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Non-Heart-Beating Organ Donation: A Defense of the Required Determination of Death

Published online by Cambridge University Press:  01 January 2021

James M. DuBois
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The family of a patient who is unconscious and respirator-dependent has made a decision to discontinue medical treatment. The patient had signed a donor card. The family wants to respect this decision, and agrees to non-heart-beating organ donation. Consequently, as the patient is weaned from the ventilator, he is prepped for organ explantation. Two minutes after the patient goes into cardiac arrest, he is declared dead and the transplant team arrives to begin organ procurement. At the time retrieval begins, it is not certain that the patient's brain is dead or that cardiac function cannot be restored. Procurement follows uneventfully, and two transplantable kidneys are retrieved.

Many people now consider such cases of non-heart-beating organ donation to be ethically permissible. However, widespread disagreement persists as to how such practices are to be justified and whether such practices are compatible with the Uniform Declaration of Death Act (UDDA). In this paper, I argue that non-heart-beating organ donation can be ethically justified, that in the justified cases the patients are in fact dead, and that the early declarations of death required for such donation do comply with the UDDA.

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Article
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Journal of Law, Medicine & Ethics , Volume 27 , Issue 2 , Summer 1999 , pp. 126 - 136
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Copyright © American Society of Law, Medicine and Ethics 1999

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References

The “dead-donor rule” is a name loosely used to denote two related and widely accepted ethical norms: “vital organs should only be taken from dead patients, and correlatively, living patients must not be killed by organ retrieval.” Youngner, S.J. Arnold, R.M., “Ethical, Psychological, and Public Policy Implications of Procuring Organs from Non-Heart-Beating Cadaver Donors,” JAMA, 269 (1993): 2769–74, at 2771. Although it is typically discussed as an ethical norm governing organ procurement, it is generally assumed that a violation of it, even with consent, would constitute euthanasia and violate state laws.CrossRefGoogle Scholar
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Throughout this paper, I will refer to circulatory-respiratory (CR) criteria rather than to the more common cardiopulmonary criteria. Though this is somewhat more cumbersome, a rationale for this choice is provided in Shewmon, D.A., “Brainstem Death, Brain Death, and Death: A Critical Re-Evaluation of the Purported Equivalence,” Issues in Law and Medicine, 14 (1998): 125–45. D. Alan Shewmon writes: “Neither spontaneous heartbeat nor breathing through the lungs is essential for life (as cardiopulmonary bypass machines effectively prove), but circulation and chemical respiration are.” Id. at 126. Moreover, the term cardiopulmonary death might be taken by some to denote death of the heart and lungs, rather than death of the whole organism using CR criteria.Google Scholar
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Though familiar with many aspect of resuscitation, in 80 percent of the cases, the non-NDE patients' accounts included obvious errors, such as describing medical resuscitation as involving mouth-to-mouth resuscitation, presenting misconceptions about cardiac massage (for example, as involving a blow to the back, hitting the solar plexus, massaging the heart muscle directly with one's hands), or misconceptions about cardiac defibrillation and how the electric shock is delivered. Most of Sabom's NDE group reported fairly nonspecific descriptions of the events surrounding resuscitation, claiming that their attention was more focused on the NDE event itself and the amazing emotions. However, what was reported by these groups appears consistent with what happened and no errors were found. In the six cases he examined in which specific descriptions were given, the reports appeared extremely accurate and veridical. See Recollections of Death, supra note 35.Google Scholar
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I am not simply repeating the views of Tomlinson, supra note 9. Tomlinson defends the idea that the Pittsburgh protocol for NHBDs provides an ethical determination of death. However, he contrasts this with a determination of ontological death. Although I agree that the Pittsburgh protocol uses an ethically adequate notion of irreversibility, irreversibility is not a necessary characteristic of ontological death.Google Scholar
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Although a slim chance exists that my wife has an identical twin of whom I know nothing, marital fidelity does not require that I inquire into this before I go to bed with the person I take to be my wife. Moral certainty tolerates such slim chances, and, though it does lead to blunders from time to time, it does not lead to culpable blunders.Google Scholar
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I possess anecdotal evidence that this already happens. After a critique of brain death was published in the bioethical literature, I—a bioethics consultant—received three letters from organ recipients, asking whether organ transplantation is immoral due to the source of donated organs.Google Scholar
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Among those who agree that physicians should never kill, some have asked whether it would be wrong to harvest vital organs prior to death if, in certain highly controlled situations, harvesting does not hasten death. (That is, they ask whether we could use a weak version of the dead-donor rule.) Two things can be said in response. First, proposals of this sort typically only arise because individuals do not accept brain death or the CR criteria proposed here for determining death of the human being. They then paint pictures in which a brain-dead patient (not dead according to their criteria) is put on cardiopulmonary bypass, the heart is removed, and then the patient is allowed to die as cardiopulmonary life-support is withdrawn. See Luetz, M., “Organspende ist keine Toetung auf Verlangen,” in Hoff, In der Smitten, supra note 27, at 496–99. Alternatively, they describe a situation in which a NHBD has kidneys removed prior to death, but at a point when loss of kidneys will not cause death, because the heart has stopped beating and anoxia will kill the patient. See Shewmon, supra note 3. I disagree that such donors are not already dead. Because such donors are the only candidates in which vital organs could theoretically be procured without hastening death, it follows that there are no such cases. Second, some of the concerns that lead one to respect the dead-donor rule may also lead one to reject use of the weak version of the dead-donor rule. At least in the scenario depicted by Luetz, a cause of death is still introduced, one that hastens the strictest medical irreversibility of the state of CR loss—a form of irreversibility that is essential to death in their accounts. Thus, the issues of dominion and public perception again arise.Google Scholar