The thin flat line: redefining who is legally dead in organ donation after cardiac death.

• Author: Harrington, Maxine M.
• Position: Reprint

ABSTRACT: The debate over whether donation after cardiac death (DCD) donors are truly dead is not new but has surfaced mostly in the academic community. In 2008, widespread publicity was given to the indictment of a transplant surgeon in California in connection with the alleged administration of excessive and inappropriate medications to a potential donor awaiting cardiac death after removal from a ventilator. This and other reports in the lay press mirror the expanding use of DCD to boost the supply of organs.

This article explains the practice of donation after cardiac death, examines whether DCD donors are legally dead under the UDDA, explores whether it is appropriate to apply DCD as it is currently practiced, addresses the concern that DCD is causing the death of donors, and suggests several approaches to resolve the controversy over the determination of death in DCD donors. The author concludes with a call for this debate to move beyond scholarly journals into the public arena.

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Well, it just so happens that your friend here is only mostly dead. There's a big difference between mostly dead and all dead. Now, mostly dead is slightly alive. (1) By the end of 2008, a pilot program to recover organs from those dying on the streets of New York City could be in effect. (2) Under a federally-funded grant, the city is proposing to expand the donor pool by deploying a "rapid organ-recovery ambulance" to procure the organs of people who die of cardiac arrest outside hospitals. (3) According to newspaper reports, a special transplant ambulance would trail an emergency ambulance responding to notification of a victim with cardiac arrest. (4) After regular paramedics cease resuscitation efforts, the transplant ambulance team would wait five minutes and then attempt to maintain the viability of organs by administering drugs and by performing chest compressions to the victim until more extensive preservation efforts could be performed at the hospital and consent for donation from the next of kin could be obtained." (5)

Announcement of the program generated considerable controversy. One commentator referred to the organ-recovery ambulance as a "meat wagon." (6) An academic bioethicist pronounced the initiative "disgusting." (7) Another bioethicist voiced her concern that the victims of cardiac arrest might not be "irreversibly" dead when the organ transplant team took over minutes after resuscitation efforts ceased. (8)

Within a few months after the New York City initiative was announced, the New England Journal of Medicine reported that a team of physicians at Denver Children's Hospital had been able to transplant hearts from three infant donors who were not brain-dead, but who had been removed from mechanical life support. (9) Death was declared in one infant three minutes after cardiac and respiratory efforts ceased; in the other two infants, death was pronounced after seventy-five seconds of absent heart and lung functions. (10) Once death was declared, organ recovery began. (11) Again, some medical bioethicists were alarmed. George Annas, who has been called the "father of patient rights," (12) warned: "The donors are not dead. I understand they would like us to change the definition of death, but they can't do that by themselves." (13) Robert M. Veatch, professor of medical ethics at Georgetown University, added:

The whole issue is whether the infants from whom the hearts were taken were dead. It seems very clear to me that they were not. I think it's illegal, and if it's illegal, what we're talking about is the physicians causing the death of the three patients, and that would be homicide. It's immoral. I think it should be stopped. (14) Should we worry that organs are being removed from people who are just "mostly" dead? Law and medicine are grappling with a fundamental tension between, on the one hand, delaying the pronouncement of death until there is no chance of recovery and, on the other hand, increasing the quantity and quality of organs for transplant by pronouncing death as soon as possible. This article examines whether, in the relentless pursuit of organs, medicine has gone too far in tinkering with the definition of death.

Most cadaveric organs are recovered from donors who meet brain death criteria. (15) There is, however, a growing imbalance between the number of brain-dead donors and the demand for organs. The New York City study and the Denver Children's Hospital protocol are recent examples of a movement in the transplant community to increase the supply of organs by using donors whose heart and lung functions have ceased, but who are not yet brain dead. This practice, known as donation after cardiac death (DCD), has proved controversial for a number of reasons. (16) This article addresses the threshold controversy: whether DCD donors are legally dead at the time organ procurement begins.

The Uniform Determination of Death Act (UDDA) and its state counterparts require the "irreversible" cessation of the functions of either (1) the entire brain or (2) the heart and lungs before a person can be considered dead. (17) There is a significant debate among scholars over whether the UDDA recognizes two kinds of death or only two different criteria, cardiac and neurological, under a unitary concept of death. (18) The proponents of DCD have resolved this controversy by recognizing donation after "cardiac death," where organs can be removed minutes after the heart stops, before brain death occurs. (19) Locating a precise moment of death is not an issue in most victims of cardiac arrest. It is a primary issue in DCD, however, because once the heart stops, there is a need to protect transplantable organs from deteriorating due to a lack of blood flow. (20) The quality of organs is less of a concern with patients who are declared dead under brain death criteria because the donor is maintained on artificial support after death to keep the heart and lungs functioning throughout organ procurement. (21) The DCD donor is not declared dead until life support is withdrawn or unsuccessful resuscitation is terminated. (22) The need for viable organs creates a conflict between ensuring that the donor patient is dead and removing organs as soon as possible. (23)

As DCD is generally practiced in the United States, death is declared two to five minutes after the cessation of cardiac and respiratory functions. (24) Once a diagnosis of cardiac death is made, transplant surgeons begin the process of organ retrieval. It is unlikely that the DCD donor satisfies the criteria for brain death at the time of organ procurement as it takes longer than five minutes for the entire brain to be irreversibly damaged from lack of oxygen. (25) The speed with which a diagnosis of death is made in the DCD context is done solely to facilitate organ procurement. (26) The closer the donor is to life, the more useful the organs will be to the recipient.

The debate over whether DCD donors are truly dead is not new but has surfaced mostly in the academic community. Recently, however, DCD has become a focus of media and public attention, as demonstrated by the debate over the New York City and Denver Children's Hospital initiatives. In addition, the Washington Post featured an article in March 2007 about a "new trend in organ donation," airing the concerns of some physicians and bioethicists about the controversial practice of donation after cardiac death. (27) In 2008, widespread publicity was given to the indictment of a transplant surgeon in California in connection with the alleged administration of excessive and inappropriate medications to a potential donor awaiting cardiac death after removal from a ventilator. (28)

These reports in the lay press mirror the expanding use of DCD to boost the supply of organs. Although the number of organs transplanted from cardiac death donors is still relatively small, (29) an increase is expected as hospitals and organ procurement organizations begin to develop DCD policies under mandate from oversight bodies. (30) Currently, most DCD donors are severely ill, hospitalized patients who do not meet the criteria for brain death but who have decided, either personally or through a surrogate, to refuse resuscitation and to withdraw life-sustaining medical care. (31) The controversy over whether patients are "dead enough" for organ procurement has focused almost exclusively on this subset of potential donors, and little attention has been given to the distinct medical and legal concerns presented by the expansion of DCD to victims of sudden cardiac arrest outside the hospital. There is an obvious conflict between the right of these individuals to adequate emergency resuscitative efforts and the need to procure organs only minutes after cessation of the heartbeat. Removing organs a mere seventy-five seconds after the heart stops and transplanting hearts from donors who are not brain dead are two other recent developments in DCD that test the legal and ethical boundaries of organ transplantation. These controversial practices raise fundamental questions about the extent to which society is willing to tolerate the removal of vital organs from people we cannot be certain are dead in order to satisfy the escalating demand for organs. This article suggests that there is a need for a wider public debate on the permissible limits of DCD, but that a reasonable accommodation can be reached without compromising legal standards for determining death. There are ethically defensible reasons to allow this form of organ procurement in hospitalized patients voluntarily removed from life support, but absent broad social and political consensus, DCD, as currently practiced, should not be expanded to other potential donors.

Part I of this article begins with a brief background of solid organ transplantation and the statutory framework in which it operates. Part II explains the practice of donation after...