As medical technologies advance, the legal community is forced to address difficult medical issues, balance competing ethical concerns, and find solutions to seemingly impossible questions. One such question is whether a patient "living" in a medically futile condition, who has sought the withdrawal of life support and donation of his or her organs can be declared legally dead--or, in this situation, can the law deem the administration of death hastening drugs acceptable--for the purpose of ensuring the viability of his or her procured organs for the future organ recipient? In the context of organ donation, such a question can have far reaching effects.
Consider the following situation. An adult woman, Anne, falls victim to a horrific bicycle accident, leaving her with only primitive brain stem functioning and completely dependent upon a ventilator. (1) Prior to the accident she signed an advance directive requesting that if she were ever in a state of permanent unconsciousness a do not resuscitate ("DNR") order be set in place and any ventilator removed. The directive assigns Anne's spouse to act as her surrogate and to implement her requests. On several prior occasions the couple had discussed their wishes and each had expressed the desire not to remain on life support. Furthermore, concerned about the increasing organ shortage, the couple registered as organ donors and expressed to each other their strong desire that their organs be donated.
Following the accident, it became clear that Anne's condition was not going to improve and that medical intervention would be futile. Pursuant to the directive and Anne's wishes, her husband requested that life support be withdrawn and that Anne's organs be donated. The hospital initiated its donation after cardiac death ("DCD") protocol. However, strictly complying with the DCD protocol, the hospital did not continue the process of procuring Anne's organs because she did not reach full cardiac arrest within a given time period; the organs could not be used because they are less likely to be successful in the recipient's body. As a valid DNR was in place, Anne was not revived. She and her organs died several minutes later.
This comment explores the legal landscape surrounding DCD and the possibility of allowing the utilitarian removal of organs from patients who may not be considered dead under current legal definitions. While this exploration focuses on New York State law, much of the discussion is applicable to jurisdictions throughout the United States. Part I of this comment sets forth the current DCD protocols and the problems these protocols can create or prevent. Part II discusses current legal and ethical considerations involved in DCD and their interplay with long-established ideas of patient autonomy, nonmaleficence, and beneficence. Part III discusses the ethical arguments that proponents of procuring organs prior to legal death have set forth and the benefits that can be gained from such conduct. Part IV notes the hesitance--prior to their widespread acceptance--of the medical, legal, and lay communities to accept DNR orders, the removal of life-prolonging technology, and to legally define death to include brain death. Finally, Part V discusses what needs to change in the legal and medical spheres to ensure that organs can be procured within one hour after withdrawing life-prolonging measures. Acquisition of organs within that period is necessary to ensure that the organs remain viable for transplantation into the recipient(s) and to meet the requirements under DCD protocols.
DCD PROTOCOLS IMPLICATE ETHICAL CONCERNS
The Uniform Determination of Death Act ("UDDA"), which has been adopted in some form by all fifty states, defines a person as dead when the "individual ... 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) Under this definition, organ donors can be considered legally dead under either subsection (1) or (2). The first category makes up those donations considered under the umbrella of DCD and can include either controlled or uncontrolled donors. (3) Uncontrolled donors are those who experience unforeseen cardiac arrest, either in or outside a hospital. (4) Controlled donors include those who have suffered severe brain or spinal trauma, those who are experiencing end-stage musculoskeletal disease, or those with pulmonary disease who do not meet the medical requirements of brain death and are surviving with the assistance of a ventilator. (5) The discussion in this comment is limited to controlled DCD donors. (6) Under the UDDA's second definition, donors have experienced brain death, but artificial means maintain the patients' heartbeat, pumping blood and oxygen to their organs, until they are removed and the organ donation process is commenced. (7)
To understand the DCD discussion fully, it is important to note that organs procured from brain-dead donors have a higher rate of transplantation success than those received from DCD donors. (8) This is because the warm ischemia time of DCD donation is longer than that of brain death donation and can increase the chance of organ damage, ultimately decreasing the success rates of transplantation. (9) Ischemia is defined as the "[l]ocal diminution in the blood supply, due to obstruction of inflow of arterial blood or to vasoconstriction" and in the context of organ donation, warm ischemia time refers to the length of time an organ is deprived of oxygen before procurement of the organ (i.e., when it is still within the donor's body). (10) If warm ischemia time is too long then the organ is not usable. (11) The number of donors that meet the brain death definition is not large enough to meet the increasing number of candidates awaiting transplants, which ultimately led to exploration into the use of DCD donors. (12)
Using DCD donors was met with both resistance and trepidation within the medical community and many of the same fears remain today. (13) In 1997 and 2000, the Institute of Medicine ("IOM") investigated the use of organs from DCD donors and in both reports supported expansion of the donor pool to include this group. (14) However, these IOM reports noted that ethical concerns across the medical community would provide a significant hurdle to implementing DCD protocols nationwide. (15) This was evidenced by a 2006 survey, which found that some in the medical community viewed DCD donation as being similar to euthanasia. (16) As discussed below, a significant criticism of DCD is that the interval between cardiac arrest and procurement--usually two to five minutes--is not long enough to exclude the possibility of autoresuscitation and, thus, is not "irreversible," a condition necessary to meet the legal definition of death under the UDDA. (17)
Despite unease among some in the medical community, the Joint Commission on Accreditation of Healthcare Organizations mandated that all hospitals develop DCD protocols by January 1, 2007. (18) The mandate did not require that the hospital implement its DCD protocol, only that a protocol be developed. (19) By that same date, the United Network for Organ Sharing ("UNOS") also mandated that the Organ Procurement Organizations COPOs") operating under the authority of the Organ Procurement Transplantation Network ("OTPN") create DCD protocols, and later that year set out model DCD protocols itself. (20) Within nine months approximately 670 DCD transplants were performed nationwide, compared with 12,553 brain-dead donor transplants. (21) While these protocols vary from hospital to hospital, state to state, and across OPOs, the basic process is as follows: (1) life sustaining equipment is withdrawn in a hospital operating room; (2) a physician waits a designated interval--typically one hour--for the patient to sustain cardiac arrest; (3) once cardiac arrest occurs the physician waits between two and five minutes to preclude any chance of autoresuscitation and to ensure "irreversibility;" (4) the physician declares the donor dead; and (5) the organs are procured and cold preservation of the organs is begun and continues until transplantation commences. (22)
As noted above, much of the debate surrounding DCD focuses on the two to five minute time period following cardiac arrest. This debate is premised on whether this short period of time is long enough to ensure that the patient has experienced "irreversible cessation" of circulation and respiration, so as to meet the first criteria of the UDDA definition of death. (23) If irreversibility cannot be determined then organs are being procured from patients who may not yet be legally dead. (24) The disagreement stems from an ethical and medical conflict over the meaning of "irreversible," which is not clarified within the UDDA definition. (25) Medically, in addition to guarding against autoresuscitation, (26) "irreversible" can be interpreted to mean that it is currently impossible, given medical technology, to reverse the "cessation of circulatory and respiratory functioning." (27) Ethically, "irreversible" can mean that the cessation will not be reversed because doing so, even though possible, would be against the wishes of the patient given the existence of a DNR order. (28)
In calculating the time needed to ensure irreversibility of the donor-patient's death, it is necessary to balance the organ recipient's interest in receiving a quality organ against the time waited to ensure that autoresuscitation will not ensue. A longer interval between removal of life support and removal of organs increases the risk of organ damage due to an increased warm ischemia time. (29) To limit warm ischemia time, the IOM has endorsed the use of a two-minute interval, while the 2005 Consensus Convention recommended a minimum of two minutes to protect the donor and a maximum of five...