The Imminently Dying Donor

As the supply-demand gap for organs for transplantation grows, transplant programs are more accepting of less healthy donors. This chapter focuses on the extreme case: whether and when individuals who have life-limiting conditions (LLC) should be considered for living organ donation. Two types of cases are examined: living donation by individuals with advanced progressive severe debilitating disease for whom there is no ameliorative therapy; and pre-mortem living donation by individuals who are imminently dying or would die of the donation process itself. With appropriate safeguards, some donations by individuals with LLC could be ethical. Pre-mortem donations challenge the dead donor rule (DDR), an ethical norm that prohibits organ procurement until after the individual is dead. The chapter argues that attempts to circumvent the DDR fail to respect the living donor as a patient in his or her own right.

The intractable problems with brain death and possible solutions

Brain death has been accepted worldwide medically and legally as the biological state of death of the organism. Nevertheless, the literature has described persistent problems with this acceptance ever since brain death was described. Many of these problems are not widely known or properly understood by much of the medical community. Here we aim to clarify these issues, based on the two intractable problems in the brain death debates. First, the metaphysical problem: there is no reason that withstands critical scrutiny to believe that BD is the state of biological death of the human organism. Second, the epistemic problem: there is no way currently to diagnose the state of BD, the irreversible loss of all brain functions, using clinical tests and ancillary tests, given potential confounders to testing. We discuss these problems and their main objections and conclude that these problems are intractable in that there has been no acceptable solution offered other than bare assertions of an ‘operational definition’ of death. We present possible ways to move forward that accept both the metaphysical problem - that BD is not biological death of the human organism - and the epistemic problem - that as currently diagnosed, BD is a devastating neurological state where recovery of sentience is very unlikely, but not a confirmed state of irreversible loss of all [critical] brain functions. We argue that the best solution is to abandon the dead donor rule, thus allowing vital organ donation from patients currently diagnosed as BD, assuming appropriate changes are made to the consent process and to laws about killing.

Double-Effect Donation Disputed

In “Double Effect Donation,” Camosy and Vukov argue that “there are circumstances in which it is morally permissible for a healthy individual to donate their organs even though their death is a foreseeable outcome”. They propose that a living donor could ethically donate an entire, singular, vital organ while knowing that this act would result in death. In reply, I argue that it is not ethical for a living person to donate an entire, singular, vital organ. Moreover, mutatis mutandis, it is not ethical for surgeons and others to perform such a deadly operation. For to do so is “intentionally to cause the death of the donor in disposing of his organs”. Such an act violates the dead donor rule which holds that an entire, singular, vital organ may be taken only from a corpse. Contrary to Camosy and Vukov’s claims, double-effect reasoning does not endorse such organ donation.

Acts that Kill and Acts that Do Not

In response to recent debates on the need to abandon the Dead Donor Rule (DDR) to facilitate vital-organ transplantation, I claim that, through a detailed philosophical analysis of the Uniform Determination of Death Act (UDDA) and the DDR, some acts that seem to violate DDR in fact do not, thus DDR can be upheld. The paper consists of two parts. First, standard apparatuses of the philosophy of language, such as sense, referent, truth condition, and definite description are employed to show that there exists an internally consistent and coherent interpretation of UDDA which resolves the Reduction Problem and the Ambiguity Problem that allegedly threaten the UDDA framework, and as a corollary, the practice of Donation after the Circulatory Determination of Death (DCDD) does not violate DDR. Second, an interpretation of the DDR, termed ‘No Hastening Death Rule’ (NHDR), is formulated so that, given that autonomy and non-maleficence principles are observed, the waiting time for organ procurement can be further shortened without DDR being violated.

Implications of John Kavanaugh’s Philosophy of the Human Person as Embodied Reflexive Consciousness for Conscientious Decision-making in Brain Death

This article reviews the work of Fr. John F. Kavanaugh, SJ (1941–2012), on the human person as embodied reflexive consciousness (RC). It then analyzes the implications of his work for the subject of brain death. Case studies are reviewed which suggest that RC persists unchanged in the setting of substantial brain trauma. RC is posited as an immaterial endowment, rather than a material phenomenon, which is fully present so long as a person is alive and becomes absent when a person is truly dead. As the endowment which makes possible ethical action and is common to all human persons, RC becomes the foundation of human equality. Empirically ascertaining the presence or absence of RC may not be possible—its demonstration may be precluded by physical immaturity or damage. Therefore, until the human person (and not only the brain) has wholly and irreversibly died, RC should be assumed to be present. The current criteria for brain death are incapable of ensuring that the entire brain has permanently and irreversibly ceased to function. Therefore, RC may still be present in those whose organs are harvested after meeting the criteria for brain death. As such, a human person would still be present, albeit a wounded human person. Based on this, a healthcare provider could (and likely should) in good conscience oppose the use of brain death criteria for purposes of harvesting vital organs. On a societal level, utilizing brain death criteria to declare a person dead has the potential in any given case to violate the dead donor rule, and as such conflicts with the widely held moral consensus that organs should only be harvested from those who are dead. Healthcare providers should advocate for medicolegal frameworks consistent with their informed consciences.

Difficulties of Determining Death

This chapter considers what we should do with the “dead donor rule” in transplantation in light of controversies about different ways of determining death. The system of voluntary deceased organ donation depends on public trust, based in part on adherence to the “Dead Donor Rule” (DDR). However, this rule presupposes that the line between life and death can be reliably drawn for purposes of removing vital organs for transplantation. Different but serious conceptual, scientific, and ethical questions surround deceased donation after neurological determination of death and after circulatory determination of death in either controlled or uncontrolled forms. This chapter examines the ethical implications of different approaches to the DDR and asks which public policy should be adopted: (1) abandon the DDR and move to living vital organ donation; (2) retain the DDR but view the determination of death as a legal fiction; (3) retain the DDR but expand individual/familial choices of conceptions of and criteria for determining death; or (4) retain and strengthen the DDR and ethically improve its operation. This chapter argues for the fourth option and for improving the process of individual and familial informed consent to deceased organ donation.

Why DCD Donors Are Dead

Critics of organ donation after circulatory death (DCD) argue that, even if donors are past the point of autoresuscitation, they have not satisfied the “irreversibility” requirement in the circulatory and respiratory criteria for determining death, since their circulation and respiration could be artificially restored. Thus, removing their vital organs violates the “dead-donor” rule. I defend DCD donation against this criticism. I argue that practical medical-ethical considerations, including respect for do-not-resuscitate orders, support interpreting “irreversibility” to mean permanent cessation of circulation and respiration. Assuming a consciousness-related formulation of human death, I then argue that the loss of circulation and respiration is significant, because it leads to the permanent loss of consciousness and thus to the death of the human person. The DNR request by an organ donor should thus be interpreted to mean “do not restore to consciousness.” Finally, I respond to an objection that if “irreversibility” has a medical-ethical meaning, it would entail the absurd possibility that one of two individuals in the same physical state could be alive and the other dead—an implication that some think is inconsistent with understanding death as an objective biological state of the organism. I argue that advances in medical technology have created phenomena that challenge the assumption that human death can be understood in strictly biological terms. I argue that ethical and ontological considerations about our nature bear on the definition and determination of death and thus on the permissibility of DCD.

Controversy in the Determination of Death: The Definition and Moment of Death

This essay reviews recent controversy in the determination of death, with particular attention to the definition and moment of death. Definitions of death have evolved from the intuitive to the pathophysiologic and the medicolegal. Many United States jurisdictions have codified the definition of death relying on guidance from the Uniform Determination of Death Act (UDDA). Flaws in the structure of the UDDA have led to misunderstanding of the physiologic nature of death and methods for the determination of death, resulting in a bifurcated concept of death as either circulatory/respiratory or neurologic. The practice of organ donation after circulatory determination of death (DCDD) raises a number of ethical questions, most prominently revolving around the moment of death and manifested as an expedited time to determination of death, a departure from the unitary concept of death, a violation of the dead donor rule, and a challenge to the standard of irreversibility. Attempts to redefine the determination of death from an irreversibility standard to a permanence standard have significant impact on the social contract upon which deceased donor organ transplantation rests, and must entail broad societal examination. The determination of death is best reached by a clear, strict, and uniform irreversibility standard. In deceased donor organ transplantation, the interests of the donor as a person are paramount, and no interest of organ recipients or of the greater society can justify negation of the rights and bodily integrity of the person who is a donor, nor conversion of the altruism of giving into the calculus of taking.