Contemporary Transplantation Initiatives: Where's the Harm in Them?

Journal of Law, Medicine and Ethics

Volumn 24, Issue 2, 1996, Pages 139-149

  Price, David P T ^a  

^a DE MONTFORT UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ANALYTICAL APPROACH; ARTICLE; ATTITUDE TO DEATH; CADAVER; DEATH AND EUTHANASIA; DONOR; ETHICAL THEORY; HEALTH CARE AND PUBLIC HEALTH; HEART ARREST; HUMAN; INTERNATIONAL COOPERATION; LEGAL APPROACH; LEGAL ASPECT; MEDICAL ETHICS; PERSONAL AUTONOMY; PERSONHOOD; TRANSPLANTATION; UNITED KINGDOM; UNITED STATES;

ANALYTICAL APPROACH; DEATH AND EUTHANASIA; HEALTH CARE AND PUBLIC HEALTH; LEGAL APPROACH;

ATTITUDE TO DEATH; CADAVER; ETHICAL THEORY; ETHICS, MEDICAL; GREAT BRITAIN; HEART ARREST; HUMANS; INTERNATIONALITY; PERSONAL AUTONOMY; PERSONHOOD; TISSUE AND ORGAN PROCUREMENT; TISSUE DONORS; UNITED STATES;

EID: 0030159258     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.1996.tb01846.x     Document Type: Article

References (107)

1. As of June 7, 1995, 29,058 persons were on the kidney transplant waiting list in the United States, compared to 24,973 persons as of December 31, 1993. UNOS Correspondence, Data Request No. 061395-2, June 14, 1995. In the United Kingdom, the renal transplant waiting list has grown from 1,923 in 1980 to 5,000 as of June 30, 1995. United Kingdom Transplant Support and Services Authority, Transplant Updates.
2. See T. Feest et al., "Protocol for Increasing Organ Donation After Cerebrovascular Deaths in a District General Hospital," Lancet, 335 (1990): 1133-35. Adopting the protocol doubled the donation rate over nineteen months. See M. Salih et al., "Potential Availability of Cadaver Organs for Transplantation," British Medical Journal, 302 (1991): 1053-55. Worldwide estimates are that there are about forty potential candidates for EV per million. See A. Hibberd et al., "Potential for Cadaveric Organ Retrieval in New South Wales," British Medical Journal, 304 (1992): 1339-43.
3. See T. Feest et al., "Protocol for Increasing Organ Donation After Cerebrovascular Deaths in a District General Hospital," Lancet, 335 (1990): 1133-35. Adopting the protocol doubled the donation rate over nineteen months. See M. Salih et al., "Potential Availability of Cadaver Organs for Transplantation," British Medical Journal, 302 (1991): 1053-55. Worldwide estimates are that there are about forty potential candidates for EV per million. See A. Hibberd et al., "Potential for Cadaveric Organ Retrieval in New South Wales," British Medical Journal, 304 (1992): 1339-43.
4. See T. Feest et al., "Protocol for Increasing Organ Donation After Cerebrovascular Deaths in a District General Hospital," Lancet, 335 (1990): 1133-35. Adopting the protocol doubled the donation rate over nineteen months. See M. Salih et al., "Potential Availability of Cadaver Organs for Transplantation," British Medical Journal, 302 (1991): 1053-55. Worldwide estimates are that there are about forty potential candidates for EV per million. See A. Hibberd et al., "Potential for Cadaveric Organ Retrieval in New South Wales," British Medical Journal, 304 (1992): 1339-43.
5. Studies in the 1970s, by Starzl, Turcotte, Schweizer, Bankowski, Garcia-Rinaldi, Johnson, and others established the feasibility of preserving and using organs from NHBDs. See F.T. Rapaport, "Alternative Sources of Clinically Transplantable Vital Organs," Transplantation Proceedings, 25 (1993): 42-44.
6. In Maastricht, Holland, 20 percent more kidneys were procured by these means over a ten-year period. See G. Koostra et al., "Twenty Percent More Kidneys Through a Non-Heart-Beating Program," Transplantation Proceedings, 23 (1991): 910-11. In the United Kingdom, Leicester reported a 38 percent increase in donor organs as a consequence of implementing this strategy. Nathan estimates that implementation of Pittsburgh-style protocols could result in a 20 to 25 percent increase in donor organs. See M.A. De Vita et al., "History of Organ Donation by Patients with Cardiac Death," Kennedy Institute of Ethics Journal, 3 (1993): at 125.
7. In Maastricht, Holland, 20 percent more kidneys were procured by these means over a ten-year period. See G. Koostra et al., "Twenty Percent More Kidneys Through a Non-Heart-Beating Program," Transplantation Proceedings, 23 (1991): 910-11. In the United Kingdom, Leicester reported a 38 percent increase in donor organs as a consequence of implementing this strategy. Nathan estimates that implementation of Pittsburgh-style protocols could result in a 20 to 25 percent increase in donor organs. See M.A. De Vita et al., "History of Organ Donation by Patients with Cardiac Death," Kennedy Institute of Ethics Journal, 3 (1993): at 125.
8. The patient must be apneic and unresponsive, for at least two minutes, to one of three electrocardiographic criteria. See S.J. Youngner et al., "Ethical, Psychosocial, and Public Policy Implications of Procuring Organs from Non-Heart-Beating Cadaver Donors," JAMA, 269 (1993): at 2771. The Pittsburgh Protocol is set out in the Kennedy Institute of Ethics Journal, 3 (1993): A1-A15. A similar protocol has been in place at the King's College Hospital, Dulwich, England, since 1988. See A.O. Phillips et al., "Renal Grafts from Non-Heart Beating Donors," British Medical Journal, 308 (1994): 575-76.
9. The patient must be apneic and unresponsive, for at least two minutes, to one of three electrocardiographic criteria. See S.J. Youngner et al., "Ethical, Psychosocial, and Public Policy Implications of Procuring Organs from Non-Heart-Beating Cadaver Donors," JAMA, 269 (1993): at 2771. The Pittsburgh Protocol is set out in the Kennedy Institute of Ethics Journal, 3 (1993): A1-A15. A similar protocol has been in place at the King's College Hospital, Dulwich, England, since 1988. See A.O. Phillips et al., "Renal Grafts from Non-Heart Beating Donors," British Medical Journal, 308 (1994): 575-76.
10. The patient must be apneic and unresponsive, for at least two minutes, to one of three electrocardiographic criteria. See S.J. Youngner et al., "Ethical, Psychosocial, and Public Policy Implications of Procuring Organs from Non-Heart-Beating Cadaver Donors," JAMA, 269 (1993): at 2771. The Pittsburgh Protocol is set out in the Kennedy Institute of Ethics Journal, 3 (1993): A1-A15. A similar protocol has been in place at the King's College Hospital, Dulwich, England, since 1988. See A.O. Phillips et al., "Renal Grafts from Non-Heart Beating Donors," British Medical Journal, 308 (1994): 575-76.
11. Potential donors are those who have come off bypass during cardiothoracic surgery, intraoperative neurosurgical deaths, rapidly deteriorating intracerebral bleeds and subarachnoid hemorrhages, failed resuscitation in coronary care units, cardiac arrests on hospital wards, deaths in accident and emergency departments, or deaths from primary brain tumors in a hospice environment.
12. NHBDs initially became less popular because of concerns about the viability of organs from such donors. Even today, some of these organs fail to function and there is an increased incidence of acute tubular necrosis. NHBDs are still the main source of cadaver donors in countries such as Japan where the society is generally reluctant to accept fully the concept of brain death.
13. Acute Services Policy Unit, Identification of Potential Donors of Organs for Transplantation (Health Services Guidelines (84)1, 1994).
14. King's Fund Institute Report, A Question of Give and Take: Improving the Supply of Donor Organs for Transplantation (London: King's Fund Institute, Research Report 18, 1994): at 64.
15. Law Commission Report, Mental Incapacity (London: HMSO, Law Comm. No. 231, 1995): at para. 6.26. The commission also thought that EV is illegal in Great Britain.
16. Although some controversy arises over the issue, I do not intend to debate whether patients subjected to EV are truly dead, an issue which also recurs in debates about the application of the Pittsburgh Protocol, nor whether EV is unethical either because it constitutes an improper use of intensive care facilities (especially where such facilities are in short supply) or because of the risk that the practice itself will increase the risk of persons ending up in PVS.
17. British Medical Association, Medical Ethics Today: Its Practice and Philosophy (London: BMA, 1993): at 323. The British Transplantation Society, the ethical committee of the Royal College of Physicians, and the Royal College of Nursing have all expressed similar views.
18. M.A. De Vita et al., "Procuring Organs from a Non-Heart-Beating Cadaver: A Case Report," Kennedy Institute of Ethics Journal, 3 (1993): at 380.
19. J. Lynn, "Are the Patients Who Become Organ Donors under the Pittsburgh Protocol for 'Non-Heart-Beating Donors' Really Dead?," Kennedy Institute of Ethics Journal, 3 (1993): at 168.
20. Youngner et al., supra note 5, at 2770.
21. May has noted a "tinge of the inhuman in the humanitarianism of those who believe that the perception of social need easily overrides all other considerations." W. May, "Attitudes Towards the Newly Dead," Hastings Center Studies, 1, no. 2 (1973): at 5. While May is referring to the routine cutting up of corpses for organ removal, his remark has equal force in this analogous situation.
22. J. Feinberg, "The Mistreatment of the Dead," Hastings Center Reports, 15, no. 1 (1985): at 31. Sidney Callahan, by contrast, states that "[u]nlike Feinberg, I would be especially slow to label the moral sentiments or responses of others as squeamishness, or sentimentality, or irrationality," and he advocates an approach to ethical decision making involving a personal equilibrium in which emotion and reason are both activated and in accord. See S. Callahan, "The Role of Emotion in Ethical Decisionmaking," Hastings Center Reports, 18, no. 3 (1988): at 9, 14. It should be noted, though, that Feinberg also recognizes that harm can be caused (posthumously) to the now deceased by obstructing the fulfillment of certain interests.
23. J. Feinberg, "The Mistreatment of the Dead," Hastings Center Reports, 15, no. 1 (1985): at 31. Sidney Callahan, by contrast, states that "[u]nlike Feinberg, I would be especially slow to label the moral sentiments or responses of others as squeamishness, or sentimentality, or irrationality," and he advocates an approach to ethical decision making involving a personal equilibrium in which emotion and reason are both activated and in accord. See S. Callahan, "The Role of Emotion in Ethical Decisionmaking," Hastings Center Reports, 18, no. 3 (1988): at 9, 14. It should be noted, though, that Feinberg also recognizes that harm can be caused (posthumously) to the now deceased by obstructing the fulfillment of certain interests.
24. W. May, "Religious Justifications for Donating Body Parts," Hastings Center Reports, 15, no. 1 (1985): at 38.
25. Law Reform Commission Report, Procurement and Transfer of Human Tissues and Organs (Ottawa: Law Reform Comm., Working Paper 66, 1992): at 45.
26. W. Gaylin, "Harvesting the Dead," Harpers, 249 (1974): 23-28.
27. See F. Miedema, "Medical Treatment after Brain Death: A Case Report and Ethical Analysis," Journal of Clinical Ethics, 2, no. 1 (1991): 50-52.
28. It is reported that four babies have been born as a result of such a practice. See J. Mason and A. McCall Smith, Law and Medical Ethics (London: Butterworths, 4th ed., 1994): at 289.
29. See Law Reform Commission, supra note 19, at 114.
30. In Re F (Mental Patient: Sterilisation), [1990] 2 A.C. 1 (H.L.).
31. Airedale NHS Trust v. Bland, [1993] 1 All E.R. 821 (H.L.).
32. An alternative, "not against the interests" test, has been applied to nontherapeutic procedures performed on minors. See S v. S, [1970] 3 All E.R. 107 (H.L.). But with respect to adults, unlike children, no one is there to make the decision on their behalf or to be accountable for it. In fact, even in Bland, Lord Mustill had reservations about the best interests test as applied to PVS patients. See Airedale NHS Trust, All E.R. at 894 (stating that such individuals have "no best interests of any kind").
33. The Law Commission also generally approved the application of the best interests test in the context of medical procedures performed on the mentally incompetent. See Law Commission Report, supra note 10. It did consider that the test would not be appropriate for determining decisions relating either to elective ventilation or to the withdrawal of artificial nutrition or hydration. Id. at paras. 6.17-6.39, 6.24.
34. The High Court of Justice reached such a view in the case of a PVS patient in Re G, [1995] 3(1) Med. L Rev. 80. In Bland and Re F, the House of Lords specifically rejected the substituted judgment approach that is prevalent in the United States.
35. See Strunk v. Strunk, 445 S.W2d 145 (Ky. 1969) where the Kentucky Court of Appeals permitted an adult mentally incompetent twin to donate a kidney to his brother using a substituted judgment approach. The court found that, on balance, the procedure would do more (psychological) good than (physical) harm and would thus benefit the incompetent twin. Similarly, in cases like Hart v. Brown, 289 A.2d 386 (Conn. 1972), the Connecticut Superior Court permitted a twin to donate a kidney to his seven-year-old identical twin, utilizing a substituted judgment approach. That court found that benefit would accrue to the donating twin from the procedure. However, certain U.S. courts, for example, the Wisconsin Supreme Court, in In re Guardianship of Richard Pescinski, 226 N.W2d 180 (Wis. 1975), have denied a power to authorize such a procedure on the basis of substituted judgment.
36. See U.A.G.A. §§ 1, 3 U.L.A. (1987). The Uniform Anatomical Gift Act has been enacted in all fifty U.S. states.
37. Airedale NHS Trust v. Bland, [1993] 1 All E.R. 821, 882-83. This was the majority opinion (Lords Lowry and Goff concurring).
38. Law Reform Commission Report, supra note 19, at 173.
39. Bland, [1993] 1 All E.R. at 848.
40. Williams v. Williams (1882) Ch.D. 659. Greater rights generally exist in the United States for a deceased to direct the manner and place of his burial. See A. Sadler and B. Sadler, "Transplantation and the Law: The Need for Organized Sensitivity," Georgetown Law Journal, 57 (1968-69): at 5.
41. Williams v. Williams (1882) Ch.D. 659. Greater rights generally exist in the United States for a deceased to direct the manner and place of his burial. See A. Sadler and B. Sadler, "Transplantation and the Law: The Need for Organized Sensitivity," Georgetown Law Journal, 57 (1968-69): at 5.
42. Law of 13 June 1986, § 12. Austrian law states that organ removal may not result in "disfigurement of the cadaver that is incompatible with the dignity of the deceased." Bundesgesetzblatt für die Republik Österreich, June 1, 1982, § 62a(1).
43. S. White, "An End to D-I-Y Cremation?," Medicine, Science and the Law, 33 (1993): at 151.
44. For instance, in California it is an offense to mutilate a corpse. See Cal. Health & Safety Code, § 7052 (West Supp. 1988). In Pennsylvania, it is an offense to abuse a corpse. See 18 Pa. Con. Stat. Ann., § 5510 (Supp. 1990). Section 182(b) of the Canadian Criminal Code states that "[e]veryone who... improperly or indecently interferes with or offers any indignity to a dead human body or human remains... is guilty of an indictable offence." Canadian Criminal Code, 1892, 55 & 56 Vict., ch. 29 (Can.).
45. In Re A, [1992] 3 Med. L. Rev. 303.
46. Nuffield Council on Bioethics Report, Human Tissue: Ethical and Legal Issues (London: Nuffield Council, 1985): at 64.
47. D. Anaise et al., "An Approach to Organ Salvage from Non-Heartbeating Cadaver Donors under Existing Legal and Ethical Requirements for Transplantation," Transplantation, 49 (1990): at 293. See also People v. Bullington, 80 P.2d 1030 (Cal. Dist. Ct. App. 1938).
48. King's Fund Institute Report, supra note 9, at 66. Such procedures are not disfiguring and may not even result in any apparent change in the physical appearance of the corpse.
49. Department of Health, Cadaveric Organs for Transplantation (London: Dept. of Health, 1983): paras. 22, 26. Interestingly, this latter paragraph does not appear in the Australian Code, thus entirely reversing the effect of their guidelines on EV See National Health and Medical Research Council, An Australian Code of Practice for Transplantation of Cadaveric Organs and Tissues (Canberra: The Council, 1989): § 6. Resuscitation is always permissible where breathing has stopped; but it is not clear whether the person is brain dead or whether brain death will inevitably occur. In these cases, the intervention is intended to be therapeutic for the patient.
50. Department of Health, Cadaveric Organs for Transplantation (London: Dept. of Health, 1983): paras. 22, 26. Interestingly, this latter paragraph does not appear in the Australian Code, thus entirely reversing the effect of their guidelines on EV See National Health and Medical Research Council, An Australian Code of Practice for Transplantation of Cadaveric Organs and Tissues (Canberra: The Council, 1989): § 6. Resuscitation is always permissible where breathing has stopped; but it is not clear whether the person is brain dead or whether brain death will inevitably occur. In these cases, the intervention is intended to be therapeutic for the patient.
51. J. Harris, The Value of Life (London: Routledge, 1985): at 242.
52. Michael De Vita et al. have made similar remarks in respect of the Pittsburgh Protocol, arguing that "[n]either procedure harmed that patient, but clearly neither provided benefit to or was indicated for that patient." De Vita et al., supra note 13, at 378.
53. King's Fund Institute Report, supra note 9, at 65.
54. For example, Park et al., letter, "Organ Donation," British Medical Journal, 306 (1993): 145, in response to reports of EV practices.
55. P. Ramsey, The Patient as a Person (New Haven: Yale University Press, 1970): at 210.
56. H. Kuhse and P. Singer, "Prolonging Dying is the Same as Prolonging Living-One More Response to Long," Journal of Medical Ethics, 17 (1991): 205-06.
57. Speaking extrajudicially, in 1976, Lord Hailsham, the former Lord Chancellor, said that "[t]he law at the moment is perfectly plain: if you have got a living body, you have to keep it alive, if you can." See The Listener, July 8, 1976, at 15.
58. Airedale NHS Trust v. Bland, [1993] 1 All E.R. 821. See, for example, Lord Goff, id. at 870.
59. W. at 851.
60. Nancy B v. Hôtel Dieu de Québec, (1992) 86 D.L.R. (4th) 385 at 391.
61. Youngner, supra note 5, at 323.
62. May has commented that the complete identification of person with body "does not terminate abruptly with death." May, supra note 16, at 3. Kass graphically describes our instinc tive responses to the cadaver. He suggests that our instinctive response (which he considers sound) is to treat the mortal remains of the deceased person with respect. L. Kass, "Thinking about the Body," Hastings Center Reports, 15, no. 1 (1985): 20-30.
63. May has commented that the complete identification of person with body "does not terminate abruptly with death." May, supra note 16, at 3. Kass graphically describes our instinc tive responses to the cadaver. He suggests that our instinctive response (which he considers sound) is to treat the mortal remains of the deceased person with respect. L. Kass, "Thinking about the Body," Hastings Center Reports, 15, no. 1 (1985): 20-30.
64. Law Reform Commission Report, supra note 19, at 40.
65. As in the public dissection of William Burke, who was convicted and executed for murdering individuals whose bodies he sold to Scottish anatomists.
66. Adam Smith remarked that "[t]he idea of that dreary and endless melancholy which the fancy naturally ascribes to their condition... arises altogether from our lodging... our own living souls in their inanimated bodies, and thence conceiving what would be our emotions in this case." See D.D. Raphael and A.L. Macfie, eds., Adam Smith: Theory of Moral Sentiments (Oxford: Oxford University Press, 1976): at 13. This does not accurately encapsulate the nature of the harm inflicted.
67. E. Partridge, "Posthumous Interests and Posthumous Respect," Ethics, 91 (1981): at 243-44. See also B.B. Levenbook, "Harming Someone After His Death," Ethics, 94 (1984): 407-19.
68. E. Partridge, "Posthumous Interests and Posthumous Respect," Ethics, 91 (1981): at 243-44. See also B.B. Levenbook, "Harming Someone After His Death," Ethics, 94 (1984): 407-19.
69. Callahan argues that interests can survive a person's death but can only be carried on by living interest-bearers. See J. Callahan, "On Harming the Dead," Ethics, 97 (1987): 341-52.
70. B. Steinbock, Life Before Birth: The Moral and Legal Status of Embryos and Fetuses (New York: Oxford University Press, 1992): at 26. This view parallels that of George Pitcher, who stated that "if we allow our unfettered intuition to operate on certain examples, it becomes abundantly clear that we think the dead can indeed be wronged." See G. Pitcher, "The Misfortunes of the Dead," American Philosophical Quarterly, 21, no. 2 (1984): 183-88.
71. B. Steinbock, Life Before Birth: The Moral and Legal Status of Embryos and Fetuses (New York: Oxford University Press, 1992): at 26. This view parallels that of George Pitcher, who stated that "if we allow our unfettered intuition to operate on certain examples, it becomes abundantly clear that we think the dead can indeed be wronged." See G. Pitcher, "The Misfortunes of the Dead," American Philosophical Quarterly, 21, no. 2 (1984): 183-88.
72. However, he also argues that it is only antimortem not post-mortem persons who are capable of being harmed after the person has died.
73. See R. Belliotti, "Do Dead Human Beings Have Rights?," The Personalist, 60 (1979): 201-10. Feinberg also asserts that the dead are harmed whenever their interests are "set-back" in any way. See J. Feinberg, Harm to Others (Oxford: Oxford University Press, 1984): at 34.
74. See R. Belliotti, "Do Dead Human Beings Have Rights?," The Personalist, 60 (1979): 201-10. Feinberg also asserts that the dead are harmed whenever their interests are "set-back" in any way. See J. Feinberg, Harm to Others (Oxford: Oxford University Press, 1984): at 34.
75. R. Scott, The Body as Property (New York: Viking Press, 1981): at 260.
76. Law Reform Commission Report, supra note 19, at 45.
77. Id. at 114-15.
78. Feinberg, supra note 60, at 45.
79. See generally the British Medical Association, Code of Practice, Advance Statements about Medical Treatment (London: BMJ Publishing Group, 1995); Airedale NHS Trust v. Bland, [1993] 1 All E.R. 821; Re T (Adult: Refusal of Treatment), [1992] 4 All E.R. 649; and Re C (Adult: Refusal of Medical Treatment), [1994] 1 W.L.R. 290. In the United States, most states have living will statutes. See I. Kennedy and A. Grubb, Medical Law: Text with Materials (London: Butterworths, 2nd ed., 1994): at 1334-39; and Patient Self-Determination Act, 42 U.S.C. §§ 1395cc, 1396a (1994).
80. See generally the British Medical Association, Code of Practice, Advance Statements about Medical Treatment (London: BMJ Publishing Group, 1995); Airedale NHS Trust v. Bland, [1993] 1 All E.R. 821; Re T (Adult: Refusal of Treatment), [1992] 4 All E.R. 649; and Re C (Adult: Refusal of Medical Treatment), [1994] 1 W.L.R. 290. In the United States, most states have living will statutes. See I. Kennedy and A. Grubb, Medical Law: Text with Materials (London: Butterworths, 2nd ed., 1994): at 1334-39; and Patient Self-Determination Act, 42 U.S.C. §§ 1395cc, 1396a (1994).
81. See generally the British Medical Association, Code of Practice, Advance Statements about Medical Treatment (London: BMJ Publishing Group, 1995); Airedale NHS Trust v. Bland, [1993] 1 All E.R. 821; Re T (Adult: Refusal of Treatment), [1992] 4 All E.R. 649; and Re C (Adult: Refusal of Medical Treatment), [1994] 1 W.L.R. 290. In the United States, most states have living will statutes. See I. Kennedy and A. Grubb, Medical Law: Text with Materials (London: Butterworths, 2nd ed., 1994): at 1334-39; and Patient Self-Determination Act, 42 U.S.C. §§ 1395cc, 1396a (1994).
82. See generally the British Medical Association, Code of Practice, Advance Statements about Medical Treatment (London: BMJ Publishing Group, 1995); Airedale NHS Trust v. Bland, [1993] 1 All E.R. 821; Re T (Adult: Refusal of Treatment), [1992] 4 All E.R. 649; and Re C (Adult: Refusal of Medical Treatment), [1994] 1 W.L.R. 290. In the United States, most states have living will statutes. See I. Kennedy and A. Grubb, Medical Law: Text with Materials (London: Butterworths, 2nd ed., 1994): at 1334-39; and Patient Self-Determination Act, 42 U.S.C. §§ 1395cc, 1396a (1994).
83. See generally the British Medical Association, Code of Practice, Advance Statements about Medical Treatment (London: BMJ Publishing Group, 1995); Airedale NHS Trust v. Bland, [1993] 1 All E.R. 821; Re T (Adult: Refusal of Treatment), [1992] 4 All E.R. 649; and Re C (Adult: Refusal of Medical Treatment), [1994] 1 W.L.R. 290. In the United States, most states have living will statutes. See I. Kennedy and A. Grubb, Medical Law: Text with Materials (London: Butterworths, 2nd ed., 1994): at 1334-39; and Patient Self-Determination Act, 42 U.S.C. §§ 1395cc, 1396a (1994).
84. A. Buchanan, "Advance Directives and the Personal Identity Problem," Philosophy and Public Affairs, 17 (1988): at 278.
85. British Medical Association, supra note 12, at 28.
86. Royal College of Nursing, Review of the Legal, Ethical and Nursing Issues of Harvesting of Organs (London: RCN, Mar. 1993).
87. King's Fund Institute Report, supra note 9, at 66.
88. In England and the United States, relatively few persons complete and carry donor cards or other expressed authorization for organ donation. In the United Kingdom in 1992, approximately 27 percent of persons had donor cards, but only one in five persons actually carried one. See King's Fund Institute Report, supra note 9, at 66. This compares with a figure of 25 percent of persons found in 1987 to be carrying such cards/ authorizations at any one time in the United States. See R.W. Evans and D.L. Manninen, "US Public Opinion Concerning the Procurement and Distribution of Donor Organs," Transplantation Proceedings, 20 (1988): 781-85.
89. In England and the United States, relatively few persons complete and carry donor cards or other expressed authorization for organ donation. In the United Kingdom in 1992, approximately 27 percent of persons had donor cards, but only one in five persons actually carried one. See King's Fund Institute Report, supra note 9, at 66. This compares with a figure of 25 percent of persons found in 1987 to be carrying such cards/ authorizations at any one time in the United States. See R.W. Evans and D.L. Manninen, "US Public Opinion Concerning the Procurement and Distribution of Donor Organs," Transplantation Proceedings, 20 (1988): 781-85.
90. In the United Kingdom and the United States, existing relatives are always contacted prior to organ removal, although this is not legislatively mandated. In presumed consent systems, the wishes of relatives typically have a central place, subordinate only to the wishes of the deceased.
91. Department of Health, supra note 42, paras. 24, 32, 34.
92. Auckland Health Board v. Attorney-General, [1993] 1 N.Z.L.R. 235, 245.
93. Norman Cantor has stated that "[i]t is useful for every citizen to know that, in the event he or she is incompetent during the dying process, human dignity will be respected." See N. Cantor, "Conroy, Best Interests, and the Handling of Dying Patients," Rutgers Law Review, 37 (1985): at 570.
94. Steinbock, supra note 59, at 30.
95. Airedale NHS Trust v. Bland, [1993] 1 All E.R. 821, 853.
96. Nuffield Council on Bioethics Report, supra note 39, at 6.7-6.9.
97. King's Fund Institute Report, supra note 9, at 65. Commentators like Ivan Illich have linked the lack of dignity in contemporary notions of death and dying to the "medicalization" of death and the invasion of life by technology. See I. Illich, Medical Nemesis: The Exploration of Health (London: Calder & Boyars, 1975).
98. King's Fund Institute Report, supra note 9, at 65. Commentators like Ivan Illich have linked the lack of dignity in contemporary notions of death and dying to the "medicalization" of death and the invasion of life by technology. See I. Illich, Medical Nemesis: The Exploration of Health (London: Calder & Boyars, 1975).
99. T.N. Madan, "Dying with Dignity," Social Science and Medicine, 35 (1992): at 431.
100. See Harris, supra note 43, at 221-22.
101. J. Orlowski, G. Kanoti, and M. Mehlman, "The Ethical Dilemma of Permitting the Teaching and Perfecting of Resuscitation Techniques on Recently Expired Patients," Journal of Clinical Ethics, 1 (1990): at 203.
102. J. Hardwig, "Treating the Brain Dead for the Benefit of the Family," Journal of Clinical Ethics, 2 (1991): at 55.
103. Feinberg, supra note 60, at 93.
104. I largely ignore Derek Parfit's contentious assertions that the competent and incompetent individual are separate "persons." I argue, as does Buchanan, that in cases where the individual has suffered catastrophic neurological damage, no new, different person can exist even if the earlier "person" has ceased to exist. Buchanan, supra note 66, at 283.
105. The latter strategy is favored by Jean McHale. See J. McHale, "Elective Ventilation - Pragmatic Solution or Ethical Minefield?," Professional Negligence, 11, no. 1 (1995): at 25. In Great Britain, a new central computerized registry was set up in 1995; it might feasibly record individuals' wishes regarding EV.
106. The Leicester NHBD protocol was advertised in the local press (Leicester Mercury) without any adverse comment. See K. Varty et al., "Response to Organ Shortage: Kidney Retrieval Programme Using Non-Heart Beating Donors," British Medical Journal, 308 (1994): 575.
107. It would appear that, in the Netherlands, the implementation of such NHBD protocols without relatives' permission is unlawful because relatives' permission is required by law for any medical procedure carried out on a cadaver. See M. Booster et al., "In Situ Perfusion of Kidneys from Non-Heart Beating Donors: The Maastricht Protocol," Transplantation Proceedings, 25 (1993): 1503-04.