I. H. Kerridge et al., Death, Dying and Donation: Organ Transplantation and the Diagnosis of Death.

28 J. MED. ETHICS 89 (2002).

Refusal of organ donation is common, and becoming more frequent. In Australia refusal by families occurred in 56% of cases in 1995 in New South Wales, and had risen to 82% in 1999, becoming the most important determinant of the country's very low organ donation rate. Leading causes of refusal, identified in many studies, include the lack of understanding by families of brain death and its implications, and subsequent reluctance to relegate the body to purely instrumental status. It is an interesting paradox that surveys of the public continue to show considerable support for organ donation programs.

In this article the authors propose that the Australian community may, for good reason, distrust the concept of and criteria for "whole brain death," and the equation of this new concept with death of the human being. They suggest that irreversible loss of circulation should be reinstated as the major defining characteristic of death, but that brain-dead, heart-beating entities remain suitable organ donors despite being alive by this criterion. This presents a major challenge to the "dead donor rule," and would require review of current transplantation legislation. Brain dead entities are suitable donors because of irreversible loss of personhood, accurately and robustly defined by the current brain stem criteria.

The authors maintain that the concepts that underlie brain death are not biologically plausible, may be unacceptable to the community at large, and are inconsistent with the present legal approaches. Organ donation is a socially valuable process, however, the current law appears to be out of step with what is actually happening (or current practice is out of step with the law).

When the concept of brain death was first introduced it was argued that death of the brain stem inevitably implied the imminent death of the whole body. This concept is no longer tenable as medical therapy and intensive care have become increasingly sophisticated at replacing brain stem function. We now know that bodies with a dead brain stem may be kept alive for prolonged periods of time. Brain dead pregnant women have been maintained for months and later given birth to healthy infants and brain dead children have been reported to...