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Not Dead Yet: Controlled Non-Heart-Beating Organ Donation, Consent, and the Dead Donor Rule

  • DALE GARDINER and ROBERT SPARROW
Extract

The emergence of controlled, Maastricht Category III, non-heart-beating organ donation (NHBD) programs has the potential to greatly increase the supply of donor solid organs by increasing the number of potential donors. Category III donation involves unconscious and dying intensive care patients whose organs become available for transplant after life-sustaining treatments are withdrawn, usually on grounds of futility. The shortfall in organs from heart-beating organ donation (HBD) following brain death has prompted a surge of interest in NHBD. In a recent editorial, the British Medical Journal described NHBD as representing “a challenge which the medical profession has to take up.”

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1. In U.S. nomenclature, Donation after Cardiac Death (DCD) programs.

2. In U.S. nomenclature, Donation after Brain Death (DBD) programs.

3. Bell MDD. Non-heart beating organ donation: Old procurement strategy—New ethical problems. Journal of Medical Ethics 2003;29(3):176–81; Steinbrook R. Organ donation after cardiac death. New England Journal of Medicine 2007;357(3):209–13; Bernat JL, D'Alessandro AM, Port FK, Bleck TP, Heard SO, Medina J, et al. Report of a National Conference on Donation after Cardiac Death. American Journal of Transplantation 2006;6:281–91.

4. White SA, Prasad KR. Liver transplantation from non-heart beating donors: A promising way to increase the supply of organs. British Medical Journal 2006;332:376–377 at p.377.

5. See note 3, Bell 2003 and Steinbrook 2007; Whetstine L, Bowman K, Hawryluck L. Pro/con ethics debate: Is nonheart-beating organ donation ethically acceptable? Critical Care 2002;6(3):192–5; Gardiner D, Riley B. Non-heart-beating organ donation—Solution or a step too far? Anaesthesia 2007;62:431–3; Robertson J. Delimiting the donor: The dead donor rule. Hastings Center Report 1999;29(6):6–14; Zamperetti N, Bellomo R, Ronco C. Defining death in non-heart beating organ donors. Journal of Medical Ethics 2003;29:182–5; Youngner SJ, Arnold RM. Ethical, psychological, and public policy implications of procuring organs from non-heart-beating cadaver donors. JAMA 1993;269(21):2769–74.

6. This article is primarily a critique of current U.K.-controlled NHBD practice. However, we also hope our discussion will be relevant to debates about NHBD in other jurisdictions.

7. See note 5, Youngner, Arnold 1993:2771; Judicial Council of the American Medical Association. Ethical guidelines for organ transplantation. JAMA 1968;205(6):341–2, at 342, point 3; Arnold RM, Youngner SJ. The dead donor rule: Should we stretch it, bend it, or abandon it? Kennedy Institute of Ethics Journal 1993;3(2):263–78.

8. The time period from when blood perfusion is inadequate to meet the tissue's needs to when the organ is perfused with cold fluids is known as the warm ischemic time. The time period from cold perfusion to transplantation into the recipient is known as cold ischemic time. See note 3, Bernat et al. 2006, for discussion of each of these.

9. See note 5, Youngner, Arnold 1993.

10. The current recommendations to diagnose death by cardiopulmonary grounds are a minimum of 2 minutes of pulselessness, as documented by an absent arterial line waveform, in the United States versus a minimum of 5 minutes of asystole, as documented by the absence of electrical activity by an electrocardiogram in the United Kingdom. See note 5, Gardiner, Riley 2007; see note 3, Bell 2003 and Bernat et al. 2006.

11. This is of considerable concern in potentially increasing the number of cases of Lazarus syndrome (autoresuscitation). Theoretically, it also might mean that brain function is reestablished. These possibilities in turn place significant pressure on the idea that these patients are dead by either brain or cardiac death criteria, which refer to the irreversible loss of function of these organs.

12. See note 3, Bell 2003; see note 5, Gardiner, Riley 2007 and Whetstine et al. 2002.

13. See note 3, Bernat et al. 2006.

14. United Kingdom Intensive Care Society Working Group on Organ and Tissue Donation. Guidelines for Adult Organ and Tissue Donation. London: United Kingdom Intensive Care Society 2004:46–7; available at http://www.ics.ac.uk/icmprof/downloads/Organ%20&%20Tissue%20Donation.pdf (last accessed 20 May 2008).

15. One of the key principles of ethical donation practice as formulated in the original advice on this matter from the Judicial Council of the American Medical Association is that “A prospective organ transplant offers no justification for relaxation of the usual standards of medical care.” See note 7, Judicial Council of the American Medical Association 1968:342, point 2.

16. See note 5, Robertson 1999; see note 3, Steinbrook 2007 and Bernat et al. 2006.

17. Campbell CS. Harvesting the living? Separating “brain death” and organ transplantation. Kennedy Institute of Ethics Journal 2004;14(3):301–18, at p. 314; see note 7, Arnold, Younger 1993.

18. Perspective Roundtable on Organ Donation after Cardiac Death. New England Journal of Medicine; available at http://content.nejm.org/cgi/data/359/7/669/DC1/1. (last accessed 20 April 2009).

19. One of the authors (Gardiner) is an intensive care specialist and has heard this opinion expressed a number of times in conversation at NHBD conferences.

20. Fost N. Reconsidering the dead donor rule: Is it important that organ donors be dead? Kennedy Institute of Ethics Journal 2004;14(3):249–60; see note 5, Robertson 1999; Zamperetti N, Bellomo R, Defanti CA, Latronico N. Irreversible apnoeic coma 35 years later. Towards a more rigorous definition of brain death. Intensive Care Medicine 2004;30:1715–22; Truog RD. Is it time to abandon brain death? Hastings Center Report 1997;27(1):29–37; Truog RD, Robinson WM. Role of brain death and the dead-donor rule in the ethics of organ transplantation. Critical Care Medicine 2003;31(9):2391–6; Youngner SJ, Arnold RM. Philosophical debates about the definition of death: Who cares? The Journal of Medicine and Philosophy 2001;26(5):527–37; see note 7, Arnold, Youngner 1993.

21. See note 5, Youngner, Arnold 1993 and Robertson 1999; see note 3, Bernat et al. 2006.

22. Human Tissue Authority. Code of Practice—Consent: Code 1. London: Human Tissue Authority; 2006; available at http://www.hta.gov.uk/_db/_documents/2006-07-04_Approved_by_Parliament_-_Code_of_Practice_1_-_Consent.pdf. (last accessed 20 May 2008); Human Tissue Authority. Code of Practice—Donation of Organs, Tissue and Cells for Transplantation: Code 2. London: Human Tissue Authority; 2006; available at http://www.hta.gov.uk/_db/_documents/2006-07-04_Approved_by_Parliament_-_Code_of_Practice_2_-_Donation_of_Solid_Organs_200607133233.pdf (last accessed 20 May 2008).

23. The move in the United Kingdom to secure “family lack of objection” rather than consent suggest that the United Kingdom is moving away from a concern for consent to donation even for HBD.

24. Gardiner D. An unethical marriageThe Human Tissue Act and the UK NHS Organ Donor Register. Journal of the Intensive Care Society 2007;8(2):42–3.

25. DeVita MA. Changing practice in NHBD. Paper presented at the Third International Meeting on Transplantation from Non-Heart-Beating Donors, London, 12 May 2006.

26. Sobel D. Full information accounts of well-being. Ethics 1994;104(4):784–810; Rosati C. Persons, perspectives, and full information accounts of the good. Ethics 1995;105(2):296–325; Arneson RJ. Human flourishing versus desire satisfaction. Social Philosophy and Policy 1999;16(1):113–42.

27. Veatch RM. Abandon the dead donor rule or change the definition of death. Kennedy Institute of Ethics Journal 2004;14(3):261–76.

28. Fischer JM. Introduction: Death, metaphysics, and morality. In: Fischer JM, ed. The Metaphysics of Death. Stanford, CA: Stanford University Press; 1993:3–30, at p. 13; Glover J. Causing Death and Saving Lives. London: Penguin Books; 1990:43–6.

29. A useful treatment of these questions is provided in Dagi TF, Kaufman R. Clarifying the discussion on brain death. Journal of Medicine and Philosophy 2001;26(5):503–25.

30. Singer P. Rethinking Life and Death. Melbourne: The Text Publishing Company; 1994:50–2.

31. See note 28, Glover 1990:156–8; Tooley M. Abortion and infanticide. In: Kuhse H, Singer P, eds. Bioethics: An Anthology. Malden, MA: Blackwell Publishing; 1999:21–35; Singer P. Practical Ethics, 2nd ed. Cambridge, U.K.: Cambridge University Press; 1999:181–4.

32. Singer P. Rethinking Life and Death. Melbourne: The Text Publishing Company; 1994:22–35; see note 27, Veatch 2004:267.

33. Harris J. The survival lottery. Philosophy 1975;50:81–7.

34. Maclean A. The Elimination of Morality: Reflections on Utilitarianism and Bioethics. London and New York: Routledge; 1993.

35. See note 17, Campbell 2004:312.

We thank Justin Oakley and Simon Keller for comments and discussion that have improved this paper over the course of its development and Nicole Kouros for her assistance with preparing the paper for publication.

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Cambridge Quarterly of Healthcare Ethics
  • ISSN: 0963-1801
  • EISSN: 1469-2147
  • URL: /core/journals/cambridge-quarterly-of-healthcare-ethics
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