On May 23, 2003, the newspaper of the Archdiocese of St. Louis, the "St. Louis Review", published an editorial stating that "the NHBD (nonheart beating organ donation) protocol is cruel and dangerous and does not meet standards of respect for human life" and called for an immediate moratorium on NHBD at all St. Louis hospitals.
Reaction was swift and critical. The St. Louis PostDispatch cited transplant surgeons and others who defended NHBD as a way to increase organ donations by taking organs from patients who "have little brain activity and are in a vegetative state with no hope of recovery" and whose families decide to discontinue life support1. Michael Panicola, vice president of ethics for the Catholic SSM Healthcare System, defended NHBD as "an opportunity for people to give the gift of life when they don't meet brain death criteria."
For the past several years, a little known but disturbing revolution has been occurring in organ donation. In the understandable but sometimes alarming zeal to obtain more organs, a new procedure called "nonheart beating organ donation" has been quietly added to brain death organ donation in more and more hospitals in the United States and in other countries2.
Here, we are referring only to so-called "controlled" NHBD protocols, although the "uncontrolled" NHBD protocols, which are used for patients who have failed resuscitation efforts, have their own set of ethical problems which overlap with "controlled" NHBD, such as cannulation for preservation of organs before consent can be obtained.
While brain death organ donation means that the person is legally dead but still has a heartbeat when organs are harvested, the potential NHBD patient does not meet the brain death criteria but is termed "hopeless" or "vegetative" soon after suffering a devastating condition such as a severe stroke or trauma, and while still needing a ventilator to breathe. Because of the legal acceptance of the so-called "right to die", families or other surrogates then agree to have the ventilator turned off, a "do not resuscitate" order is written, and when the patient's breathing and heartbeat stops, the organs are removed. In NHBD, the ventilator is usually stopped in an operating room while a doctor watches for up to one hour until the heartbeat and breathing stops. After an interval of usually just 2 to 5 minutes, the patient is declared dead and the transplant team takes over to remove the organs. A determination of brain death is considered unnecessary even though one of the inventors of the NHBD protocol, Dr. Michael DeVita has admitted, "the possibility of (brain function) recovery exists for at least 15 minutes." Nonetheless, Dr. DeVita defends waiting only 2 minutes before harvesting the organs because he believes that the person is unconscious and, as he writes, "the 2minute time span probably fits with the layperson's conception of how death ought to be determined."3
A recent article in the New England Journal of Medicine illustrates the disturbing lack of objective medical standards for withdrawal of ventilators4. This article, published in September of 2003, admits that no study was done to "validate physicians' predictions of patients' future functional status and cognitive function", and the researchers did not ask doctors to "justify their predictions of the likelihood of death or future function."
With such subjective standards being used for withdrawal of ventilators, it should not be surprising that the potential NHBD patient will unexpectedly continue to breathe for longer than the usual one hour time limit required for the organ transplant to be successful. In these cases of failed NHBD, the transplant is then cancelled but, rather than resuming care, the patient is just returned to his or her room to eventually die without any treatment or further life support.
The recent case of Jason Childress illustrates the lethal problems with this nontreatment plan and the lack of objective medical or ethical standards for withdrawing ventilators5.
Jason is a young man who was severely brain injured in a car accident and became the subject of a "right to die" case in which the judge ordered the removal of his ventilator 2 months after his accident. Against all predictions and because his tube feedings were not also stopped, Jason continued to breathe on his own and is now showing signs of improvement and receiving treatment. Ominously, the doctors' initial recommendation to withdraw the ventilator 2 days after his accident could have made him a prime candidate for NHBD since he would have possibly been too injured to breathe on his own that soon after his accident. The rush to declare patients "hopeless" or "vegetative" soon after illness or injury can thus deprive at least some patients of the chance of survival or even recovery6.
Some NHBD protocols do not even require that the donor be mentally impaired at all. For example, one ethicist wrote about the case of a fully conscious man with ALS who decided to check himself into a hospital, have his ventilator removed and donated his organs under NHBD criteria. The ethicist wrote, "An operating room nurse reported feeling that the procedure was 'Kevorkian-like'"7.
Even more pressure to increase the use of NHBD is apparently coming in the US, even though the public has been kept largely uninformed about this new method of obtaining organs. For example, last November, an advisory committee to the US Health and Human Services department8 recommended that, in the future, all hospitals should establish policies and procedures to "manage and maximize" NHBD and also be required to "notify organ procurement organizations prior to the withdrawal of life support to a patient, so as to determine that patient's potential for organ donation." Unknown to most of the public, hospitals are now already required to report every death to the local transplant organization even when tissue or organ donation is refused and, if enacted, this new proposal will put further pressure on medical personnel and distraught families.
Ironically, at the same time, new information is coming forward about these so-called "hopeless" patients who are considered potential NHBD candidates. A September, 2003 article in the New York Times featured the work of Dr. Joseph T. Giacino and others with people who have had severe brain damage but who are now showing signs of "complex mental activity" even after months or years with little sign of consciousness9. And, of course, there are many reported cases even in the media of brain injured people who improve or even recover long after the doctors declared them hopeless.
Yet, even this may not be enough for some ethicists like Dr. Robert Truog, who recently proposed that "individuals who desire to donate their organs and who are either neurologically devastated or imminently dying should be allowed to donate their organs, without first being declared dead10." In other words, Dr. Truog wants to eliminate even the controversial NHBD protocol in favor of just taking organs from incapacitated or dying patients while they are obviously still alive.
Linking the so-called "right to die" with organ donation, as NHBD does, has truly opened a terrible Pandora's box. While organ donation can be a gift of life and a worthy goal, we must not allow the deaths of some people to be manipulated to obtain organs for others. The position of Cardinal Justin Rigali, now Archbishop of Philadelphia, who was at that time the Archbishop of St. Louis and who asked for an immediate moratorium and reevaluation of NHBD, is eminently sensible and should be replicated worldwide.
2 "It is difficult to determine whether other countries such as Holland and Japan adopt a uniform defensible template in their practice of controlled NHBOD and information from the UK is also extremely limited as to the extent and nature of practice." From "Nonheart beating organ donation: old procurement strategy -- new ethical problems" by M. D. Bell, Journal of Medical Ethics 2003;29:176181. Online at: http://jme.bmjjournals.com/cgi/content/full/29/3/176 [Back]
3 "The Death Watch: Certifying Death Using Cardiac Criteria" by Michael A. DeVita, MD, University of Pittsburgh Medical Center, Pittsburgh, Pa. Prog. Transplant 11(1):5866, 2001. © 2001 North American Transplant Coordinators Organization [Back]
"Withdrawal of Mechanical Ventilation in Anticipation of Death in the Intensive Care Unit" by Deborah Cook, M.D., et al. New England Journal of Medicine, Volume 349:1123-1132, September 18, 2003, Number 12. Abstract available online at: http://content.nejm.org/cgi/content/short/349/12/11235 "Jason Childress Still Breathing, Receives Proper Medical Care" by Steven Ertelt, LifeNews.com Editor, September 25, 2003. Available online at: http://prolife.org/bio58.html [Back]
6 "Ethical Implication of Non-Heart Beating Organ Donation" by Nancy Guilfoy Valko, RN. Voicesagazine, Michaelmas 2002 Volume XVII, No. 3. Online at: http://www.wf-f.org/02-3-OrganDonation.html [Back]
7 "A Primer for Health Care Ethics" by Kevin O'Rourke, O.P., Georgetown University Press, 2000, p. 182 [Back]
8 US Department of Health and Human Services Advisory Committee on Organ Transplantation, Recommendations to the Secretary. November 2002. Available online at: http://www.organdonor.gov/acotrecsbrief.html [Back]
9 "What if There Is Something Going On in There?" by Carl Zimmer. New York Times, 9/28/03 [Back]
10 "Role of brain death and the deaddonor rule in the ethics of organ transplantation" by Robert D. Truog, MD, FCCM; Walter M. Robinson, MD, MPH . Critical Care Medicine Journal, September, 2003; 31(9):2391-2396 [Back]