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The not-so-tell-tale heart.

To the Editor: Before using brain criteria, pronouncing death in humans was based on irreversible loss of something vaguely thought of as respiration or circulation or cardiac function. We have always known the loss had to be irreversible. We have also long known that "irreversible" was ambiguous. In his article ("Are DCD Donors Dead?" May-June 2010), Don Marquis captures this ambiguity when he contrasts irreversibility and permanence. Defenders of cardiocirculatory criteria have known that, in some cases, these functions physiologically could be reversed, but won't be because advance directives or surrogate refusal would make intervention illegal and immoral. When intervening is illegal and immoral, we claim the stoppage is "irreversible" because intervening is normatively impermissible. Marquis challenges this leap, insisting that "permanent" differs from "irreversible" and that stoppages that won't be reversed for normative reasons should be called permanent, but not irreversible.

I have long felt squeamish about calling such stoppages of the cardiocirculatory system "irreversible" (thus permitting organ procurement under the dead donor rule) but have endorsed the prevalent consensus justifying donation after cardiac death of all organs except the heart. The heart cannot be included because reversing heart stoppage would upset the fragile claim that cardiocirculatory function has been lost irreversibly. Contrary to Marquis, I suggested that, in the Boucek cases of successful transplant of pediatric hearts, the surrogates have not exactly refused resuscitation since they clearly have consented to the restarting of the infants' hearts (albeit after those hearts are removed from their original bodies).

Marquis's point is different. He rejects the normative use of the term "irreversible" and thus claims those who are the source of DCD organs are not dead regardless of whether hearts were restarted. If the heart has merely permanently, but not irreversibly, stopped, then, he claims, death has not occurred and no organs can be procured without violating the dead donor rule. My immediate concern is not the normative use of the concept of irreversibility, but the fact that cardiac function has actually been restored, thus making the permanence claim controversial.

The really interesting development is that cases such as Boucek's force even greater refinement of our views about whether and when people can be declared dead by cardiac or circulatory criteria. Assuming that what Marquis calls the normative use of irreversible can be defended (as most apparently still believe), we now must know much more precisely what it is that cannot (legally) be reversed.

Defenders of Boucek's procurements have claimed that the infants were really dead because circulation rather than heart function is critical. Boucek restored heart function but not circulation--at least not in those pronounced dead. If the circulatory part of cardiocirculatory function is really what is critical, then the restarting of the heart is as irrelevant as the restarting of the liver or kidneys following DCD. Thus, if objections to normative determinations of irreversibility can be overcome and circulation is definitive, Boucek's patients really are dead based on circulatory criteria. (That case still requires that we confirm the empirical claim that circulation was indeed irreversibly lost after the mere seventy-five seconds before pronouncing death. It also requires that we accept the slippery normative use of the term "irreversible.")

There is a problem, however. Others are simultaneously developing protocols for what is called "uncontrolled donation after cardiac death." Some of these protocols incorporate chest compressions or extracorporeal membrane oxygenation, which restore some elements of circulation following death pronouncement. They are defended as cases consistent with the dead donor rule because the individuals are deceased based on irreversible cardiac function loss, even though circulation is in some sense restored.

The problem becomes apparent even if Marquis's criticism of the normative use of "irreversibility" can be overcome. Some DCD protocols, such as Boucek's, pronounce death even though heart function will be restored. They do so on the grounds that circulation is what counts. Others pronounce death even though circulatory function will be restored, and do so on the grounds that cardiac function is what counts. Clearly, one cannot have it both ways.

Now the deeper problem is apparent: we have never before had to specify precisely what function is critical in DCD. Using the initials "DCD" masks the fact that the "C" can stand for either "cardiac" or "circulatory." It is not obvious which is correct or whether either is acceptable. The issue cannot be left to the personal philosophical preferences of individual physicians. Not only do these physicians lack training in philosophical analysis; they are also players with strong vested interests. Moreover, they lack public legitimacy to legislate on defining death. Neither DCD followed by restarting of hearts nor DCD followed by restarting of circulation is acceptable, at least until the public has clarified exactly what cardiocirculatory death should mean.

I think it is becoming increasingly clear that no cardiocirculatory criteria are acceptable for pronouncing death except when they are used as empirical predictors that critical brain function has ceased irreversibly. Neither heart nor circulation stoppage indicates death unless critical brain functions have also been lost irreversibly. Clearly, in the seconds after the final heartbeat or the final pulsation of the circulation while the brain is still alive (and potentially even conscious), an individual has not died. Marquis has challenged us to take the definition of death apart once again. He presses us to return to the old problem of whether all permanent function loss is irreversible. I suggest that a more critical issue is precisely what function loss is decisive. If some humans have lost only circulatory or cardiac function (but not both), are they dead by cardiocirculatory criteria? I am increasingly convinced that even loss of both cardiac and circulatory function is not critical unless it indicates permanent and perhaps physiologically irreversible loss of critical brain functions.

Robert M. Veatch

Kennedy Institute of Ethics

To the Editor: Over twenty years ago, when the University of Pittsburgh was considering a policy on donation after the circulatory determination of death (then called nonheartbeating organ donation), we kept a few very important precepts in mind. The first we might call the "big picture": if either withdrawing life-sustaining treatment or organ donation is unethical, then trying to do both sequentially must be unethical as well. The second was that the motivation for and perspective of the procedure must be right. Third, it was essential to get our facts and our logistics right because small deviations could have disastrous consequences on the ethical rectitude of the procedure. And fourth, it was essential to have broad support from various constituencies both within and outside the university. This precept led us to include over one hundred and fifty people in writing the policy, to seek religious and legal review locally and nationally prior to initiation of the program, and to publish our policy with commentary from a broad swath of our nation's ethical leaders. I will not discuss this further, as the healthy debate we started internally continues globally. The result was not perfect, but to this day it serves as the model for DCD.

That is not to say the process is beyond controversy. Having participated in a number of consensus conferences and ethical debates on the topic, including government inquiries, medical societal guidelines, and transplantation consortia, I have learned that those precepts are still important.

Regarding the first precept, I think our nation has spoken regarding withdrawing life-sustaining treatment and organ donation. Both are codified in law, have survived numerous challenges in the judiciary, and enjoy broad support in opinion polls. So the issue is not whether organ donation is ethical, but whether it is ethical immediately following death using traditional death determination criteria of irreversible absence of circulation, respiration, and consciousness. If there is one death, but two sets of criteria, then donation after death should be equally ethical no matter what the mode of death determination.

The second precept is that the ethical perspective must be right. We discovered rapidly that if the motivation was "to get more organs," it opened the door to many potentially unethical results, and moreover, it would be difficult to get broader conceptual approval. On the other hand, if we proceeded from the perspective of the dying prospective donor, the issue took on a whole different ethos. As it was, we were fortunate to have had four families "forcefully request" that organ donation occur after their loved ones died, and we were hard pressed to find a medical, legal, or ethical rejoinder. We learned early in our work with dying patients that we needed to focus on their dying needs. Organ donation has been shown to improve the well-being of those surviving their loved one's death, and to improve coping for those aware of their impending death. It satisfies the stated wishes of many who wish to donate their organs. If those declarations are reasonable, then we must do our best to ethically satisfy them. The donors' wish--to donate functional and not injured organs-helped guide our ethical reasoning. Some have argued that once someone dies, the obligations to that person die as well. Mark Wicclair and others have convincingly argued the converse. In our care of the dying and in our policy, we felt bound by persons' death wishes. It is a societal norm to dispose of valued items and the body, as well as to protect the legacy of decedents according to their antemortem wishes. If those dying wish to donate, we should try to accommodate that.

The third precept--getting our facts right--was difficult. In our attempt to codify our death determination criteria, we found that there were no criteria published--amazing, given that every physician and coroner must make this determination with certainty. We polled locally and nationally to discover the criteria used and found that in essence, if the physician found that the patient had absent vital signs for about twelve seconds, then death was determined. While we wanted death preceding organ donation to be determined the same way as death not preceding donation, we felt that this standard was lacking. We observed that neurological criteria started out as surrogates for the traditional criteria. Absent brain function always was and is coupled with absent circulation and respiration in the absence of a ventilator, and absent brain function occurs in the absence of circulation. Before 1976 in the United States, withdrawing life-sustaining treatment was not condoned legally or medically, and so it was necessary to determine a method for death determination without removing the ventilator. Some have argued that the circulatory-respiratory criteria are surrogates for brain death. They have missed the point. The "death" is the same: in both criteria sets, there is no brain function. A literature review and a panel of resuscitation experts led us to our two-minute rule. We felt that this duration of time was reasonable and feasible for us to use for both donors and nondonors, although for potential donors we added the requirement for an objective determination of absent circulation (arterial catheter or echocardiography).

I believe that we misnamed the policy. It is a misnomer to say "cardiac death" or "nonheartbeating." It is "circulatory-respiratory-brain death," but this is too much of a mouthful for most communication, even though it is most accurate. Death determination for the last one hundred and fifty years was based on the triad. For those who assert that the neurological criteria are not met by the two-to-five minute rule, they should refer to the copious literature demonstrating absent brain function when circulation to the brain is absent. In fact, absent brain function in the presence of absent circulation is more certain than absent brain function in those who satisfy the neurological criteria for death. The facts about death determination are often misquoted. The following are fact: (1) If there is no circulation to the brain, there is no function of the brain. (2) Proof of permanent absent circulation is equivalent to--and, data suggest, better than--a clinical exam showing no gross brain function. Thus, anyone meeting the circulatory-respiratory-consciousness criteria meets the neurological criteria.

The example of two people who are in the "same" physiological state, but one is classed as "do not attempt resuscitation" and the other as "full code," has been often analyzed but I believe misses the mark. It does not consider the actual physiology resulting from the treatment "state." For example, if cardiopulmonary resuscitation is used, then circulation and respiration exist, and the patient is not dead. Consider an expanded example. Suppose three people suddenly lose circulation, respiration, and consciousness, one in the wilderness and the other two in an emergency room. The one in the wilderness is dead when her circulation-respiration-consciousness does not resume on its own. The people in the ER are in the same state. However, when cardiopulmonary resuscitation is applied to one, circulation and respiration resume, extending life. It is only when CPR is halted, and the patient is reevaluated to determine that circulation-respiration-consciousness are permanently absent, that death can be determined. The second emergency room patient did not have CPR and that person died at exactly the same time as the person in the wilderness. All three met the criteria in the same way, but one had an intervention to forestall death, while the others did not. This is why the question whether circulation, respiration, and consciousness "could" have been restarted is irrelevant. What matters is, were they restarted? If the answer is "no," the patient is dead. Social circumstances like DNR status or organ donor status are also irrelevant.

Organ donation after death is and no doubt will remain controversial until it is no longer required for replacing failed organs. I am pleased that large consensus panels have supported the procedure in principle. I encourage those who challenge whether such patients are dead to observe a death determined using an arterial catheter or echocardiogram and the circulatory-respiratory-consciousness criteria. Though only a few minutes, the wait, especially if the family is present, seems endless.

Michael DeVita

University of Pittsburgh

Medical Center

To the Editor: In his criticisms of arguments supporting the use of criteria for declaring the cardiac deaths of donors under DCD protocols, Don Marquis assumes those arguments rely on conceptual claims about the essential natures of "death" and "irreversibility," rather than on pragmatic and ethical claims about the circumstances under which determinations of irreversibility and death can be properly made. Reflection on his arguments has helped me recognize that I suffered from a similar confusion in an article that is one of his targets ("The Irreversibility of Death: A Reply to Cole," Kennedy Institute of Ethics Journal 3 (1993): 157).

Marquis notes the physiological similarity between patients in cardiac arrest who will be resuscitated in an emergency room and donors who will be declared dead in a DCD protocol. Since "death (and its irreversibility) is a state of a body," either both these patients are dead or neither of them is. Since the use of DCD protocols implies otherwise, Marquis argues, such protocols are incompatible with a proper understanding of the meaning of "death" and "irreversibility."

But deciding on the nature of death and irreversibility and determining when death has occurred are two different things. Grant for the sake of argument that "irreversible" refers to a condition of the body alone. Now that the philosophy's settled, two practical questions arise: What evidence should we use to determine whether "irreversibility" is present? And how certain does that evidence have to be?

The answer to the first question is influenced not just by the biology of bodies, but by our changing abilities to understand and intervene in the processes involved in irreversibility. Physiologically, the patient in cardiac arrest who would properly have been declared dead in an emergency room prior to the development of CPR might be much the same as a patient today, for whom such a declaration would be premature, to say the least. Agreeing to this statement betrays no conceptual confusion because the concepts have remained unchanged. All that's changed is how we determine that we've got an instance of the concept in front of us.

The answer to the second question is influenced by the stakes in making a declaration and so depends on judgments about values. The cardiopulmonary condition of a hospice patient who has an anticipated cardiac arrest at the end of a terminal illness may be very similar to our now-familiar patient entering the emergency room. And yet the first patient may be properly declared dead much sooner than the second one should be. Agreeing to this statement betrays no conceptual confusion either. The question is not whether the arrest is actually reversible at the moment of the declaration, but whether we have enough evidence to conclude that it is. We'll draw that conclusion in the emergency room only after aggressive attempts at resuscitation have failed. It would be bizarre to demand the same level of certainty with the hospice patient because both the meaning and the value of a "successful" resuscitation are dramatically different.

Marquis provides a very astute and interesting philosophical dissection of the concept of irreversibility. Its practical relevance for determinations of death under DCD protocols, however, remains unclear.

Tom Tomlinson

Michigan State University

To the Editor: In the last forty years, modifying the meaning of death has been successful in increasing the rate of organ donation. Although these modifications have increased the donor pool by introducing the notions of "brain-dead donors" and "donors following circulatory death," they have also created a great deal of conceptual dissatisfaction.

Don Marquis convincingly argues against the claim that permanent cessation of circulation is a valid surrogate indicator for irreversible cessation in DCD. Although "irreversible" applies to absolutely unalterable phenomena (like death), "permanent" is a contingent property depending on contextual factors such as availability of resources, on human intention to reverse a condition, or--as happens in controlled DCD--on an existing moral agreement that resuscitative attempts in these patients should not be performed.

Marquis is correct in claiming that one consequence of believing that "permanent" suffices for declaring death is that two individuals sharing an identical medical condition could have different vital statuses, according to the intentions of their physicians or the contingency of a dominant moral consensus. This conclusion is absurd for those who believe, as Marquis does, that "death is a state of the body" and that "if an individual is dead in virtue of his body being in state S, then all other individuals in state S are also dead."

"Dead" is generally understood to be an independent state of the body, rather than a moral status bestowed by society. Nevertheless, whether death ought to be considered as a natural and objective fact rather than a social construction is an open question: Can we call donors declared dead by neurologic or circulatory criteria "dead" because they really are dead? Or, rather, are they dead only by virtue of us having moral reasons to call them "dead"?

The unresolved debates concerning brain death and the more recent discussions regarding circulatory death for DCD donors suggest that clinicians and scholars still struggle with the practical consequences of death being a hybrid phenomenon, with one foot in biology and the other in culture. Medical knowledge can certainly identify when a brain is totally destroyed. It can also provide reliable data that allow us to make an accurate prediction that the loss of circulatory function in a particular patient will not recover spontaneously. However, medical knowledge on its own will never be able to resolve the more fundamental question whether these situations really equal human death. To pretend otherwise grants medical science a power that it does not deserve, disguises moral judgments with pseudoobjective claims, and hides the very normative nature of the question, "Under which conditions would it be morally acceptable to procure vital organs from dying patients?"

David Rodriguez-Arias

Vailhen and Maxwell J. Smith

University of Toronto Joint

Centre for Bioethics

To the Editor: Don Marquis asks "Are DCD donors dead?" I believe the answer is yes. If the heart of a person who is not going to donate organs and who will not be resuscitated stops for two minutes and the person is pronounced dead, do we wring our hands and debate whether she is really dead? No. She is dead. If we doubt this, then we must universally doubt the ability of any physician to pronounce someone dead. But suppose this very same person has a signed donor card in her pocket: is she now not dead? No, she is still dead; donor documents do not have such magical powers. That organs from that corpse, in another environment, might be induced to function does not alter the fact that she is dead.

His statement that "there will be many pairs of patients whose bodies are in exactly the same state, even though one member of the pair is considered dead and the other alive" is true, however. That state is New Jersey, where since 1991 a conscience clause has allowed patients or surrogates to choose cardiopulmonary criteria for death over whole-brain criteria. So it is certainly not remarkable that we may have two patients in exactly the same physiologic state, with one considered dead and the other considered alive.

Robert A. DeWeese

Indiana University

Purdue University Columbus

To the Editor: In our judgment, Don Marquis has shown that patients declared dead in DCD are indeed not known to be dead. The case he makes is quite clear: given a DCD policy of two human bodies suffering asystole, having exactly the same physiological conditions, one might be recognized as not dead and resuscitated (because he had no do-not-resuscitate order), while the other is declared dead (because he had a DNR and consented to DCD). Clearly, "dead" cannot mean the same thing in the two cases. So there is either a falsehood or a different meaning being imposed on the word "dead." But being alive versus being dead--as Marquis shows quite clearly--is properly viewed as an inherent characteristic of the body, not a term that receives its meaning from norms or conventions. Rather, the norms and conventions regarding human bodies (or cadavers) should depend, in the first place, on whether those bodies really are dead or alive.

In the last section of his article, Marquis sketches some approaches by which one might conclude that taking organs from such donors could still be ethically justified. He suggests our view might support that conclusion. Our view is that the basis for having intrinsic personal dignity is having a basic natural capacity for rational agency--more precisely, being an individual with a rational nature. Marquis writes that those who qualify for DCD have typically suffered such devastating neurological injuries that they have lost the basic natural capacity for rational agency.

However, in our judgment, as long as a human being continues to live, he or she still does have the basic natural capacity for rational agency, even though he or she may not ever actualize that capacity. Perhaps more clearly: if one can know with certainty that an individual does not have any basic natural capacity for rational acts, then one can conclude that this is not a human being. For a human being is a rational animal (a specific type of individual with a rational nature, a person), and one is a rational animal only if one has the basic natural capacity for rational acts. Rational acts need not be very developed; they may involve only a rudimentary self-awareness (and a human individual has a natural capacity for such acts from the moment she comes to be--that is, from the moment an individual comes to be with an internal constitution disposing her to develop herself to the stage where she will perform such acts). And in our judgment, one can know with certainty that a human individual has lost the basic natural capacity for rational acts only if one knows that he or she has suffered total and irreversible brain death. In that case the individual has died; in Aristotelian language, a substantial change has occurred. If there is a living individual where the human being once was (and being sustained by ventilator and other measures), it is not the human individual that was alive before brain death (on this issue please see Patrick Lee and Germain Grisez, "Total Brain Death, A Reply to Alan Shewmon," forthcoming in Bioethics).

Patrick Lee

Franciscan University of Steubenville

Robert P. George

Princeton University

Don Marquis replies:

When the donation after cardiac death protocol was first discussed, it was called "the nonheartbeating donor" protocol. Later, this rather awkward locution was replaced with "the donation after cardiac death," or DCD, protocol. James Bernat published an essay in 2006 titled "Are Organ Donors after Cardiac Death Really Dead?" (Journal of Clinical Ethics 17, no. 2 [2006]: 122-38). Both Bernat and Michael DeVita were authors of a 2006 report defending and encouraging donation after cardiac death ("Report of a National Conference on Donation after Cardiac Death," American Journal of Transplantation 6 [2006]: 281-91). However, Boucek's successful infant heart transplants based on the DCD protocol suggest that all is not well. After all, the transplants are successful only if the heart is a living organ. The transplant accords with the DCD protocol only if the heart is not a living organ. The success of Boucek's transplants shows that there is something wrong with the DCD protocol. The problem with DCD is not resolved by refusing to perform the transplants that make the problem with the protocol obvious.

Now the issue becomes: Is there a defensible variant of the DCD protocol? Both Bernat (in his Another Voice column from the May-June 2010 issue of the Report) and DeVita adopt the following strategy. They claim (1) that the "C" in "DCD" should stand for "circulatory" and (2) that the permanent, but not necessarily irreversible, loss of circulatory function should be the criterion for death. Does this fix succeed?

When confronted with a difficulty with a protocol, there is certainly nothing wrong with fiddling around with the protocol--or the name of the protocol--to free it from difficulties. However, the Bernat-DeVita fix is subject to some problems. Suppose that the Bernat-DeVita proposal is understood as a proposal concerning the definition of death. The first problem, as I argued in the essay, is that "permanent" and "irreversible" do not mean the same thing. If there is irreversible loss of a vital function, then, of course, that loss is permanent. However, the converse is not true. As a consequence, a vital function can be lost permanently, but not irreversibly. Now, as a matter of fact, death is defined in almost all states in terms of the irreversible--not the permanent--loss of the vital function mentioned in the definition. Accordingly, the Bernat-DeVita proposal does not resolve the legal problem with DCD protocols, absent a change in the definition of death statutes in most states.

The second problem shows up in an analysis of cases in which a health care professional has a legal or professional duty to attempt to resuscitate a patient who has just experienced cardiac arrest. Consider any case in which the health care professional violates that duty and cessation of circulatory function in the patient is permanent. In such a case, on the Bernat-DeVita proposal, death will have occurred at the time of the arrest, for, from that time on, there will be permanent loss of circulatory function. Since there is permanent loss of circulatory function, according to the Bernat-DeVita proposal, the patient will be dead. Since the patient will be dead, the health care professional no longer had any duty to him because health care professionals have no duties to corpses. Therefore, on the Bernat-DeVita proposal, a health care professional who does not resuscitate a patient we think has violated her duty to resuscitate cannot have violated her duty. That won't do. Therefore, the Bernat-DeVita proposal is flawed.

The third problem is that the Bernat-DeVita proposal violates the axiom that death is a state of a body. The axiom entails that if a body is dead, than another body in exactly the same state is also dead. The conflict with the axiom can be seen from an analysis of the examples that DeVita offers. According to DeVita, a patient who dies in the wilderness is dead when her life functions do not resume on their own. A person in the same state in the emergency room on whom cardiopulmonary resuscitation is performed cannot be determined to be dead until CPR is halted. This violates the axiom, especially if you think of the case in which CPR is successful! Therefore, the proposal to change the definition of death so that one is dead if one's circulatory function has ceased permanently is flawed.

Perhaps Bernat and DeVita should be understood in a different way. According to Bernat's Another Voice column, "since DCD donors have do-not-resuscitate orders and medical resuscitation will not occur, the permanent cessation of circulation inevitably and rapidly evolves into irreversible cessation. Given these conditions, permanent cessation of circulation is a valid surrogate indicator for irreversible cessation." On this understanding of the Bernat-DeVita view, the basic legal definition of death need not be changed. Bernat is claiming that in DCD contexts, permanent cessation of circulation is a valid surrogate indicator for irreversible cessation of circulation. Is this true?

DCD cases are very special. Because the DCD protocol takes the dead donor rule for granted, the time after which there is no detectable heartbeat must be as short as possible so that warm ischemia of donated organs is reduced to a minimum. Also, the time must be long enough to ascertain that the donor is truly dead--that is, has suffered irreversible cessation of circulatory function. The trouble with Bernat's proposal is that his "rapid evolution into irreversible cessation" criterion is not rapid enough. If we knew it were, resorting to the standard subterfuges of defending the determination of death in DCD contexts in terms of permanent cessation of circulatory function or in terms of a normative sense of irreversibility would not have been necessary.

Bernat (and I'm sure DeVita would agree) also justifies his view on the ground that "physicians routinely and rightly declare patients dead at the moment their cessation of circulation is permanent." This is not true. People very often die when medical personnel are not present. Therefore, the time recorded is the time at which death is observed to have taken place, not the time at which the death actually took place. It would be silly to hold medical personnel to a higher standard, since when they are not present when the patient actually dies, they do not know the time at which circulatory function ceased either permanently or irreversibly. Getting the time right in routine cases does not make a dime's worth of difference, except, perhaps, when criminal activity is suspected.

DCD protocols are clearly very different situations, which, again, is exactly why the issue of precisely when a death occurred is essential to their justification. The issue of what physicians routinely do in non-DCD cases is irrelevant. In sum, I do not think that either Bernat or DeVita has made his case.

I am not sure I understand Tomlinson's objection to my view. He seems to think that the claims in my paper rest on demanding an unrealistic level of certainty concerning whether organ donors in DCD contexts are dead. Of course some patients who are DCD donors will really be legally dead, and some will not. However, I should think that if you believe that vital organ donation is morally justified only if the donor is dead--that is, if you accept the dead donor rule--then you would want to be quite certain that the donor is dead. Accordingly, I fail to understand why I demand an unrealistic level of certainty.

Robert A. DeWeese claims that in ordinary contexts, if a person's heart stops for two minutes, then she is dead. He says: "If we doubt this, then we must universally doubt the ability of any physician to pronounce someone dead." An implication of the argument of my paper is that DeWeese's claim is clearly false. Since he gives no reason for thinking otherwise, I do not find his objection compelling. If my view is incompatible with state law regarding the determination of death in New Jersey, so much the worse for New Jersey.

The vast majority of DCD donors are patients who, because of extensive head injuries, are so neurologically compromised that, although they are not brain dead, they will never regain a life that they will regard as worthwhile. Because of this, surrogate decision-makers ask for life supports to be withdrawn. One might characterize this group of patients as a group of individuals who have lost the basic natural capacity for rational acts. I suggested that if we would not question a decision to withdraw life supports, which will result in death for such patients (and we don't), then we should not question removing their organs, also resulting in death, either. Why should we think that there is such a significant difference in the morality of the two activities? If this is so, then transplantation from such patients is morally permissible even if the dead donor rule is jettisoned.

Patrick Lee and Robert George suggest that the dead donor rule is not violated in these cases because human beings are rational animals. Therefore, patients who have lost the basic natural capacity for rational acts are not human beings. Their view entails (as they admit) that this extensively neurologically compromised patient is not a human being. This seems patently false. I believe that the problem with this argument is the Lee-George understanding of the definition of human being as "rational animal." I think the fix is easy, but that is a topic for another essay.

David Rodriguez-Arias Vailhen and Maxwell J. Smith apparently agree that my critique of the DCD protocol is sound on the condition that death, in the final analysis, is a state of a body. However, they seem to think that we could have moral reasons for calling someone dead even if he were not dead in the "state of the body" sense. I cannot imagine what good moral reasons for calling someone dead would be. It is worth noting that, with respect to debates concerning early human life, virtually no one believes that there are moral reasons for denying that a fetus is alive. (Contrast this with denying that the fetus has full moral status.) I fail to understand why one would take a different view at the far end of life. Indeed, in my view, removing organs from candidates for organ donation on the basis of the DCD protocol is justified, not because those patients are really dead--for they are not--but because the future lives of those patients would not be worth living to them, and consequently removal of their vital organs does not harm them. Ending the lives of such living patients harms them no more than abortion of living anencephalic fetuses harms them. I note that Robert Truog and Franklin Miller have made the next-door neighbor to this point in a previous issue of the Report ("Rethinking the Ethics of Vital Organ Donation," Nov-Dec 2008).
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Title Annotation:letters
Author:Veatch, Robert M.; DeVita, Michael; Tomlinson, Tom; Vailhen, David Rodriguez-Arias; Smith, Maxwell J
Publication:The Hastings Center Report
Geographic Code:1USA
Date:Mar 1, 2011
Words:5869
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