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Do organ donors have to be dead?

From "The Dead Donor Rule: Should We Stretch It, Bend It, or Abandon It?" by Robert M. Arnold and Stuart J. Youngner, in the June issue of the Kennedy Institute of Ethics Journal. Arnold is a professor at the University of Pittsburgh's Center for Medical Ethics; Youngner is the director of the Clinical Ethics Program at University Hospitals in Cleveland. Three important principles currently provide the moral framework for organ procurement in America. First, the dead-donor rule: patients must be dead before their organs are taken. Second, the prohibition against active euthanasia: although patients may be allowed to die under certain circumstances, they must never be actively killed. Third, the primacy of consent: patient or family consent must precede organ retrieval. These rules serve to reassure people that when they enter hospitals they will not be killed or mistreated so that their organs can be taken.

In the early 1990s, doctors and administrators at the University of Pittsburgh Medical Center found themselves in two paradoxical quandaries. First, they were finding it increasingly difficult to meet the growing demand for organs for transplant. At the same time, they often found themselves in the unpleasant position of having to tell families of terminally ill or massively injured patients that despite their wishes, their relative's organs couldn't be used for transplant. This was due simply to the limitations of the existing transplant procedure and the restrictions of the dead-donor rule: in many cases, after life support was removed, a patient's organs would deteriorate to the point of unusability before he or she could be officially declared dead and those organs could be removed. The center began looking for ways to reconcile its need for organs, the wishes of patients who were prepared to donate, and the dead-donor rule.

The result of that quest is a policy known as the Pittsburgh protocol, which went into effect at the center last year. The protocol is used only with patients who are dependent on life-sustaining technology and only after they (or their families) have explicitly requested that their life support be removed and their organs be donated for transplant. In these cases, patients are taken into an operating room, where doctors administer pain-killing medication and remove the patient's life-support systems. Under the protocol, the doctors document the time that the patient's pulse and breathing cease, and then wait for two minutes, during which time no attempts are made to resuscitate, even though the heart may still show evidence of electrical activity indicating that it could still be restarted. After those two minutes, the patient is declared dead and the needed organs are quickly removed by surgeons, who have been standing by, and prepared for transport.

The Pittsburgh protocol has caused considerable controversy among medical ethicists. The most frequent complaint about the protocol is that it allows a patient to be declared dead at a point when his or her heart could probably be restarted by medical intervention and might even be able to restart on its own. This leaves the distinction between almost dead, maybe dead, probably dead, and definitely dead indeterminate. As a result, many argue that the Pittsburgh protocol merely provides a convenient way for hospitals to improve their chances of obtaining organs while still adhering to the letter, if not the spirit, of the dead-donor rule.

In fact, it is the dead-donor rule itself that is at the root of the controversy over the Pittsburgh protocol. By excluding all but the definitely dead from organ donation, it tempts us to do precisely what many accuse the Pittsburgh protocol of doing - to redraw the line between life and death simply to include patients as dead who were previously considered alive.

One could argue, for instance, that the introduction of the concept of "brain death" in the 1960s was nothing more than a well-intentioned effort to gerrymander the line between life and death in order to increase the donor pool without inflaming public opinion. The idea of brain death, though legally and clinically acknowledged, still causes confusion, even among medical professionals. One study found that a third of physicians and nurses involved in the management of "brain-dead" patients considered them to be, in fact, alive.

Thus the brain-death formulation seems less the result of intellectual "discovery" - i.e., we figured out that some people we said were alive are really dead - and more the result of using conceptual sophistry to solve a social problem. Unfortunately, such a utilitarian justification for changing the definition of death is inherently unstable; it will result in continued attempts at redefinition whenever utility requires it.

What if, instead of continually gerrymandering the line between life and death, we were simply to ask, "Are there some patients whose quality of life is so unacceptable and whose death is so imminent (by fate or their own decision) that we may take their organs before they die?" Instead of pretending that we can continue to develop more accurate definitions of death (which conveniently expand the donor pool), we would allow organ procurement, for example, from patients with severe head injuries who were irreparably damaged and near death but who had not lost all brain function.

We could minimize the problems of judging what constitutes harm to the patient by insisting on clear and rigorous consent by the potential donors rather than their surrogates. People could sign donor cards or living wills that designated the circumstances under which their organs could be taken. Machine-dependent patients could give consent for organ removal before they are dead. For example, a ventilator-dependent patient could request that his life support be removed at 5:00 p.m., but that at 9:00 a.m. the same day he be taken to the operating room, put under general anesthesia, and his kidneys, liver, and pancreas removed. Bleeding vessels would be tied off or cauterized. The patient's heart would continue to beat throughout the surgery, perfusing the other organs with warm, oxygen- and nutrient-rich blood until they were removed. At 5:00 p.m., according to plan, and long before the patient could die from renal, hepatic, or pancreatic failure, the ventilator would be removed, the patient's heart would stop, and the patient would be pronounced dead.

To take the scenario even further: if active euthanasia - e.g., lethal injection - and physician-assisted suicide are legally sanctioned, even more patients could couple organ donation with their planned deaths; we would not have to depend only upon persons attached to life support. This practice would yield not only more donors but also more types of organs, since the heart could now be removed from dying, not just dead, patients.

If a look into such a future hurts our eyes (or turns our stomachs), how are we to understand such feelings? Are they merely emotional reactions and cultural habits that stand in the way of social progress? Or are those feelings, even if irrational, important to our moral character? Even if the dead-donor rule is merely symbolic, is it a symbol that we need?

Given the difficulties our society is likely to experience in trying to openly adjudicate these disparate views, some might ask, "Why not simply go along with the quieter strategy of policy creep? It seems to be getting us where we want to go, albeit slowly. Besides, total candor is not always compatible with the moral compromises that inevitably accompany the formulation of public policy." But calling a spade a spade has at least one advantage. By framing our choices in stark rather than obfuscated terms, we may be able to choose our path more clearly and be less surprised by where it takes us.

Our society is on the brink of a paradigm shift in which the procurement of body parts will increasingly link the intentional ending of some lives with the salvaging of others'. These practices will inevitably pit our insatiable longing for better health and longer life against deep-seated notions of the sacred and the profane. How we attempt to resolve this conflict will reveal a great deal about who we are and what we value.
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Author:Arnold, Robert M.; Youngner, Stuart J.
Publication:Harper's Magazine
Date:Dec 1, 1993
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