Editors' Note: This is the second essay in a three-part symposium addressing the question, "What is death?" Three bioethicists will respond to a recent New York Times op-ed arguing that we need to redefine death in order to encourage more organ donations. The three authors have differing views but all largely agree that the authors of the Times piece make grave errors in their attempts to redefine death.
Millions of people have benefited from vital organ transplants globally since Dr. Christiaan Barnard performed the very first heart transplant in 1967. Today, outcomes for heart, lung, and liver transplants are remarkably good, and some recipients of these grafts can live for a decade or more with few challenges.
At the same time, organ donation is an ethically vexed practice. Controversies have raged around the way doctors declare donors to be dead before transplantation occurs.
As Christopher Tollefsen notes, a core ethical tenet of transplantation medicine is the Dead Donor Rule, the idea that the patient must be dead before the procurement of vital organs commences. Thus, a declaration of death is critical for donation to proceed.
Most commonly, vital organ donors have suffered traumatic brain injuries and are declared brain-dead by an assessing doctor. Brain death refers to a situation in which a patient has no detectable brain activity. Brain death criteria include unresponsiveness to external stimuli, the absence of brain stem reflexes like pupil dilation or blinking, and apnea or absence of breathing when ventilation is withheld. Doctors must rule out compounding factors such as drugs or hypothermia in order for donation to go forward.
The idea of brain death as a definition of human death is predicated on the idea that the brain is a kind of central processing unit of the human person, and that when it has permanently lost all function, it is plausible to say that the person has died, too. This legitimates immediate organ removal, presuming that this has been agreed upon by the medical team and the patient and/or his family.
Some scholars, however, argue that brain death is not, in fact, death: at least, not death of the whole organism. Rather, the brain is just a part, albeit a very significant part, of the organism. What is needed for death is presumably a more global cessation of bodily function including all vital organs, not just the brain. If a patient's heart is still beating and he is breathing (even if he is on a ventilator and has no detectable brain activity), the patient is still alive.
The debate about brain death is unlikely to be resolved soon, given that at its core there are metaphysical differences in how death is being defined, and these metaphysical differences are premised on different ways of conceptualizing the life and death of an organism.
An even more vexed area of transplantation is so-called donation after cardiac death or circulatory death (I will use the terms "cardiac death" and "circulatory death" interchangeably for the remainder of this essay). In this procedure, which is a relatively new development in transplantation medicine, vital organs are procured following the "irreversible" cessation of cardiac function of a patient. Donors of this kind are already in hospital, are very sick, and have little to no prospect of recovery. A decision is made to withdraw life support. Once the patient's heart has stopped, doctors wait a period of time (two minutes or more) to ensure, among other things, that the patient's heart does not auto-resuscitate. At this point, the patient is declared dead, and the procurement of organs commences.
Organ transplantation after circulatory death is becoming increasingly common. It could eventually overtake brain-death organ transplantation as the main source of vital organs, given that very few patients die in a manner that meets all the requirements for brain-death transplantation.
Some ethicists are uncomfortable, however, with this method of organ procurement. For one thing, patients can be (and indeed have been) resuscitated well after two minutes of the cessation of heart function. This would seem to suggest that these patients are not dead, at least not yet. They may be dying, but they are not, strictly speaking, dead if there is a theoretical possibility of resuscitation.
Christopher Tollefsen has written a very thoughtful reflection on the ethics of donation after the cessation of cardiac function. He argues that, while patients in this state may not, in fact, be dead, it may still be ethical to proceed with procurement surgery.
Professor Tollefsen recognizes the inconsistency in current attempts to argue that circulatory death is death, given that patients could, at least theoretically, be resuscitated and the heart could restart. Thus, he writes of the need to seek "a practice of organ retrieval that relies neither on fictions nor falsehoods, whether biological, metaphysical, or moral."
Nevertheless, Professor Tollefsen argues that there is an ethical justification available for doctors engaging in vital organ procurement after cardiac death. Specifically, it is not obvious that these doctors are intending the patient's death when they remove a patient's vital organs. Rather, there may be a sense in which double-effect reasoning applies. Might it not be said that the intention of the doctor is not to kill the patient and that you are only hastening death given that the patient is in the process of dying? That is to say, the intention of the doctor is to procure organs, and the hastening of the patient's death is a foreseen but unintended side effect. This line of reasoning to justify donation after cardiac death, Professor Tollefsen suggests, is similar to the reasoning justifying morphine administration at the end of life or the withdrawal of life support from dying patients.
I am not convinced by this argument. It does not seem that doctors are merely hastening the death of the patient. Rather, removing the heart and lungs of a patient who is alive seems like an act of causing death.
This can be contrasted with morphine administration and withdrawal of life support, which, as Professor Tollefsen rightly points out, are in many cases legitimate. Granted, morphine can depress respiration, but it need not do this, and indeed clinicians will administer it in proportionate doses so as to avoid this if possible. Life support, similarly, may legitimately be withdrawn when a patient is clearly dying. But it is not always ethically permissible to withdraw life support, and there may be cases where we should keep a patient on life support if he has a good prospect of recovery. Withdrawal of life support is only appropriate when its continuation is futile and when underlying inevitable processes of dying are merely being held back. Thus, the withdrawal of life support, when carried out in an ethically appropriate manner, may hasten a patient's death, but it doesn't cause death. Instead, it allows the underlying bodily processes leading to death to continue.
Thus, proportionate administration of morphine or withdrawal of life support is different from organ procurement following cardiac death. The latter actually causes the death of the patient while the former merely hastens death. To be crystal clear, when you commence surgical retrieval of the heart of a patient who theoretically has a chance of being successfully resuscitated, then you eliminate that chance and you are certainly contributing to, and arguably playing a causal role in, the death of the patient.
Indeed, in Australia, when donation after circulatory death was introduced, there was a debate to see if transplantation surgeons needed additional legal protection to prevent their being charged with manslaughter. Given this, I do think there are legitimate ethical concerns that one might have about donation after cardiac death.
A similar concern applies in the case of normothermic regional perfusion (NRP) of the heart, which is a procedure to preserve the heart that can take place in the process of donation after cardiac death. NRP is a surgical technique in which surgeons isolate within the body of the donor an organ intended for transplantation after so-called circulatory death has occurred. The organ is pumped with warm, oxygenated blood to ensure that it does not deteriorate before it is procured from the patient's body for transplant. This technique can be contrasted with a situation in which the organ is removed and then oxygenated outside of a human body before it is transplanted into the eventual recipient.
One problem with NRP of the heart lies in the process of isolation of the organ. In NRP of the heart, surgeons clamp the carotid artery, which cuts off blood supply to the brain and causes brain death if the patient isn't brain-dead already. NRP, then, just like the surgical removal of the heart, seems to cause death rather than merely hasten it.
In addition, in NRP, surgeons restart the heart. As Professor Tollefsen points out, they are restarting the heart in such a way that, if they didn't clamp the artery, there might be a chance that the patient would recover some brain activity or maintain it. The surgery, then, is taking active steps to ensure the patient does not come back to life while at the same time restarting the heart. My own view, then, is that normothermic regional perfusion, in addition to donation after cardiac death, is unethical.
I agree with Professor Tollefsen that we should seek a morally consistent approach to organ donation, and one that does not involve intentional killing. I also agree that this leads us to the conclusion that existing criteria for ethical organ donation after cardiac death are untenable. These patients don't seem to be dead in any metaphysical sense and so it is difficult to say that the Dead Donor Rule is being respected in these cases.
I disagree, however, with Professor Tollefsen's analysis of why, nevertheless, removing organs after circulatory death and NRP can be deemed ethical.
It may be the case that these debates will one day be irrelevant, given the speed with which xenotransplantation techniques (methods by which organ transplants are procured and transplanted from nonhuman animals such as pigs into human recipients) are developing. It may be that sooner rather than later our greater source of organ transplants will not be human beings but rather pigs who are specially bred to provide organ transplants (though this of course presents ethical questions itself).
But for now, it is important that we reflect on these and other ethical issues surrounding the procurement and transplantation of vital organs. Evidently, there is space for disagreement even for people of good faith applying ethical principles to this problem.