Abstract
The dead donor rule (DDR) originally stated that organ donors must not be killed by and for organ donation. Scholars later added the requirement that vital organs should not be procured before death. Some now argue that the DDR is breached in donation after circulatory determination of death (DCDD) programs. DCDD programs do not breach the original version of the DDR because vital organs are procured only after circulation has ceased permanently as a consequence of withdrawal of life-sustaining therapy. We hold that the original rendition of the DDR banning killing by and for organ donation is the fundamental norm that should be maintained in transplantation ethics. We propose separating the DDR from two other fundamental normative rules: the duties to prevent harm and to obtain informed consent.
Similar content being viewed by others
Notes
The reasoning of medicine is a practical one and not a moral one. The practical way physicians determine death is based on the permanent cessation of circulation, while the exact moment when irreversibility has been reached is not provable.
Some might wonder whether we are arguing that organ donation should be ethically permitted in all allowing to die cases. One could imagine that a physician, might, for instance, allow a patient to die without that patient’s permission for the express purpose of transplanting organs. We are not, however, arguing that allowing to die is sufficient to make organ transplanting ethically acceptable. As we stated above, allowing to die may [emphasis now added] be morally acceptable—under the proper conditions of consent, disproportionately burdensome treatment, etc. The proper formulation of the distinction between killing and allowing, for those who hold it, is that killing patients is always morally wrong, but that some cases of allowing to die are morally permissible (21). Cases in which patients are allowed to die without consent and with the intention of making them dead solely as a means to make their organs available for transplant are among the morally impermissible cases of allowing to die. One should not allow a patient to die for the sole purpose of making them organ donors any more than one ought to kill them for that purpose. It is fortunate that in most cases of DCDD the allowing to die that precedes it is ethically justifiable.
We posit here, for the sake of engaging this argument, that dead persons can be harmed. We are aware that posthumous harm is a controversial topic, but such debate is out of scope of our article.
Abbreviations
- DCDD:
-
Donation after circulatory determination of death
- DDR:
-
The dead donor rule
- W-LST:
-
Withdrawal of life-sustaining therapy
References
Anscombe, G.E.M. 1969. Intention. Ithaca: Cornell University Press.
Arnold, R., and S. Youngner. 1993. The dead donor rule: should we stretch it, bend it, or abandon it? Kennedy Institute of Ethics Journal 3 (2): 263–278.
Bernat, J.L. 2010. How the distinction between ‘irreversible’ and ‘permanent’ illuminates circulatory-respiratory death determination. Journal of Medicine and Philosophy 35: 242–255.
Bernat, J.L. 2013a. Controversies in defining and determining death in critical care. Nature Reviews Neurology. 9: 163–173.
Bernat, J.L. 2013b. On noncongruence between the concept and determination of death. Hastings Center Report 43 (6): 25–33.
Birch, S.C.M. 2013. The dead donor rule: A defense. Journal of Medicine and Philosophy 38: 426–440.
Bratman, M. 1987. Intention, plans, and practical reason. Cambridge: Harvard University Press.
Cavanaugh, T.A. 2006. Double effect reasoning, 183–190. New York: Oxford University Press.
Collins, M. 2010. Reevaluating the Dead Donor Rule. Journal of Medicine and Philosophy 35: 154–179.
Crippen, D. 2008. Donation after cardiac death: Perceptions versus reality. Journal of Intensive Care Medicine. 23 (5): 347–348.
Dalle Ave, A.L., and D.M. Shaw. 2016. Donation after circulatory determination of death: What information to whom. Bioethica Forum. 9 (1): 32–38.
Dalle Ave, A.L., and D.M. Shaw. 2017. Controlled donation after circulatory determination of death. Journal of Intensive Care Medicine 32 (3): 179–186.
Donagan, A. 1999. Choice: The essential element in human action. New York: Routledge and Kegan Paul.
Gardiner, D., and R. Sparrow. 2010. Not dead yet: Controlled non-heart-beating organ donation, consent and the dead donor rule. Cambridge Quarterly of Healthcare Ethics 19 (1): 17–26.
Jonsen, A.R., M. Siegler, and W.J. Winslade. 2015. Clinical ethics: A practical approach to ethical decisions in clinical medicine, 8th ed, 162. New York: McGraw-Hill.
Keown, J. 2002. Euthanasia, ethics, and public policy: An argument against legalization, 18–30. New York: Cambridge University Press.
Manara, A.R., P.G. Murphy, and G. O’ Callaghan. 2012. Donation after circulatory death. British. Journal of Anaesthesia 108 (S1): i108–i121.
Marquis, D. 2010. Are DCD donors dead? Hastings Center Report 40 (3): 24–31.
Menikoff, J. 2002. The importance of being dead: Non-heart-beating organ donation. Issues in Law and Medicine 18 (1): 3–20.
Miller, F.G., R.D. Truog, and D.W. Brock. 2010a. The dead donor rule: can it withstand critical scrutiny. Journal of Medicine and Philosophy 35: 299–312.
Miller, F.G., R.D. Truog, and D.W. Brock. 2010b. Moral fictions and medical ethics. Bioethics 24 (9): 453–460.
Morris v Brandenburg. 2016. Supreme Court of New Mexico No. S-1-SC-35478; 2016-NMSC-027; 356 P.3d 836.
Overby, K.J., M.S. Weinstein, and A. Fiester. 2015. Addressing consent issues in donation after circulatory determination of death. American Journal of Bioethics 1 (8): 3–9.
Pellegrino, E.D. 1989. Withholding and withdrawing treatments: Ethics at the bedside. Clinical Neurosurgery 35: 164–184.
Pellegrino, E.D. 1992. Doctors must not kill. Journal of Clinical Ethics 3 (2): 95–102.
President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. 1983. Deciding to forgo life-sustaining treatment: A report on the ethical, medical and legal issues in treatment decisions, 43–89. Washington, DC: US Government Printing Office.
Rachels, J. 1975. Active and passive euthanasia. New England Journal of Medicine 292: 78–80.
Rady, M.Y., J.L. Verheijde, and J. McGregor. 2008. Organ procurement after cardiocirculatory death: A critical analysis. Journal of Intensive Care Medicine. 23: 303–312.
Rady, M.Y., J.L. Verheijde, and J.L. McGregor. 2010. Scientific, legal, and ethical challenges of end-of-life procurement in emergency medicine. Resuscitation 81: 1069–1078.
Robertson, J. 1999. The dead donor Rule. Hastings Center Report 29 (6): 6–14.
Rodriguez-Arias, D., M.J. Smith, and N.M. Lazar. 2011. Donation after circulatory death: Burying the dead donor rule. The American Journal of Bioethics. 11 (8): 36–43.
Searle, J. 1983. Intentionality: An Essay in the Philosophy of Mind. New York: Cambridge University Press.
Shemie, S.D. 2007. Clarifying the paradigm for the ethics of donation and transplantation: was ‘dead’ really so clear before organ donation? Philosophy, Ethics, and Humanities in Medicine. 2: 18.
Shewmon, A. 2004. The dead donor rule: Lessons from linguistics. Kennedy Institute of Ethics Journal 14 (3): 277–300.
Snyder Sulmasy, L., and P.S. Mueller. 2017. Ethics, Professionalism and Human Rights Committee of the American College of Physicians. Ethics and the Legalization of Physician-Assisted Suicide: An American College of Physicians Position Paper. Annals of Internal Medicine 167: 576–578.
Sulmasy, D.P. 1998. Killing and allowing to die: Another look. Journal of Law, Medicine and Ethics 26: 55–64.
Sulmasy, D.P., and E.D. Pellegrino. 1999. The rule of double effect: Clearing up the double talk. Archives of Internal Medicine 159 (6): 545–550.
Sulmasy, D.P., and L. Snyder. 2010. Substituted interests and best judgments: an integrated model of surrogate decision making. JAMA 304: 1946–1947.
Truog, R.D., and F.G. Miller. 2008. The dead donor rule and organ transplantation. New England Journal of Medicine 359 (7): 674–675.
Uniform Determination of Death Act, 12 uniform laws annotated 589 (West 1993 and West suppl 1997).
Vacco v. Quill. 1997. 117 S.Ct. 2293.
Veatch, R.M. 2015. Killing by organ procurement: Brain-based death and legal fictions. Journal of Medicine and Philosophy 40: 289–311.
Verheijde, J.L., and M.Y. Rady. 2011. Justifying physician-assisted death in organ donation. The American Journal of Bioethics. 11 (8): 52–54.
Washington v. Glucksberg. 1997. 117 S.Ct. 2258.
Author information
Authors and Affiliations
Corresponding author
Ethics declarations
Conflict of interest
All authors declare that they have no conflict of interest.
Additional information
Publisher's Note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
The opinions expressed are the views of the 3 authors and do not reflect the policy of their related institutions, the Swiss Federal Office of Public Health, or any national organizations /associations.
Rights and permissions
About this article
Cite this article
Dalle Ave, A.L., Sulmasy, D.P. & Bernat, J.L. The ethical obligation of the dead donor rule. Med Health Care and Philos 23, 43–50 (2020). https://doi.org/10.1007/s11019-019-09904-8
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11019-019-09904-8