In a remarkably candid article about organ donation in the New England Journal of Medicine (NEJM), a doctor and a bioethicist have made the unnerving observation that, in cases involving vital organs, many “donors” may not actually be dead at the time their organs are taken from them. While this statement corroborates the view of many pro-life groups, scientists, and physicians, it is likely to be news to the general public.
Here’s a remarkable article from Touchstone Magazine, penned by Anita Kuhn – the managing editor. It’s long, but well worth reading:
In their (NEJM) article, published online on August 14, 2008, Dr. Robert D. Truog of Harvard Medical Center and Children’s Hospital Boston, and Dr. Franklin G. Miller, a bioethicist at the National Institutes of Health in Bethesda, Maryland, note that organ donation has been guided from its inception by the “dead donor rule,” which “simply states that patients must be declared dead before the removal of any vital organs for transplantation.” The traditional criteria for determining death, they note, was “straightforward: patients were dead when they were cold, blue, and stiff.”
Death Newly Defined
The problem for transplant medicine is that by the time many organs, especially vital organs, are extracted from such donors’ bodies, they are no longer usable for transplantation. So, in 1968, a committee formed and headed by Henry K. Beecher at Harvard proposed a new definition of death based on so-called brain-dead criteria: A patient with “devastating neurologic injury” could then be considered eligible for organ removal under the dead donor rule. Brain-dead criteria have been in use ever since.
But, Truog and Miller write, these criteria are problematical because patients whose injuries are entirely intracranial “look very much alive: they are warm and pink; they digest and metabolize food, excrete waste, undergo sexual maturation, and can even reproduce. . . . The arguments about why these patients should be considered dead have never been fully convincing.”
In recent years, another definition of death has been proposed for prospective organ donors: cardiac death. Under cardiac criteria, a patient can be declared dead on the basis of “irreversible cessation of cardiac function” if his heart stops beating for as little as two to five minutes. Such a patient’s vital organs can then be removed for transplant while they are still usable.
But the authors point out that this definition also has problems, centering around the meaning of the term “irreversible.” This word is commonly understood to mean “impossible to reverse,” but it is well known that a patient whose heart has stopped for up to five minutes can often be resuscitated. So in order to meet the criteria of “irreversible cessation of cardiac function,” the word “irreversible” has to be interpreted to mean “we won’t try” to resuscitate rather than “we can’t.” The dishonesty of this becomes apparent in what the authors describe as the paradoxical situation in which a heart declared to have permanently lost all function while in the chest of its original owner may in fact function very well when it has been transplanted into the chest of another person.
Given all this, the authors candidly admit that, with respect to both “brain death” and “cardiac death,” the justification for removing vital organs from patients “cannot be that we are convinced they are really dead.” In these cases, the dead donor rule may be invoked, but it is not followed.
Organs from the Living
Of course, many persons are alive today because they have received organ transplants under just these circumstances. Given the fact that there already is a shortage of viable organs for transplant, the thought of watching even more patients die for lack of organs must be distressing for many doctors who are motivated by a sincere desire to save lives. This may explain why many of them have subscribed to the brain-dead and cardiac-dead definitions despite their untenability. They allow physicians to obtain viable organs while still technically adhering to the dead donor rule.
But as the authors point out, many others see these definitions as having been “gerrymandered” to “conform with conditions that are most favorable for transplantation.” They preserve the appearance of the dead donor rule but undermine its substance. And this, the authors say, is likely to “undermine trust in the transplantation enterprise” right at a time when authorities are trying to encourage more people to become organ donors.
By this point, the reader may conclude that the only rightful course is to call for medical professionals to return to a more faithful adherence to the dead donor rule, even though it would mean not being able to save as many transplant-needing patients as before—at least not until other medical advances are made. The protection of vulnerable patients, the preservation of medicine’s moral integrity, and the restoration of public trust require it.
But that is not the conclusion Truog and Miller reach, and, in fact, they give hints early on that they are not headed this way. The problem, as they see it, lies not with those who redefined death to provide “misleading ethical cover” for the removal of organs from patients who are not really dead, but with the dead donor rule itself. It is the reliance on this rule, they say, not the manipulation of it, that has fostered “conceptual confusion about the ethical requirements of organ donation” and “compromised the goals of transplantation for donors and recipients alike.”
Killing with Consent
Their solution, therefore, is to continue using brain-dead criteria for organ removal, but to put procedures in place to obtain “valid informed consent” from patients or their surrogates ahead of time. Then, not only would it be possible to continue extracting organs from brain-dead patients, but also to obtain them from patients who “have devastating, irreversible neurologic injuries that do not meet the technical requirements of brain death” (emphasis mine).
To those who object that it is unethical to remove vital organs from living patients because the procedure will cause the patients’ death, the authors counter that, where brain-death and cardiac-death criteria are currently being used, “such actions are already taking place on a routine basis.” In other words: We’re already killing patients by removing their vital organs, so let’s keep doing it but just make sure that we have their permission first.
They attempt to bolster this position by equating the removal of a ventilator from a patient—which they cite as “ethically justified” under current standards—with the removal of a vital organ, claiming that in both cases, “the ethically relevant precondition is valid consent by the patient or surrogate.” This fails to take into account two things.
First, there are ethical controversies surrounding the withdrawal of life support in various circumstances; it is not universally regarded as “ethically justified” in all cases. Second, ethical controversies aside, there is a distinction between removing a ventilator and removing a vital organ that needs to be taken into account: The former involves removal of something exterior to the patient, as a result of which he may or may not die right away; the latter involves surgical invasion of the patient’s body and is a directly lethal action in itself. The authors do not bring up any ethical implications arising from this distinction, though they do seem to tacitly acknowledge it by stating that the administration of anesthesia would be an additional ethical requirement for organ removal.
These two “safeguards,” consent and anesthesia, are, for the authors, sufficient to ensure that “no harm or wrong” would be done to a patient whose organs were removed before his death. As a final bolster to this view, they allude to surveys suggesting that “issues related to respect for valid consent and the degree of neurologic injury may be more important to the public than concerns about whether the patient is already dead at the time organs are removed.”
To be fair, the authors are talking only about patients who have “devastating, irreversible neurologic injuries” and are very near death anyway. One can sympathize with the frustration of a doctor who realizes that a few extra minutes of waiting for one patient to be indisputably dead are all that stand between him and another patient’s many years. But those few minutes encompass the momentous difference between waiting on a person’s death and killing him.
As mentioned above, Truog and Miller are remarkably candid in their article, and so they unhesitatingly acknowledge that the dead donor rule has been the overarching ethical guideline for vital organ transplantation from the beginning. They further acknowledge that this rule has appeared so self-evidently necessary to prevent the abuse of vulnerable patients as to not need any “reflection or justification.” Yet, they appear to believe that this rule can now unreflectively be thrown out simply because transplant capability has advanced to the point where following the rule interferes with the goal of “maximiz[ing] the number and quality of organs available to those in need.”
The authors’ “consent and anesthesia” approach may be more honest with patients than “gerrymandering” the definition of death, but it is no less utilitarian. Both are devised to “conform with conditions that are most favorable for transplantation.” Both seek to get around the basic principle that it is wrong to remove a person’s vital organs from him before he is dead.
But at least the definition changers acknowledged the basic validity of the dead donor rule even as they manipulated a way around it. For all their candor, Truog and Miller have implicitly denied the most fundamental principle of all: the right to life, from conception to natural death.
Anita Kuhn is the managing editor of Touchstone. She lives in Chicago, where she attends St. John Cantius Roman Catholic Church.