The importance of being dead: non-heart-beating organ donation.

• Author: Menikoff, Jerry

ABSTRACT: There is no definitive answer to the question of how long one must wait, after a person's heart stops beating, before concluding that the person meets the heart-lung criteria for death. This question has assumed new importance with attempts to remove transplantable organs from people declared dead using those criteria. An examination of the legal definition of death suggests that organs are indeed being procured from some of these people prior to their being legally dead. Moreover, the fact that the donors have consented to these procedures does not eliminate reason for Concern regarding this state of affairs, since patient autonomy must at times be overridden in pursuance of important social goals.

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Few can dispute that there is a shortage of transplantable organs. Thousands of people die each year, waiting for an organ that did not arrive in time. A variety of proposals are being pursued in an effort to remedy this unfortunate situation. One of the more controversial proposals involves the use of a new class of possible donors: people who die in the "usual" manner, when they stop breathing and their hearts stop beating. This article discusses several issues raised by the use of these so-called "non-heart-beating" organ donors. In particular, it will explore whether organs are being removed from such donors prior to the time when they are legally dead, and why we should be concerned about this.

The great majority of the transplantable organs that are removed from people after they have died are currently taken from people who have been declared "brain dead." (1) The concept of brain death initially received prominence in the late 1960's as the result of a report by a committee at the Harvard Medical School, (2) and in the ensuing years it has become part of the legal definition of death in virtually every state, either by the passage of a law, or through a court's adoption of such a rule. (3) A person who meets the criteria for brain death has suffered the irreversible cessation of function of all of the brain: both the "higher" brain, responsible for thinking and feeling, and the "lower" brain, responsible for many of the housekeeping chores that keep the rest of the body functioning (such as breathing and maintaining a constant temperature). (4) Such a person's heart is usually still beating, although the body needs to be hooked up to a ventilator, which effectively breathes for that person. Because oxygenated blood is still circulating through the person's body, the organs remain healthy for some period of time after the person is declared dead, and are thus useful for transplantation purposes. (5)

In general, relatively few people die in a manner that allows them to meet the brain death criteria. (6) There usually needs to be an interruption in the blood flow to the brain (for example, due to a hemorrhage in the brain that increases intra-cranial pressure) under circumstances where blood flow to the rest of the body continues (or, at least, is restarted before substantial damage occurs to the heart and other organs). Thus, the supply of organs for transplantation that come from brain dead donors is of necessity limited. (7)

Given the disparity between the large number of people who could benefit from an organ transplant, and the much smaller number of currently available transplantable organs, policy makers have been seeking ways to shrink this gap. (8) One obvious thought relates to possibly obtaining organs from those of us who will not die in a way that meets the brain death criteria, but rather in the "usual" way: our heart stops beating, or we stop breathing. In either of these two cases, as a result of the loss of oxygen (since no oxygenated blood is flowing through the body) all of the body's organs (including the heart, lungs and brain) will shortly thereafter be so damaged that they permanently stop functioning.

In formal terms, this set of events is referred to in the Uniform Determination of Death Act (UDDA), (9) the model statute whose language has been adopted by most states in their legal definitions of death, as "irreversible cessation of circulatory and respiratory functions." This is referred to as being declared dead under "heart-lung" or "cardio-pulmonary" criteria. Since this is the way most of us will indeed die (10)--for example, we will have a severe heart attack, our heart stops beating, blood flow stops, and the above-mentioned cascade of cell death proceeds throughout our body--a reader might think that it is very straightforward to determine death under this standard. Indeed, supporters of the use of non-heart-beating organ donation will at times claim that since this form of organ donation involves the traditional definition of death, it really should be viewed as less controversial than even removing organs from people who are declared dead under brain death criteria. (11)

That point of view ignores one crucial element of non-heart-beating organ donation: the timing issue. As noted above, when a person is declared dead under brain death criteria, oxygenated blood is still circulating through that person's body. Thus, there is no particular hurry in removing organs, since that blood flow will keep the organs healthy for at least days, if not longer. (12) In contrast, when a person is declared dead under the heart-lung criteria, there is no oxygenated blood circulating, and the organs we wish to use for transplantation purposes immediately begin to deteriorate. There is a great deal of dispute regarding how long an organ can go without oxygen and still be useful for transplantation purposes, and much research is being done on this question. (13) The answers vary from organ to organ. Nonetheless, in terms of current practices regarding which organs are viewed as acceptable, the effective answer to this question is in the range of minutes, as opposed to hours. (14) In other words, there is a need to declare a person dead relatively soon after the event that causes the flow of oxygenated blood to stop. (15)

Imagine that you are in the room with someone at the very moment when that person's heart stops beating. The person had previously indicated they did not want any measures taken to revive them, such as cardiopulmonary resuscitation. (16) When, we might ask, is this person dead? Is it the very moment the heart stops beating? Is it seconds or minutes later? At what point in time has the legal standard of "irreversible cessation of circulatory and respiratory functions" been met?

Somewhat surprisingly, this question has never been adequately answered! (17) The primary reason is that until recently--until, in particular, the attempts to remove organs from non-heart-beating donors--there never was any particular need to "rush" the process of declaring death. If the hypothetical person described above was found in a hospital room by a nurse, not breathing and pulseless, then the nurse would call a member of the medical staff to come and pronounce the person dead. This procedure did not require any particular haste, and it would be of no special importance if the person were pronounced dead five minutes, fifteen minutes, or even an hour or more after the heart had stopped beating.

Thus, even today, if you look in almost any major textbook on internal medicine, emergency medicine, or physical diagnosis, you may perhaps find a complicated and detailed protocol that discusses how to declare someone dead using "brain death" criteria; that protocol is likely to be based on the initial recommendations of the Harvard Committee discussed above. (18) But with regard to declaring someone dead under the "heart-lung" criteria--the standard by which the vast majority of us will be declared dead--the textbook is likely to say very little or even nothing. (19) In particular, it will likely not address the issue of how long one needs to wait after a person's heart has stopped.

The fact that the "heart-lung" criteria are the traditional way for determining death, used for hundreds of years, in no way helps resolve this issue. Certainly, there is no reason to think that someone from, say, the Middle Ages--even a medical expert from that time period--would be comfortable in declaring someone dead only a few minutes after the person's heart had stopped beating. Indeed, during much of the prior millennium, there was occasional concern about people being inadvertently buried alive, and devices were created to make sure that, even in the coffin, a resumption of breathing would be detected. (20) Thus, while the "heart-lung" basis for determining death does indeed have a long and illustrious history, that history by itself in no way resolves the timing issue presented by the use of non-heart-beating organ donors.

Why We Care About Determinations of Death

Before more directly delving into the timing issue, it is appropriate to first address the question of why we care about whether or not a person is dead. Only an answer to that initial question can help us then decide what is at stake in concluding that a person is dead a particular number of minutes after that person's heart has stopped beating.

The dividing line between life and death serves a number of legal purposes. Many of these are relatively mundane matters, primarily concerned with the affairs of the survivors of the recently deceased person: for example, health insurance and social security payments cease, life insurance payments become payable, and the assets of the deceased person pass to the heirs. (21) But these legal consequences, and a host of similar legal events, are representative of a broader, more significant change: the human being in question has gone from being a person in the eyes of the law, to now being a non-person. And the United States Constitution, many state constitutions, and thousands of laws enacted pursuant to these documents, grant a variety of rights to human beings who are accorded the...