Ethical Issues on the Determination of Death
One problem intrinsic to the use of organs from a cadaver for transplant is that death must be determined before organs can be removed. The use of cadaver organs therefore raises the question of what criteria to adopt for the determination of death because cadaver organs must be removed speedily from neomorts before they are rendered useless for transplants. Problems of ethics and conflicts of interest arise when death is defined other than traditional death or when the definition is updated for transplant or other purposes. This brief analysis will show that while there are ethical problems, organs from cadaver donors can be accepted as justifiable in the general ethical discussions, provided certain ethical criteria are met.
Traditionally death was pronounced when cardiac and pulmonary activities have ceased. But modern medical technology has made it possible to continue the maintenance of normal cardiovascular and pulmonary functions of a body declared to be clinically dead. Such artificial maintenance creates a new class of dead, those who have irreversibly lost all brain functions but whose cellular tissue and organ functions continue with artificial supports. Because the same technology also sustains the bodily functions of critically ill patients, its use results in some confusing ambiguity about the traditional means for the determination of death. With modern medical technology blurring an important distinction between those who are dead, those who are dying and those recovering from lifesaving surgery or sever trauma - determining death with better criteria became an important task. There are several major reasons for this better criteria.
The development of organ transplantation is one. As more cadaver organs are procured and used, the determination of death takes on greater importance since successful transplants are possible only with viable and healthy organs. These organs are most viable when they are removed in the shortest possible time from neomorts. Transplant surgery therefore injects the element of time pressure into the situation.
The need to accord respect for the dead and their family is another. With current ability to maintain continued normal bodily functions for the dead, those involved in the care of critically-ill patients require a greater degree of certainty that patients are alive for the use of life support systems to be justified. Where patients are declared to be dead, appropriate measures may be taken to remove artificial life support systems so that the dead may be respectfully treated. A further incentive for refining the criteria for death is the need not only to reduce the uncertainty and suffering of grieving families, but also to release scarce and intensive care facilities for other patients who urgently need them.
In the effort to update the definition of death, there is universal acceptance for brain death criteria by medical authorities as well as in the laws of many countries. But these criteria do raise some emotional and ethical dilemmas for health care professionals. The sight of bodies being treated as if they were alive in order to maintain the viability of organs for transplantation is difficult to ignore emotionally even by those who understand and accept the concept and validity of the brain death criteria. The signs of life in the dead are just too real to be ignored.
Since one reason for updating death is the need to obtain viable organs from neomorts for transplantation, there are concerns about a double ethical standard for determining death. It is generally agreed that we do not want a double ethical standard - one for a possible donor and one for the unconscious patient with a head injury who is not considered as a possible donor. However, such concerns appear to be justified when the Harvard Ad Hoc Committee, in proposing four medical criteria for measuring what they took to be irreversible coma as the definition of death in 1968, stated that one of its reasons for redefining death is that
obsolete criteria for the definition of death can lead to controversy in obtaining organs for transplantation” (Ad Hoc Committee 1978, 11).
Strong criticisms were voiced for allowing the intrusion of the transplant interest into the criteria. Hans Jonas had strong suspicions that the transplant interest “was and is the major motivation behind the definitional effort” on grounds that Henry Beecher, chair of the Ad Hoc Committee at Harvard, had asked in a speech:
Can society afford to discard the tissues and organs of the hopelessly unconscious patient when they could be used to restore the otherwise hopelessly ill, but still salvageable individual? (Jonas 1978, 52)
For Jonas, the intrusion of the transplant interest somehow corrupts the scientific case of the criteria. If the charges of Jonas that the transplant interests “was and is the major motivation behind the definitional effort” are true, the practical consequences are bad news for critically ill and/or dying patients. In means that whenever the criteria are applied, it would be near impossible not to be influenced by then transplant interest since it is already built into the definition. However, there are other reasons for the Harvard criteria that serves to take the sting from Jonas’ charges. In its introduction, the Ad Hoc Committee stated that redefinition is needed because the “burden is great on patients who suffer permanent loss of intellect, on their families, on the hospitals, and on those in need of hospital beds already occupied by these comatose patients” (Ad Hoc Committee 1978, 11). For the committee, it is clear that redefinition is necessary in response to the ability of modern artificial life support systems to maintain the body systems of the genuinely dead. It is simply unfortunate that the Ad Hoc Committee’s criteria contain the transplant interest to fuel the suspicion that the updated criteria for the determination of death may be in fact a cover for more utilitarian purposes.
It is one thing to define the criteria for death, but it is quite another to define death for purposes of organ procurement for transplant. In the latter case, updating death merely serves a utilitarian purpose and is subject to the need for transplant organs. This would be ethically unacceptable since there would be little or no protection for the unconscious person if the organ requirements of transplantation are uppermost in the team of physicians determining death. If public confidence in transplantation programs is to be established, a high level of scrutiny must be exercised to ensure that the obvious benefits of updating the criteria for death do not dominate the formulation of those criteria, nor should they influence the thinking of those pronouncing death upon a patient (this is why all the Organ Procurement Organizations that address this issue on their websites state that those who pronounce the death of a patient have nothing to do with the organ procurement or transplant). This important ethical consideration led Paul Ramsey to insist that the definition of death should be distinguished from purposes of use in transplant so as to avoid conflict of interest.
If no person’s death should for this purpose be hasten, then the definition of death should not for this purpose be updated, or the procedures for stating that a man (sic) had died be revised as a means of affording easier access to organs (Ramsey 1970, 103)
There are legitimate public fears that a dying person would be less aggressively cared for if that person is perceived by doctors to be a potential source of organs. These fears can be laid to rest because all the laws and procedures I have surveyed so far have eliminated this possibility by separating the transplant team from the medical team determining death so as to avoid possible conflicts of interest. The President’s Commission also made this recommendation:
Any statutory ‘definition’ should be kept separate and distinct from provisions governing the donation of cadaver organs and from any legal rules on decisions to terminate life-sustaining treatment. (United States 1981, 1)
This approach seems to be the wisest course to safeguard the public as well as ease fears in the current climate of general public distrust of medical professionals.
Although the Ad Hoc Committee criteria was judged to be quite reliable by the President’s Commission, a major criticism was the misleading use of the term “irreversible coma.” It is now established that irreversible coma is not identical with brain death. A person can be in a state of irreversible coma and yet retain brain activity that shows on the electroencephalogram (EEG). Another criticism is that spinal cord reflexes persist or even return after brain functions have irreversibly ceased. A third criticism is that without consciousness the criteria of unreceptivity would not submit to testing in an unresponsive body (Ibid., 25).
To avoid confusion and misunderstanding about the determination of death the President’s Commission recommended the enactment by every state legislature of the Uniform Determination of Death Act (1980). Under this act, an individual is declared to be dead who has sustained either the irreversible cessation of circulatory and respiratory functions or the irreversible cessation of all functions of the entire brain, including the brain stem (3).