds for generalised discrimination
against the elderly. This is because the range of treatments from
which the elderly are less likely to benefit appears to be extremely
limited. These include life-saving treatments with very long-term
benefits, such as organ transplants and heart surgery. Moreover, even
deciding that the elderly should not get these is questionable. There
is huge variability in humans’ age-relative health profiles, which gives
rise to differences in expected healthy life years. This means that it
would be far better to assess individual chances of benefit rather than
generalise according to chronological age.
Once again, the benefit criterion is flawed. And once again, even
its acceptance would not justify blanket discrimination against the
An objection: the elderly are willing to
take a back seat
Before concluding, it is worthwhile to pre-empt a common objection
to the claim of this paper. The objection is that the elderly themselves
often wish for young people to be treated ahead of them. It is
certainly true that the opinions and decisions of the elderly, with
regard to their own care, must be respected. It is arguably wrong for
a practitioner to supply care that any capable patient, old or young,
does not want.
Even so, two responses should be made to this objection. First, it is
highly likely that the elderly themselves may have internalised some
of the above flawed arguments for discrimination. When an elderly
person offers such arguments for favouring the young, there may be
a moral obligation to try to make the person aware of the unsound
basis of their preference.
The second response is that, like many of the arguments in favour of
age discrimination, it rests on a claim that is no more applicable to the
elderly than it is to others. While it is certainly true that some elderly
people prefer that others should be helped first, this is also true of
many younger altruistic people. Moreover, it is true of the elderly far
less often than many people think. It is incorrect to assume that
elderly people simply accept that they should fall further down the
pecking order in resource allocation decisions. Policymakers and
healthcare practitioners should not base discriminatory resource
allocation decisions on this false assumption.
It is not just abuse of the elderly that is wrong. Although such abuse
is abhorrent and must be remedied, it is important to note that
the elderly are discriminated against in more subtle, passive, and
systematic ways. The non-provision of interventions to which they
are as ethically and legally entitled as younger people can be as
damaging as active abuse. As it stands, the elderly are tacitly, explicitly,
and systematically discriminated against at all levels of healthcare.
Policymakers and healthcare practitioners have an ethical and legal
obligation to ensure that the vulnerable elderly should not bear an
unfair burden due to unjustied resource allocation decisions.
In case this obligation to others is not motivational enough, it
is also worth pointing out that it is in each individual’s interest to
undermine unfair discrimination: we all grow old, so it makes sense
to defend our rights before we become vulnerable to their violation.
Acknowledgements. This paper has benetted from fruitful discussions
with members of the Philosophy Department at the University of
Johannesburg, as well as participants at the Philosophy Spring Colloquium
2014. Thanks also to the two anonymous reviewers for probing comments.
1. Republic of South Africa, Constitution of the Republic of South Africa.
Government Gazette 1996.
2. Persad G, Wertheimer A, Emanuel EJ. Principles for allocation of scarce medical interventions.
Lancet 2009;373(9661):423–431. [http://dx.doi.org/10.1016/S0140-6736 (09)60137-9]
3. Williams A. Intergenerational equity: an exploration of the ‘fair innings’ argument.
Health Econ 1997;6(2):117–132.
4. Callahan D. Aging and the ends of medicine. Ann N Y Acad Sci 1988;530(1):125–132.
5. Shaw A. In defence of ageism. J Med Ethics 1994;20(3):188–191.
6. Harris J. Does justice require that we be ageist? Bioethics 1994;8(1):74–83.
7. Dhai A, McQuoid-Mason DJ. Bioethics, Human Rights and Health Law: Principles
and Practice. Cape Town: Juta 2010.
8. Chenwi L (Ed). Economic and social rights in South Africa. Special edition on the
rights of older persons. ESR review 2011;12(1)
9. Republic of South Africa, National Health Act No. 61. Government Gazette 2003.
10. Republic of South Africa. Older Persons Act No. 13. Government Gazette 2006.
11. Murray CJL, Acharya AK. Understanding DALYs. J Health Econ 1997;16(6):703–730.
12. Dolan P, Tsuchiya A. It is the lifetime that matters: public preferences
over maximising health and reducing inequalities in health. J Med Ethics
13. Beauchamp TL, Childress JF. Principles of Biomedical Ethics. Oxford: Oxford
University Press, 2001.
14. Adler NE, Boyce WT, Chesney MA, Folkman S, Syme SL. Socioeconomic
inequalities in health. No easy solution. JAMA 1993;269(24):3140–3145.
15. Zweibel NR, Cassel CK, Karrison T. Public attitudes about the use of chronological
age as a criterion for allocating health care resources. Gerontologist