Another attack on the dead donor rule comes in this month’s Journal of Medical Ethics. Anthony P. Smith, a philosopher at the University of Utah, argues that we should abandon the traditional view underlying the practice of organ donation – that patients must be dead before their organs are removed.
Let’s assume that a patient is in a vegetative state and has agreed to donate his organs in an advance directive. What would be wrong with removing his heart and lungs? The traditional answer is that the patient is not dead yet – removing those vital organs would kill him.
True, argues Dr Smith, but “death does not harm permanently unconscious patients” (PUC).
“In these cases, then, causing the death of PUC patients is not morally wrong. This undermines the strongest argument for the Dead Donor Rule—that doctors ought not kill their patients. Thus, there is nothing wrong with abandoning the Dead Donor Rule with regard to PUC patients. Importantly, the harm-based argument defended here allows us to sidestep the thorny debate surrounding definitions of death. What matters is not when a patient dies but whether their death constitutes some further harm.”
This is not a new argument. Ten years ago, in the same journal, Walter Sinnott-Armstrong and Franklin G Miller declared that the key moral issue was not whether doctors deprived a person of life, but whether they deprived him of “human abilities that make a life worth living”. What about a slippery slope? Not a problem, they declared in “What Makes Killing Wrong?”:
“Critics might object that abandoning the dead donor rule will take us down the slippery slope to procuring vital organs from the mentally retarded or other groups of vulnerable individuals with disabilities. Absolutely not. We can hold the line for vital organ donation by continuing to restrict it to those in a state of total (universal and irreversible) disability. It is only these donors who would not be harmed or wronged by vital organ donation, since all other donors have abilities to lose.”
What about consent? In his article Dr Smith says that consent is important “because it helps us to be sure that a PUC patient will not be harmed by being an organ donor”. If a person had given instructions that he did not want to be an organ donor, his interests would be harmed if his wishes were not respected. However, there does seem to be grey area in his argument. Most people who suddenly become permanently unconscious have not expressed a wish one way or the other. What if their family or guardian consents on their behalf?
Traditionally – as far back as the Greeks and Romans, life itself was the ultimate value. Dum spiro, spero, while I breathe, there’s hope, is the Latin adage. But with human being increasingly being defined as a collection of physical capacities rather than as embodied persons, whether or not one is alive may be less important than whether or not one’s body is useful.
Other articles I have written over the years on the Dead Donor Rule.
***If you don’t have a life directive then at the VERY least discuss with your family how you want your life to be handled in the event of an unforeseen circumstance.***
The Dead Donor Rule Declare Death before Organ Harvesting
Before an organ can be harvest the patient must be declared dead.
The “dead-donor rule” refers to two accepted ‘ethical norms’ that govern the practice of organ harvesting before transplantation:
1) vital organs should be taken only from dead patients,
2) living patients should not be killed for or by organ procurement.
Prior to the publishing of the paper,”A Definition of Irreversible of Coma” from the Ad Hoc Committee at Harvard University in 1968 a person was truly dead “only” when their heart stopped beating and they stopped breathing.
After the publishing of the Harvard paper (which is the most cited paper on Brain Death), surgeons had an open door to transplant vital organs. However, the medical community had a legal and ethical dilemma: vital organs must be taken from a living body, but removing vital organs will cause death in the patient.
Hummmm what to do, what to do?
What are vital organs?
You must remember that for the majority of your organs to be transplanted they must be vital. The word vital comes from Middle English, from Old French, from Latin vītālis (“of life, life-giving”), from vīta (“life”), from vīvō (“live”).
Vital means alive, dead organs can not be transplanted.
The vital organs are heart, liver, pancreas, lungs, and kidneys. Patients must be declared brain dead before the removal of any of these vital organs.
The “dead donor rule” was enacted because it was believed (rightly so) that people would never morally accept a persons organs being harvested if a person was “almost dead.”
The dead-donor rule was instituted and accepted so that death could be pronounced and the organs harvested.
The “brain death theory” is essential to current practice of organ retrieval because it legitimizes organ removal from bodies that continue to have circulation and respiration, thereby avoiding ischemic injury to the organs. Ischemic injury occurs when the blood supply to an organ is either partially or totally cut off.
If you injured in an accident and die before you can be resuscitated then your organs CAN NOT be transplanted. They are dead, useless. However, if you are declared “brain dead”, and are in the hospital and on a ventilator you are not truly dead, and your organs can be harvested.
The Controversy
In a shocking statement, Dr. Neil Lazar, Director of the Medical-Surgical Intensive Care unit at Toronto General Hospital, says the focus should be on the well-being of donors rather than whether they are legally dead. That could mean giving anesthetics during organ harvesting.
He and his co-authors, Dr. Maxwell J. Smith of the University of Toronto, and David Rodriguez-Arias of Universidad del Pais Vasco in Spain, advocate replacing the current “dead-donor rule” with a policy that educates the public about the true nature of patients used in transplants, obtain informed consent from everyone — and ensure the donor does not suffer during the organ harvesting. The study was published in the American Journal of Bioethics.
The authors state frankly that under current practices donors may be technically still alive when organs are harvested – a necessary condition to produce healthy, living organs. Because of this, they say that protocol requiring a donor’s death is “dangerously misleading,” and could overlook the well-being of the donor who may still be able to suffer during the harvesting procedure.
“Because there is a general assumption that dead individuals cannot be harmed, veneration of the dead-donor rule is dangerously misleading,” they write. “Ultimately, what is important for the protection and respect of potential donors is not to have a death certificate signed, but rather to be certain they are beyond suffering and to guarantee that their autonomy is respected.”
The transplant community was NOT in favor of removing “the dead-donor rule” believing it would decrease organ transplants, upset families and stress health care workers.
Ya think?
How would you feel if the truth were told?
Doctors: “We are ready to take your loved one down now and harvest their organs.”
Family Member Crying: “So they really are dead?”
Doctor: “No, not really, but… we’ll give them anesthesia so they won’t feel a thing?”
At least Lazar, Smith and Rodriguez-Arias are telling the truth that you are not dead like most people have been deceived into believing.
The transplant agencies want to keep the “dead donor rule” standard,the lie alive, and continue to allow you to believe you are dead to harvest your organs.
The “dead donor rule” – a person must be dead before their vital organs are extracted for transplantation – is the basic principle guiding organ donation. A dead body is a corpse. Excising vital organs from a corpse does no harm. But, if we are not certain the individual is dead, removing vital organs is a grave matter.
The Catechism of the Catholic Church (2296) states: “… it is not morally admissible directly to bring about the disabling mutilation or death of a human being, even in order to delay the death of other persons.” Furthermore, even though Pope John Paul II stated that organ donation is an act of charity, in Evangelium Vitae (n. 15) he cautioned: “Nor can we remain silent in the face of other more furtive, but no less serious and real forms of euthanasia. These could occur for example when, in order to increase the availability of organs for transplants, organs are removed without respecting objective and adequate criteria which verify the death of the donor.”
We have been asked, “How and why does HALO differ from the National Catholic Bioethics Center’s position on ‘brain death’ and the use of ‘brain dead’ individuals as organ donors?” This paper is HALO’s answer.
HALO’s position is that a diagnosis of brain death does not mean that it is morally (or scientifically) certain the person is dead. Therefore, the practice of removing vital organs from “brain dead” individuals should be suspended and alternative means for extending the lives of individuals with failing organs should be pursued.
The National Catholic Bioethics Center’s Position
The NCBC’s most well-known authority on brain death, Father Tad Pacholczyk, makes four assertions:
1. “The [brain dead] individual has undergone a traumatic event resulting in the complete and irreversible cessation of all brain functions.”
2. “Brain dead individuals cannot be kept going on machines forever. In fact, there is usually a period of only a few days that it may be possible to extend the functioning of their organs by keeping them on a ventilator.” He suggests that “somebody is likely to have cut some corners in carrying out the testing and diagnosis” in cases where individuals have survived for months or years after a brain death diagnosis.
3. “Genuinely brain-dead individuals never ‘wake up.”
4. “Defining brain death as the irreversible cessation of all functions of the entire brain, including the brainstem, is compatible with a Christian understanding of the true nature of man.” [1]
We do not disagree with Father Pacholczyk’s fourth assertion. However, after diligently searching for the answer to our question (this paper’s title), we have reached an uncomfortable conclusion: If physicians wait long enough to be certain that all functions of the entire brain have irreversibly ceased – that is, that the person is truly dead – the deceased person’s organs will have begun to deteriorate and therefore will not be transplantable. If the goal is to salvage healthy organs, haste is of the essence in determining brain death. Haste can lead to cutting corners and to errors. Also, as Pope John Paul II suggested, furtive euthanasia may occur as a means of increasing the supply of transplantable organs. (This is a reasonable concern since organ transplantation is a very lucrative business and “the love of money is the root of all kinds of evil…” – 1 Timothy 6:10).
To address Father’s first assertion, it is necessary to ask a question. How is it possible to establish “the complete and irreversible cessation of all brain functions” when the person is exhibiting signs that some parts of the brain are functioning – signs which we can see with our own eyes?
Should We Believe Our Senses?
When our senses tell us someone is alive, but doctors tell us he is dead, what are we to believe? Two things which contradict each other cannot both be true. A human being is either alive or dead.
Before organ transplantation was possible, physicians made every effort to judge the moment of death in the direction of protecting life from a death-dealing mistake. Circulation and respiration had irreversibly ceased – the body was cold, blue and stiff. Our senses told us that the person was dead.
Brain death is declared while the patient has a beating heart because removal of vital organs must be done before they begin to deteriorate due to loss of circulation. We bury dead people, but we would never bury a person with a beating heart because we know that a beating heart is a sign of life. Also, consider these facts:
A person can be pronounced “brain dead” while he or she has a normal pulse, blood pressure, color and temperature. All signs of life.
“Brain dead” people digest food.
“Brain dead” children grow.
“Brain dead” pregnant women have gestated and delivered healthy babies and produced milk.
“Brain dead” patients’ wounds heal.
During the excision of organs, the donor is sometimes given paralyzing drugs to control muscle spasms; the heart rate increases, and blood pressure shoots up. Dead people don’t move or react to pain in these ways.
The legal definition of brain death is “the irreversible cessation of all functions of the entire brain, including the brain stem.” Yet “brain dead” patients display signs that their brains retain many essential functions. [2]
Pursuing the Truth Wherever It Leads
If a person who has been determined to be brain dead is truly dead, then our senses are deceiving us.
There are good people who support vital organ donation after a determination of brain death and good people who oppose it. It is not HALO’s purpose to judge anyone who has decided to donate organs or to undergo transplant surgery. We do, however, strongly suggest that people consider all the evidence before making these decisions and prior to taking a position on this crucial moral issue.
Renowned theologian Christian Brugger believes there is reasonable doubt that “brain dead” bodies are dead and concludes, “Since we should not treat as corpses what for all we know might be living human beings, it follows that we have an obligation to treat BD individuals as if they were living human beings.”[3] Dr. Paul Byrne and other experts in the fields of medicine, philosophy, and theology explain why they maintain that “‘Brain Death’ is Not Death” in an illuminating essay by that name. [4] HALO highly recommends reading this brief, yet thorough set of arguments against using neurological criteria alone to determine death.
John Haas, President of the NCBC, says that those who express doubt or deny that brain death is true death “create confusion in the minds of a number of the faithful” and “run the risk of unsettling the consciences of the faithful on a life-and-death ethical matter for which the authentic magisterium of the Church has provided clear guidance.”[5] However, we find Church guidance on this matter to be anything but clear and interpretations of Church guidance vary widely. Brugger, Byrne, Pacholczyk, and Haas are just a few of the many Catholic experts who express differing positions on “brain death.” (Perhaps this is a topic for another paper.)
The evidence HALO has thus far examined leads us to agree with the experts who say we cannot be morally certain that a person who has been declared “brain dead” is truly dead before their organs are removed. But we will never cease our search for the truth. At the very least, those who believe brain death is death should concede that this is one diagnosis where doctors need to be correct 100% of the time – and, for the sake of all who trust them, admit that there is a growing body of evidence that this diagnosis is not accurate in at least some cases, and perhaps in many cases.
Father Pacholczyk asserts, “Genuinely brain-dead individuals never ‘wake up.'” Every time a recovery occurs after a determination of brain death we are told the diagnosis was wrong; that perhaps corners were cut in testing, or mistakes were made, or the person doing the testing was not qualified, etc. Thus, how can anyone know for certain that a person is “genuinely brain-dead?” The only way is to wait and see.
People who have been determined to be “brain dead” using the most rigorous neurological criteria have awakened and recovered. It is safe to say that they would not have recovered had they been stripped of their vital organs before their injured brains could begin to heal. Here are two cases in point.
Trenton McKinley, a 13-year old Alabama boy, was declared brain dead after suffering skull fractures and a traumatic brain injury in March 2018. He reportedly passed all the tests for determining brain death. His mother signed papers to donate his organs. Fortunately, he regained consciousness before his vital organs were removed. Trenton was taken off the ventilator and eventually went home. He is now conscious, walking and talking. [6]
In 2007, Zach Dunlap, a 21-year old Oklahoman, flipped over on his 4-wheeler and suffered catastrophic brain injuries. Thirty-six hours after his accident, doctors at United Regional Healthcare System in Wichita Falls, Texas determined he was “brain dead.” They had subjected Zach to a battery of tests including a scan that showed a complete absence of blood flow to the brain. Preparations to harvest his organs were underway when a relative scraped the bottom of his foot with a pocket knife and he jerked his foot away. Just months later, Zack was walking and talking. He recalled hearing a doctor say he was dead and being “mad inside” but unable to move. [7]
On December 9, 2013, 13-year old Jahi McMath underwent surgery to remove her tonsils and adenoids at a children’s hospital in Oakland, California. Shortly thereafter, she started to bleed and suffered cardiac arrest. She was declared “brain dead” three days later. Her family disagreed with the diagnosis and fought for Jahi’s life when the hospital sought to remove her life-support. Keeping her alive required moving her to New Jersey.
Bobby Schindler, President of the Terri Schiavo Life & Hope Network (https://www.lifeandhope.com/), explains: “After Jahi was ruled to be brain dead, she and her family found themselves in an incredible situation wherein Jahi was considered legally dead in California, but legally alive in New Jersey due to that state’s religious accommodations.” Jahi’s mother took excellent care of her at home. Jahi breathed with the aid of a ventilator. She responded appropriately to commands and underwent pubertal development. Her true death occurred on June 22, 2018. Her death certificate, completed by the NJ physician treating Jahi, listed her cause of death as bleeding as a result of liver failure.
Various news outlets subsequently reported that Jahi McMath had died, underscoring the fact that Jahi was a living human being for four and a half years after being issued a death certificate in California. [8] To learn more about Jahi’s condition read “The Case of Jahi McMath: A Neurologists’ View” by D. Alan Shewmon, The Hastings Center Report, December 25, 2018 (https://onlinelibrary.wiley.com/doi/10.1002/hast.962).
Father Pacholczyk also maintains that “there is usually a period of only a few days that it may be possible to extend the functioning of [brain dead individuals’] organs by keeping them on a ventilator.” We point out that some people who have been diagnosed as brain dead have lived for years even though they have not made remarkable recoveries. For example,
Father Pacholczyk contends that such cases “indicate a failure to apply the tests and criteria for determination of brain death with proper attentiveness and rigor.” This explanation is not reassuring for people who have signed up to be organ donors, trusting that doctors don’t make erroneous declarations of death.
One final point. There are many different sets of diagnostic criteria that may be used to determine brain death. A person who would be declared brain dead in one hospital could be considered alive and receive potentially life-saving treatment in another hospital.
Even if you believe that brain death is true death, consider that you do not know where you might be hospitalized in the event you suffer a severe brain injury. What criteria will be used to determine brain death? Will the doctors who do the testing be qualified, careful, and honest? Will your organs be more important to them than your life?
“Should I Refuse to Be an Organ Donor?” Is a Prudent Question
Let us be clear. HALO does not reject vital organ donation by itself. We question the validity of brain death, particularly when “brain dead” individuals are slated to be organ donors or when a brain death determination is made not in order to be certain a patient is truly dead, but to justify stopping all life-sustaining treatment. Our position is compatible with the Church’s position. The Catholic Church is not opposed to organ transplantation but insists that persons must not be killed in order to procure their organs or for any other reason.
HALO cautions people: When in doubt, err on the side of life. We advise that you sign a wallet card refusing to be an organ donor [9] and carry it with you at all times, but the decision is up to you.
NOTES:
[1] Father Tad Pacholczyk, Director of Education, The National Catholic Bioethics Center, “Making Sense of Bioethics: Brain Dead Means Dead,” November 2005, www.ncbcenter.org.
[5] John M. Haas, “Catholic Teaching regarding the Legitimacy of Neurological Criteria for the Determination of Death,” The National Catholic Bioethics Quarterly, Summer 2011.
Please don’t think I have forgotten about the horror of harvesting organs.
I came across this article and post from The Fifth Estate filmed about Canada but it is EXACTLY the same in the United States. In fact the United States was/is the leader and sets the standard for all other countries. In fact is was at Cleveland Clinic that first started using the Donation After Cardiac Death or DCD.
Across the country, physicians involved in organ donation must adhere to what’s known as the ‘dead donor rule’. It seems simple – organs cannot be procured until after the donor has died.
EPISODE SYNOPSIS : It’s a question you might think medical science would have answered long ago – when are you dead? But in “Dead Enough” the fifth estate explores how the standards for when and how people are declared dead can vary from province to province and even from hospital to hospital. Host Bob McKeown looks at how, in the rush to meet the need for life-saving organ transplants, some doctors are worried that we may be pushing the ethical boundaries.
In the documentary Dead Enough, The Fifth Estate shares the stories of two families who both faced difficult decisions about organ donation, because their loved ones were not expected to survive severe brain injuries.
Sharon Thompson Daughter
When her daughter was critically injured and paralyzed in a car crash, for example, Sharon Thompson was at her bedside in a Calgary hospital around the clock.
Thompson says she was approached to consent to organ donation, and asked to consider taking her daughter off life support.
“When people are in an emotional state, I don’t think that’s the time to be asking those questions. Because the emotional roller-coaster we were on for, I would say, at least three of those six weeks … that’s not a great time to be having to make that decision too, because you’re not thinking,” she told McKeown.
Thompson chose not to take her daughter off life support, and Brandice Thompson made a remarkable recovery.
Shane Becker
Shane Becker, in Vancouver, BC.
His family was planning to donate his organs after the 25-year-old college student suffered a fall that severely injured his brain.
When his mother arrived at the Vancouver General Hospital, she said she was told that her son’s brain would soon stop functioning, and he would not recover.
As she was struggling with the news, she was approached by a hospital social worker. Donna Becker said she was asked to sign the organ donation certificate.
“I just made a decision to do so knowing Shane would’ve wanted me to,” she told McKeown.
But the decision to take Becker off life support had to be postponed. The family wanted to WAIT for his father, who had to drive from the BC interior to say his final goodbye.
While they were WAITING, Becker’s mother, a nurse, noticed a tiny change in her son.
“When we were all holding his hand, he did, there was definitely some change in his grasp. It became a little stronger, especially when we spoke to him,” she told McKeown. Because they were waiting Shane Becker is now 32, married and a father.
The debate over defining death has mostly been conducted in the medical community, out of public view. It is time to make the debate public. Excuse my sarcasm but good luck with that. Organ donation is a multi billion dollar industry.
Please take a few minutes and watch this video produced by CBC/Radio-Canada. Listen to both sides of the debate. You may have to decide for one of your loved ones. Informed consent is critical to making the best decision for your loved one.
Informed consent is given when the consented has an adequate understanding of the relevant facts, and voluntarily, without coercion, consents to some procedure.
“The motives are good, the means that are questionable or morally objectionable,” according to Mary Ellen Waithe, professor at Cleveland State University featured in the video at the 20 min mark. I beg you to watch at least 10 minutes of this to see what she discovered. Scary stuff, which will now cause me once again to dig out Jamie’s medical records and see if he was given Heparin. (encourages the brain bleed) Listen to the transcript that she discovered between transplant surgeons at Cleveland Clinic. Crazy…
I completely lost it when I listened to Shane’s own words, saying he was floating above his bed, saw his family weeping and crying and saying, “guy’s I’m here, I’m trying, I’m fighting, I just can’t communicate with you.”He stated he was there cognitively, I was frustrated I couldn’t communicate with them. ”
Shane, young, smart, strong athletic prime candidate for organ donation. Fighting to communicate with his family. Can you imagine what would have happened IF his dad had not been out-of-town and was traveling to get there to say his good-byes?
Oh God, my son Jamie let us know is so many ways he was fighting.
And this is why I write and share because I don’t want anyone to not understand about brain death.
Eighteen months ago, there was an article in the Wall Street Journal, titled What You Lose When You Sign That Donor Card. it was written by Dick Teresi. Since the article was posted, Dick has published a book called The Undead…how medicine is blurring the lines between life and death.
I had read his book about a month before the WSJ came out and loved his writing style, sense of humor and his ability to take medical concepts that I was just starting to understand and turn them into an easy to understand book on the transplant industry.
To say a firestorm exploded would be putting it mildly. My grief therapist even called me to tell me she read the article in the Sunday paper,”Gosh now I understand what you have been saying.” I told her I had read it on Saturday in the online edition and even commented. That comment is now buried in the 572 comments.
Today, my son sent me the article and I decided to read it again and the 572 comments. It was almost comical what started out with reasonable comments and then they slowly turned after an All Points Bulletin was sent out, and all the transplants surgeons, critical care nurses and those who have received organ’s chimed in.
The one thing I kept reading over and over again was, “I hope if you ever need an organ, or you’re loved one does, you don’t get it.” Now that is a wise comeback to make someone feel guilty or fearful for opposing organ donation.
Most of the commenters missed the point completely that you are not dead when they harvest your organs in the sense most people think of death. And that if you are not dead, you feel pain.
Brain death is a legal, medical term that was coined after an Ad Hoc Committee at Harvard determined a new definition of death.
“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.”
The definition was formalized by the Uniform Definition of Death Act and is now the standard used in every hospital. In order to harvest the organ’s from a severely injured person that person must be pronounced dead.
The “Dead Donor Rule”
The “dead-donor rule” refers to two accepted ‘ethical norms’ that govern the practice of organ harvesting before transplantation:
1) vital organs should be taken only from dead patients,
2) living patients should not be killed for or by organ procurement.
There is a movement now by several well-known transplant surgeons to get rid of the “dead donor rule,” and call it what it is a legal fiction. Tell people the truth on what is happening…that you are not dead…yes, critically injured…and get consent to harvest your organs knowing you are not dead.
They believe that with such consent, there is no harm or wrong done in retrieving vital organs before death, provided that anesthesia is administered. But, many doctor’s and OPO’s (Organ Procurement Organizations) are not so sure and are fearful that more people will NOT consent if the truth is exposed. The Gift of Life is so benevolent sounding. (((sarcasm)))
Characterizing the ethical requirements of organ donation in terms of valid informed consent under the limited conditions of devastating neurologic injury is ethically sound, optimally respects the desires of those who wish to donate organs, and has the potential to maximize the number and quality of organs available to those in need. Dr. Robert Truog and Dr. Franklin Miller in the New England Journal of Medicine.
Notice the comment is devastation neurologic injury, not brain death.
Buy Dick Teresi’s book, read it yourself, understand it. Whether you are on board for organ donation or against it be informed. I had to sign more forms when I got my daughters ear’s pierced at the mall and was handed a pamphlet to read than you handed when you are 16 years old at the DMV, or Secretary of State.
Don’t be intimidated to stand up for life…from conception to true death.
