Is organ procurement causing the death of patients?

• Author: DuBois, James M.

ABSTRACT: This article offers a philosophical foundation for the Uniform Determination of Death Act as it first examines death per se, and then examines brain death and the non-heart beating donor criteria for determining death. The author suggests that many of the debates over death can be bypassed by changing the terms of the debate: what matters is not whether death is a process or an event, but death as a state. Understanding death as a state allows us to determine death in a functional manner that is compatible with the needs of law and medicine. The second part examines objections that arise from ignoring or rejecting the distinction between killing and letting die and the principle of double effect. By clarifying the lines between life and death, on the one hand, and between intentionally killing and unintentionally hastening death, on the other, the author hopes to restore a sense that the proposals to drop the dead donor rule are radical recommendations to cross lines we have never crossed before.

Some who oppose the so-called dead donor rule (1) argue that we might as well drop the rule, for we are already causing the death of organ donors. (2) Different authors offer different reasons for maintaining that organ procurement kills patients, but there are at least five ways in which this allegedly happens (3):

* Insofar as we procure organs from the brain dead, who are not really dead because they may show significant signs of life such as maintaining a heart beat and fighting infections. (4)

* Insofar as some patients who are declared dead using so-called non-heart-beating donation (NHBD) protocols have not irreversibly lost all circulatory-respiratory functions prior to organ procurement. (5)

* Insofar as the same donors may not have irreversibly lost all brain functions prior to organ procurement. (6)

* Insofar as NHBD involves the withdrawal of life support from patients. (7)

* Insofar as NHBD sometimes involves the administration of anti-coagulants such as Heparin prior to death, which could cause brain hemorrhaging and death in some patients. (8)

The first three allegations arise from doubts about the content or current implementation of the Uniform Determination of Death Act (UDDA); the last two allegations arise from ignoring or rejecting the principle of double effect or its application.

Proposed responses to these allegations typically take one or more of three forms:

* Accept some or all of the allegations, accept the idea of causing the death of organ donors under certain circumstances, and support dropping the dead donor rule. (9)

* Accept some or all of the allegations, refuse to cause the death of donors, and accordingly support changes to our practices. (10)

* Attempt a refutation of all or some of these allegations.

This article takes the third course. In the first part, it offers a philosophical foundation for the UDDA as it first examines death per se, and then examines brain death and NHBD criteria for determining death. There it is argued that many of the seemingly endless and irresolvable debates over death can be bypassed by changing the terms of the debate: what matters is not death as a process or as an event, but death as a state. Understanding death as a state allows us to determine death in a functional manner that is compatible with the needs of law and medicine, and, in principle, is consistent with many commonsense and religious views of death. It also allows us to understand why those patients allegedly killed under the first three scenarios listed above are already dead when procurement begins.

In the second part, objections that arise from ignoring or rejecting the distinction between killing and letting die and the principle of double effect or its application are examined.

If successful, this article will do more than show that our current transplant practices do not cause the death of donors. By clarifying the lines between life and death, on the one hand, and between intentionally killing and unintentionally hastening death, on the other, we might restore a sense that proposals to drop the dead donor rule are radical recommendations to cross lines we have never crossed before.

The UDDA Under Scrutiny

The determination of death has many of the same ingredients that make abortion so controversial in the United States. Determining death can be viewed as a medical, a legal, or an ethical act. The meaning of the act can additionally be understood in competing philosophical or religious terms (e.g., as a determination of the permanent loss of epiphenomenal brain processes or as a determination of the separation of the soul from the body). Finally, people often have deep-seated desires about how their bodies should be handled both immediately prior to and following death; and some of these desires conflict with protections of life that others want to maintain. This helps to explain why death has recently been characterized as "both a biologically based and socially constructed notion about which there is little prospect for social consensus." (11)

In what follows, I will attempt several things: to describe what death is in general terms; to analyze briefly the Uniform Determination of Death Act (UDDA) and the rationale behind its bifurcated criteria for determining death; and to present medical and philosophical considerations to illustrate how non-heart-beating donors may be understood to be dead at the time procurement begins. Any attempt to engage philosophical issues is bound to be controversial within the sphere of public policy debates. Yet, my engagement might be defended as a legitimate public exercise on the following grounds: that it does not invoke concepts that are dependent on any particular religious framework; that it is consistent with and builds upon the scientific evidence we have; and that we simply must engage such issues if our laws are to have any moral force and to inspire trust.

What Is Death?

The text of the UDDA emerged as the main conclusion in the report on the medical, legal and ethical issues in the determination of death issued by the President's Commission in 1981. It states that:

An individual who 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, is dead. A determination of death must be made in accordance with accepted medical standards. (12) Although the UDDA identifies two very different criteria for determining death, the President's Commission report insisted that death is a unitary phenomenon. But before examining the underlying concept of death offered by the President's Commission, we will do well to consider some clear and common examples of a person dying in order to provide ourselves with a description of death. This description will then help us to gauge the adequacy of any definition or concept of death (rather than reversing the situation and evaluating any description of death according to an apriori definition). (13)

Let us consider a case in which a person's heart arrests for whatever reason. The first consequence is that blood ceases to be circulated throughout the body. Within about 15 seconds the brain begins to shut down and consciousness is lost. Breathing discontinues almost immediately due to the loss of brain stem function. Due to a lack of oxygenation (warm ischemia), cells in the brain, heart, and lungs begin to die, eventually making resuscitation impossible or pointless. The multifarious ways of dying share similar features, though the order in which critical functional losses appear varies. The loss of critical functions may start with the loss of circulation (as described above), or with the loss of respiration (as with a choking victim), or with the loss of brain function (as with a stroke victim), or all three functions may be lost instantaneously (as with a person who steps on a landmine and is obliterated). (14)

In all these cases, three descriptions are valid (thus providing us with three general criteria for determining death). Dying leaves the human being:

* In a state of unconsciousness: the body and the mind no longer form an active, functional unity. (15) This will be called the psychological criterion.

* In a state of widespread, non-function across organ systems: All major organ systems (respiratory, circulatory, and nervous) shut down. (This may appear more as an event or as a process depending on circumstances.) This will be called the biological criterion.

* These states ordinarily become irreversible within minutes (due to necrosis of key organ systems) or immediately (in the case of obliteration). This will be called the irreversibility criterion.

When all three features are present, we have an irreversible state of death without qualification and are ready to make a legal pronouncement of death. When first and second apply, but not the third, we speak of clinical death. (We have an apneic, unconscious patient, in cardiac arrest; the patient might be resuscitated, but is functionally dead.) When the first two features of death appear and then are successfully reversed, thereby restoring the function of the organism as a whole, we may speak of reanimation. This word is both common and rich. "Anima" is the Latin word for soul. More so than the word resuscitate, the word reanimate invokes the image of restoring not only organic functions, but also the mind-body relationship.

A few features of this description of death will be important as we turn to consider neurological and circulatory-respiratory criteria for determining death: loss of function is emphasized (as opposed to focusing on organic damage); the key functions lost are biological (nervous, respiratory, and circulatory) and psychological (consciousness); and death is considered primarily as a state (as opposed to focusing on whether death, or more properly dying, is an event or a...