Special Issues Concerning The Determination Of Death

Our attitudes about the human cadaver influence profoundly our feelings about organ procurement and transplantation. Hovde has summed up those attitudes in the following way:

It is not that the human cadaver is something of inherent value, for it will soon decay unless measures are taken to prevent this. Rather it is that the human cadaver is a symbol of the human person, a reminder to us of our life together as a community of persons. As a symbol, the human cadaver demands respect from the living.36 Bolstered by secular laws and religious beliefs, these attitudes have led to a belief that cadaver organs and tissues should not be removed without appropriate permission and certainly not before the person who occupied that body is "dead"37 Scholars have suggested that this so-called "dead donor rule" grew out of a desire not only to honor the ethical principle of nonmaleficence (of not doing harm to others), but also as a way of reassuring society that only "severely brain-damaged patients, those with all loss of brain function" would be used as organ sources and that "other severely compromised patients would be protected from [being] killed or used as organ sources prior to their death."38

The immediate problem, of course, becomes one of definition in deciding what we mean by the phrase, "dead" or "brain-dead," as can be seen in confusing newspaper headlines such as "Brain-Dead Man Allowed to Die." This has led not only to public mystification and incredulity at the notion that a breathing person whose heart is beating can be said to be "dead," but to arcane debates among those who favor the existing "whole-brain-death" formulation, those favoring a less-demand

ing "higher-brain-death" criterion, and those who would take organs from people who meet neither of these criteria, all the while failing to morally justify any of these standards by explaining "the concepts of self and human death it presupposed."39

Aside from pragmatic issues of public acceptance and support of organ procurement and transplantation (or perhaps underlying them), these definitions of death (or suggestions that we take organs and tissues from people not "dead" by conventional standards are arguably related to a sense of personal identity "because brain function is essential to the rational and volitional activities that appear unique to human beings as persons."40 Thus, serious attention must be given to the social and ethical implications of the criteria used to justify organ and tissue removal from human bodies, both living and dead.

Infants with Anencephaly and Persons in Vegetative States

The desire to increase the pool of organs available for transplantation has led to suggestions that infants born with anencephaly (i.e., with functioning brain stems but no cerebral hemispheres) and those diagnosed with severe and presumably irreversible brain damage ("vegetative state")-neither category capable of meeting current "whole-brain-death" legal standards-be added to the list from whom organs could be taken prior to "death" as we currently define it. Numerous ethical, medical and social concerns have been raised regarding such proposals, particularly with regard to infants with anencephaly.41

Nevertheless, the American Medical Association's Council on Ethical and Judicial Affairs in 1994 endorsed the use of such infants as "live donors" who were not "legally dead" but who could be made an exception to the standard rule "because of the fact that the infant has never experienced, and will never experience, consciousness."42 Youngner, in critiquing this policy statement as "conceptual gerrymandering," has noted: "The AMA did not suggest that anencephalic infants were dead, but rather that they were beyond harm and, therefore, could be killed for their organs. Of course, the AMA did not use the word, killed'.'43

Two more recent proposals by Emanuel44 and Truog45 would seek to overcome some of the criticism leveled at earlier suggestions by permitting patients and their surrogates to opt for organ donation if they met either the "whole-brain-death" standard or had a diagnosis of anencephaly or persistent vegetative state. Both proposals would return to the traditional "cardiorespiratory" standard of death now used for patients not supported by ventilators, but allow would-be donors an option to choose a "whole-brain-death" or a "higher-brain-death" standard. One of these authors has informally commented that this "would require us to admit that we are killing patients for their organs," but presumably this would be accompanied by the explanation that the choice was that of the person whose body parts were taken or their surrogates. Such a change would challenge not only the patience and generosity of the public, but of the involved medical and nursing professionals as well.

Non-Heart-Beating Cadaver Organ Recovery

Another suggestion to overcome the scarcity of organs was initially made by Shumway in 1971 when he wrote that "[p]rior to the advent of human cardiac transplantation, it was anticipated that the development of techniques for organ resuscitation and preservation would allow the removal of a donor heart after asystole [cardiac arrest] had occurred."46 Prior to the existence of "brain death" laws, persons whose hearts were no longer beating at the time of organ procurement were the main source of organs for transplantation.47

Following the development of a modern protocol to use such donors at the University of Pittsburgh in 1993, a national ethical debate ensued (over what is still a relatively rare procedure) that was summarized in book form.48 One well-known ethicist expressed concern that such a policy involved "policy creep" about the definition of an organ donor and was problematic because of such factors as "loss of trust in the transplant community because of confusion over the protocols to be used, blurring the line between life and death, stress on family members, and burdens imposed on health care providers when a long-standing policy regarding who can serve as a cadaver organ donor is unilaterally changed."49 Others were more supportive of the approach.50 Additional public attention was drawn to the policy standard in 1997 when a similar protocol was proposed at the Cleveland Clinic and criticized by a local ethicist as possibly crossing "the line between permitting and inducing death" which prompted the announced interest of a Cleveland prosecutor.51

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