Abstract
Although much has been written on the dead-donor rule (DDR) in the last twenty-five years, scant attention has been paid to how it should be formulated, what its rationale is, and why it was accepted. The DDR can be formulated in terms of either a Don’t Kill rule or a Death Requirement, the former being historically rooted in absolutist ethics and the latter in a prudential policy aimed at securing trust in the transplant enterprise. I contend that the moral core of the rule is the Don’t Kill rule, not the Death Requirement. This, I show, is how the DDR was understood by the transplanters of the 1960s, who sought to conform their practices to their ethics—unlike today’s critics of the DDR, who rethink their ethics in a question-begging fashion to accommodate their practices. A better discussion of the ethics of killing is needed to move the debate forward.
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Notes
Lest there be any confusion, the kind of absolutism I have in mind is the kind G.E.M. Anscombe described when she spoke of there being “certain things forbidden whatever consequences threaten” and “simply in virtue of their description as such-and-such identifiable kinds of action…” [1, p. 10] (emphasis original).
Robert Sade, e-mail message to author, October 26, 2015.
Or, as an anonymous reviewer suggests, they might even consider the particular organs harvested in this specialized context as technically non-vital.
One should not interpret the DDR so narrowly as to think that it only forbids killing by removing organs, but not killing for obtaining organs (pace Christian Coons and Noah Levin [6]). The fact that one could consent to be killed by the surgical removal of organs but not for the sake of their removal is simply irrelevant in the context of organ donation, the context to which the DDR applies (such a person is not a donor at all). In that context, no donor is indifferent to the good of having one’s organs harvested for the sake of helping others, and no transplant team is indifferent to the good of harvesting healthy organs for transplant.
This would also rule out procurement procedures that would leave individuals in a diminished state, even if they were not killed.
Levin is one of the few writers on this topic who notes the difference between the Death Requirement and the Don’t Kill rule, but he thinks that the Death Requirement is the “historically accurate” formulation despite conceding that “the origins of the DDR are unclear” [13, p. 2–3]. Both of these claims I contest below.
Some contend that the Don’t Kill rule is violated because withdrawing life support is what “causes death” not the underlying pathology [15, p. 2]. While this requires fuller treatment, my quick reply is that framing human action in terms of its causal activity or inactivity is a poor way to understand human action. Does a boy scout cause the death of his breathless and unconscious scout master (imagine some accident out on the trail) when he ceases to perform mouth-to-mouth resuscitation after an hour? The fact that the scout master could have lived longer had the scout not given up does not offer a sufficient understanding of what the scout does—certainly he does not kill him. It seems that there is at least a morally relevant distinction between being a cause of death (which may affect the timing of it) and being the cause of death (which is the source of the fatal sequence) [16]. This is not to say that someone’s death cannot be intended by withdrawing life support, but doing so does not require such an intention. For further treatment on this topic see Jensen [17].
This is also the source of the controversy over so-called donation-after-circulatory-death protocols.
According to critics of Paul Morrisey’s proposal: “Midline laparotomy and bilateral nephrectomy [the procedures that remove both kidneys] after the original brain injury is an additional iatrogenic (penetrating and blunt) trauma resulting in extracranial tissue injuries and potentially hastening or causing death. Surgery can induce post-operative cardiovascular instability secondary to blood loss, intraoperative fluid shifts, and intravascular hypovolemia. In the absence of optimal perioperative resuscitation, the final common pathway is an early onset of hypotension and cardiovascular collapse. The latter becomes the lethal pathophysiology and proximate cause of death upon WLS [withdrawing life support]” [18, p. 18].
This sort of thinking is captured well in DeVita and Snyder’s description of four cases in which donation-after-circulatory-death protocols were used [19]. They report that, in the effort to standardize these protocols, some transplant teams and procurement officials were concerned “that an overly liberal policy might result in a public outcry that would jeopardize the future of organ donation” [19, p. 136]. I take what they mean by an “overly liberal policy” to include removing vital organs from donors who have satisfied neither neurological nor circulatory criteria.
There is a question about the non-innocent—people on death row—which I leave aside, since such a practice depends on the validity of the death penalty, an issue that needs to be resolved before any “death-by-transplant-surgery” proposal can be evaluated.
Albert Jonsen is worth quoting: “To be more precise…, the ‘rule utilitarianism’ that combines respect for rule and principle with the goals of human and social thriving is the dominant ethos of bioethics at the level of public policy” [108, p. 44].
I take her language about “utilitarian” and “deontological” values to be indicative of a conflict between the standard bioethical principles of beneficence and respect for persons, not utilitarian or deontological ethics in a theoretical sense.
Paul Ramsey’s survey of how this updating process went about presents the best summary of the relevant issues and events under consideration at the time [30].
In fact, Daube, who fled Germany in 1933, did not spend time in a camp, though his father did [37]. Woodruff and de Wardener spent time in the notorious Changi camp in Singapore.
Guy Alexandre’s neurological criteria for death, which he used in nine separate occasions, included “(1) complete bilateral mydriasis; (2) complete absence of reflexes, both nature and in response to profound pain; (3) complete absence of spontaneous respiration, five minutes after mechanical respiration has been stopped; (4) falling blood pressure necessitating increasing amounts of vasopressive drugs…; (5) a flat EEG” (quoted in [40, p. 69]).
It seems that Schreiner was committed to the odd view that life is essentially bound up with the presence of a beating heart rather than the presence of adequate circulation.
Miller and Truog, who ardently believe physicians cause the death of their patients when they remove life support from them [15], are, in a sense, modern-day witnesses for the defense in the trial of Potter’s assailant.
Potter’s case was not unique. In May of 1968, Denton Cooley, a pioneering heart transplant surgeon from Texas, came under scrutiny after procuring a heart from a thirty-six-year-old welder named Clarence Nicks, who also suffered severe brain trauma from a brawl. The Harris County medical examiner worried that his autopsy investigation would be compromised if he were tasked with determining the cause of death in someone who no longer had a heart. While he eventually ruled that the cause of Nicks’ death was the massive brain injury, the legal definition of death was thought to be in conflict with the changing medical definition, providing the legal space for the defense to assert that it was Cooley, and not the brawlers, who were responsible for Nicks’ death [49, 50]. The conflict between medical examiners and transplanters came to a fever pitch when Stanford University’s Norman Shumway, another pioneering transplant surgeon, retrieved a heart from the body of a homicide victim without the examiner’s authorization. In this case, the defense attorneys succeeded in arguing that it was Shumway who killed the victim, rather than the victim’s assailant [51]. Similarly, in 1987, the assailant who shot Pamela James in the head had his murder charges dropped, since his defense attorney discovered in the coroner’s report that the time of James’ death coincided with the time that the transplant team removed her heart. To bolster his case, the defense attorney enlisted the aid of a neuropathologist, who determined James’ brain injury was of a “lower-grade” and did not preclude a chance at recovery. Since James was denied the chance of recovering, his client was not responsible for her death [52, 53]. In none of these cases was it ever suggested that homicide law should be changed to accommodate lethal surgery, since homicide law was relatively clear, while the definition of death was not. For better or for worse, two concepts of death were emerging, which had far-reaching implications for medical liability and organ transplantation: medical death, based on neurological or circulatory criteria, and legal death, based only on circulatory criteria. Doctors and lawyers struggled to articulate a unified definition of death that would adequately represent the physical facts, while serving the purposes of medicine and law (the best example comes from [54]).
To be sure, when pressed about whether one could consent by an advanced directive to donate one’s organs only if one was in a state of irreversible unconsciousness, Giertz replied, “I think it would be better if we were able to take organs from living persons while they are unconscious, but with their previous permission” (quoted in [40, p. 155]). Later, however, he qualified his claim, saying that he was thinking of the kidneys only, not organs like the heart. These remarks were in reference to a Stockholm case where a brain-damaged patient had a single kidney removed and then was taken off a respirator twenty-four hours later. As stated, his remarks are ambiguous, since they occur in the context of questions about the validity of Alexandre’s tests for brain death and whether brain-death is equivalent or not to death. There is no evidence to suggest that Geirtz had “higher-brain death” in mind, as though irreparable damage to one’s cerebrum were sufficient for death. In fact, Geirtz is aware of such an idea and deems it to be an unacceptable gerrymandering of death; he says such a view would leave the “biological and medical frame of reference” [60, p. 148]. Thus, it appears that he endorsed something like Morrisey’s previously mentioned protocol over Alexandre’s brain-death-based protocol because he did not agree with Alexandre that the brain-damaged patient was nothing more than “heart–lung preparations”—a description that originates from the dissection laboratory rather than the hospital bedside [61, p. 149].
Evidence for the view that the law against homicide is an artifact of the belief that life is sacred is found in the legal history outlined in the U.S. Supreme Court case Washington v. Glucksberg (1997), which ruled against the constitutionality of physician-assisted suicide.
Robert Veatch likewise rejects the soundness of this argument, though he accepts premise (2), and rejects premise (1), because in his view we can be considered dead if we irreversibly lose our “higher” brain capacities for conscious experience [83, 84]. Even the famed euthanasia advocate Rachels agrees, since in his view it is appropriate to fix “the time of death at the point at which consciousness is no longer possible” [73, p. 43]. Still others defend the idea that brain death is equivalent to death and that we should comply with the DDR [71, 85].
The idea that there might be a deeper concern about what those symbols signify and whether to have an interest in transplantation is to have an interest in a lethal enterprise is not seriously considered.
Other critics deny premise (1): Tom Tomlinson [95] and John Robertson [8] think the concept of irreversibility can be satisfied if the donor’s do-not-resuscitate order within its scope, which would make any attempt to revive the donor after asystole impermissible. In this view, the modality of impermissibility is thought to be strong enough to satisfy the irreversibility condition even if there is a patient in the next room who is in the same physical condition as the donor but wants to be and is able to be revived. Still, others appeal to higher-brain criteria that render premise (1) false [90].
It should be noted that I think neither the case for equating withdrawing life support with killing nor the case against declaring death on the basis of total brain failure succeeds at all (see [17, 102,103,104] for some recent scholarship on these issues). I am currently agnostic about our DCD protocols, however. Another paper for another time.
To be sure, how death is defined is crucial in that there is some support for donating organs when one criterion for “higher-brain” death is satisfied. Be that as it may, James DuBois and Emily Anderson report, “69% agreed that they would only allow donation after the patient was taken off the ventilator and his or her heart stopped beating, which would require use of a DCD protocol and reduce the number of procurable organs” [105, p. 69].
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Omelianchuk, A. How (not) to think of the ‘dead-donor’ rule. Theor Med Bioeth 39, 1–25 (2018). https://doi.org/10.1007/s11017-018-9432-5
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DOI: https://doi.org/10.1007/s11017-018-9432-5