A call to reject the neurological standard in the determination of death and abandon the dead donor rule.

• Author: Riley, Lauren J.

INTRODUCTION

Advances in life-saving technologies coupled with the growing demand for solid organs have caused the medical community to challenge its traditional understanding of death. Today, most states have adopted the Uniform Determination of Death Act (UDDA), (1) which prescribes two criteria for determining death. The UDDA states that a person is dead when he or she "has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem." (2) The Act further specifies that the determination of death "must be made in accordance with accepted medical standards." (3) These two standards have become known as the cardiopulmonary standard and the neurological standard, respectively.

But the standard for determining death was not always twofold. Prior to the second half of the twentieth century, people had long understood death according to the cardiopulmonary standard, that is, "when a person's heart and circulatory system have permanently and irreversibly ceased to function." (4) However, during the second half of the twentieth century, the advances in intensive care medicine and the growing demand for vital organs set the stage for the development of a new way of determining death. (5) Specifically, by the mid-1960s, medical technology had progressed to the point where ventilators could maintain heart and lung function in patients who had suffered devastating neurological injuries. (6) In addition, "the discovery of cyclosporine in 1978 is thought to have revolutionized the field of transplantation" by helping to prevent organ recipients from rejecting transplanted organs and markedly improving survival rates. (7)

In 1968, Harvard Medical School created a physician-led committee to develop a new set of criteria for the determination of death. The committee's work paved the way for the neurological standard. (8) In a paper entitled, A Definition of Irreversible Coma, (9) the committee concluded that patients who meet the diagnostic criteria for a certain type of brain injury can be pronounced dead before their hearts stop beating. (10)

Then in 1981, the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (Commission) proposed the language for the Uniform Determination of Death Act in Defining Death: Medical, Legal, and Ethical Issues in the Determination of Death. (11) The text accompanying the statute clarified the relationship between the two alternative standards: "in almost all cases of human death the traditional standard [cardiopulmonary standard] should be used, as it always ha[s] been," (12) and "[o]nly in rare cases in which mechanical ventilation is used to support the breathing of a severely brain-injured individual ... should a brain-based standard be employed." (13) However, today, most organs are recovered from donors who meet the neurological criterion24 The Commission's model statute was endorsed by the American Medical Association (AMA), the American Bar Association (ABA), and the National Conference of Commissioners on Uniform State Laws (NCCUSL). (15) The NCCUSL published the statute under the name "Uniform Determination of Death Act" and encouraged states to pass it. (16) The key section of the Act reads as follows:

An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (9) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards. (17) Even though not all states have adopted the exact language of the UDDA, they all have some form of legal recognition for a neurological standard of death. (18) This Note argues that we should reject the neurological criterion and return to using only the cardiopulmonary standard because of the uncertainty surrounding the neurological standard. Evidence has shown that the patients determined dead by the neurological standard exhibit a number of integrative functions, including maintenance of body temperature, proportional growth, sexual maturation, and elimination of waste. Because the majority of cadaveric donors are determined dead by the neurological standard, and the organ supply is already far too low to meet the demand, it is also necessary to abandon the dead donor rule in order to preserve the organ transplantation system. In the absence of the dead donor rule, the ethical integrity of the organ donation process can be grounded in the constitutional right to personal liberty and the common law notion of informed consent.

Part I describes the organ donation system, in which the demand for organs far exceeds the supply. Part II provides a comprehensive overview of the neurological standard for determining death. It discusses the biology behind the integrative functioning of the brain, the cardiopulmonary system, and the respiratory system. It then details the pathophysiology of total brain failure and the clinical tests physicians use to diagnose the condition. This Part also describes the Commission's rationale for using the neurological standard in the determination of death. Finally, this Part distinguishes patients with total brain failure from those in a persistent vegetative state and makes clear that this Note advocates procuring organs only from those with total brain failure and not from patients in a persistent vegetative state.

Part III outlines the main criticisms of the neurological standard, including the uncertainty involved in determining death by this criterion and the fact that patients with total brain failure continue to exhibit certain integrative functions. Part IV describes the possible solutions to the problems associated with the neurological standard, including the use of legal fictions to retain both the neurological criterion and the dead donor rule. This Part also examines Robert Truog's proposal to reject the neurological standard and abandon the dead donor rule. Part V proposes a rejection of the neurological criterion based on the medical profession's struggle with the standard and the risk of the public's confusion about the neurological criterion. This Part also argues that the rationales for the neurological standard offered by the Commission and the 2008 President's Council are undermined by evidence demonstrating a number of integrative functions that patients with total brain failure continue to exhibit. Because rejecting the neurological standard will cause the supply of organs--which is already far too low to meet the demand--to plummet, this Note also proposes abandoning the dead donor rule, so that doctors can continue to procure organs from patients who have suffered total brain failure. Part VI argues that the ethical integrity of organ donation can be grounded in the constitutional right of personal liberty and the notion of informed consent.

1. THE REALITY OF OUR ORGAN TRANSPLANTATION SYSTEM

   Despite debates about the standards for determining death, the one thing scientists, ethicists, legislators, and doctors can all agree on is that our current system of organ donation is failing. The demand for organs far exceeds the supply and thousands of people on the transplant list die each year. Today, doctors can transplant the heart, the kidneys, the pancreas, the lungs, the liver, and the intestines. (19) Doctors also transplant tissues, including eyes, skin, bone, heart valves, and tendons. (20) However, there are significant obstacles to overcome before a donor's organs can be transplanted into another person, including issues of tissue and blood compatibility and organ size, especially when the donor or the recipient is a child. (21) Further, in the case of cadaveric organ donation, the focus of this Note, "the potential donor pool is limited both by cause of death and the health of the organs upon death." (22)

   The United States's organ transplantation system is facilitated by the United Network for Organ Sharing (UNOS), which contains data regarding every organ donation and transplantation occurring in the United States since 1986. (23) UNOS "enables the nation's organ transplant institutions to: [1] register patients for transplants, [2] match donated organs to waiting patients [, and 3] manage the time-sensitive, life-critical data of all patients, before and after their transplants." (24)

   The reality of our organ transplantation system is that the demand for organs far exceeds the supply. The current waiting list for organs indicates that the demand for all organs is 122,596, (25) but in 2011, only 26,246 organs were donated. (26) Sixty percent of people on the waiting list will die while waiting for a donor. (27) Further, approximately 300 new candidates are added to the waiting list each month. (28) The number of people requiring a life-saving transplant continues to rise faster than the number of available donors. (29) It is interesting to note that there are almost as many living donors as there are deceased donors; in 2011, there were 12,958 donors, 7502 of whom were deceased and 5456 of whom were living. (30)

   Organ transplants are now performed for more diseases and conditions than ever before. (31) The increase in the average lifespan has resulted in "a larger pool of the people who are statistically most likely to need organ transplants." (32) And as Americans live longer lives, the supply of cadaveric organs will continue to shrink since the elderly's organs are less suitable for human transplantation than middle-aged people's organs. (33) Further, "[t]ransplantation becomes safer, less time consuming and more pain free with each passing year," thus increasing the demand for organs. (34) Finally, organ transplantation is a more attractive alternative from the financial perspective of insurance companies. As the costs of transplantation have...