The importance of being dead: Non-heart-beating organ donation

Issues in Law and Medicine

Volumn 18, Issue 1, 2002, Pages 3-20

  Menikoff, Jerry ^a  

^a UNIVERSITY OF KANSAS SCHOOL OF MEDICINE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; ATTITUDE TO DEATH; BRAIN DEATH; CIRCULATION; CLASSIFICATION; DEATH; DEATH AND EUTHANASIA; HEART ARREST; HUMAN; LEGAL APPROACH; LEGAL ASPECT; MEDICAL ETHICS; MEDICOLEGAL ASPECT; PATHOPHYSIOLOGY; STANDARD; TIME; TRANSPLANTATION; UNITED STATES;

DEATH AND EUTHANASIA; LEGAL APPROACH;

ATTITUDE TO DEATH; BLOOD CIRCULATION; BRAIN DEATH; DEATH; ETHICS, MEDICAL; HEART ARREST; HUMANS; LEGISLATION, MEDICAL; TIME; TISSUE AND ORGAN PROCUREMENT; UNITED STATES;

EID: 0036596577     PISSN: 87568160     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (83)

1. Such organ donations are described as "cadaveric" donations, to distinguish them from organs that are donated while someone is still alive. Over a third of current organ donations come from living donors. See U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, REPORT TO CONGRESS ON THE SCIENTIFIC AND CLINICAL STATUS OF ORGAN TRANSPLANTATION 1 (1999). Such donors cannot, however, donate an organ that is necessary for maintaining life (a so-called unpaired "vital" organ), since, as discussed further herein, the physicians removing that organ would in most cases be committing homicide. Thus, among the organs donated by these living donors are a single kidney, a lung, or a portion of a liver. In contrast, a living donor would not be permitted to donate her heart.
2. See generally Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death, A Definition of Irreversible Coma, 205 JAMA 337 (1968).
3. See, e.g., In re Bowman, 617 P.2d 731 (Wash. 1980); INSTITUTE OF MEDICINE, NON-HEART-BEATING ORGAN TRANSPLANTATION: MEDICAL AND ETHICAL ISSUES IN PROCUREMENT 21 (1997) (hereinafter INST. MED. REP. I);
4. BARRY R. FURROW ET AL., HEALTH LAW 806-08 (2d ed. 2000);
5. JERRY MENIKOFF, LAWAND BIOETHICS: AN INTRODUCTION 443-55 (2001).
6. In those states in which a law has been enacted defining brain death, the law is usually some version of the Uniform Determination of Death Act, 12 U.L.A. 340(Supp. 1991) (hereinafter "UDDA"), which is discussed in detail later in this article. This Act is one of the many model laws drafted by the National Conference of Commissioners on Uniform State Laws, an independent organization that drafts a variety of model laws and then circulates these drafts to state legislatures and others with the hope that states will then adopt versions of such laws. In this way, state laws concerning particular topics may end up exhibiting a remarkable degree of similarity from state to state. Copies of all the model acts drafted by this organization, including the Uniform Determination of Death Act, can be found on the web at http://www.law.upenn.edu/bll/ulc/ulc_frame.htm (accessed on Oct. 4, 2001).
7. See, e.g., In re Bowman, 617 R2d 731 (Wash. 1980).
8. See, e.g., MARK A. HALL, ET AL., HEALTH CARE LAW AND ETHICS IN A NUTSHELL 279-82 (2d ed. 1999).
9. See INST. MED. REP. I, supra note 3, at 14-15. ("Today most deaths in the United States are determined by application of the traditional heart-lung definition of death.");
10. Prefatory Note to the UDDA, supra note 3, at §1 ("The overwhelming majority of cases will continue to be determined according to [the heart-lung] criteria."). See also FURROW, supra note 3, at 806.
11. See INST. MED. REP. I, supra note 3, at 14-15.
12. See id. at 14-15; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, supra note 1, at 2-3; Roger Herdman et al., The Institute of Medicine's Report on Non-Heart-Beating Organ Transplantation, 8 KENNEDY INST. ETHICS J. 83, 86-87 (1998).
13. UDDA, supra, note 3, at § 1. The relevant portion of this Act reads: "An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead." Clause (1) describes the heart-lung criteria for determining death, while clause (2) describes the criteria for determining "brain death." id.
14. See INST. MED. REP. I, UDDA, and FURROW, supra note 6.
15. Personnel involved in organ procurement at various institutions have informally told the author of instances in which these arguments have been prominently employed in encouraging them to adopt a non-heart-beating donor protocol at their institutions.
16. Indeed, recent evidence indicates that the bodies of brain dead persons can be kept alive for surprisingly long periods of time, leading to such (somewhat inaccurate) terminology as "chronic" or " persistent" brain death. See, e.g., D. Alan Shewmon, Chronic "Brain Death": Meta-analysis and Conceptual Consequences, 51 NEUROLOGY 1538 (1998).
17. See generally Ronald Cranford, Even the Dead Are Not Terminally III Anymore, 51 NEUROLOGY 1530 (1998).
18. See, e.g., INST. MED. REP. I, supra note 3, at 24.
19. See generally Yong W. Cho et al., Transplantation of Kidneys From Donors Whose Hearts Have Stopped Beating, 338 NEW ENG. J. MED. 221 (1998);
20. K.P. Platz et al., Influence of Warm Ischemia Time on Initial Graft Function in Human Liver Transplantation, 29 TRANSPLANTATION PROC. 3458 (1997);
21. Jeffrey T. Cope et al., Intravenous Phenylephrine Preconditioning of Cardiac Grafts from Non-Heart-Beaiing Donors, 63 ANN. THORACIC SURG. 1664 (1997).
22. See, e.g., INST. MED. REP. I, supra note 3, at 23-24.
23. See id. at 26 (describing "intense pressure" for having a "short interval to" declaring death).
24. More formally, if the patient were an in-patient in a hospital, then a "do not resuscitate" or DNR order should have been entered in the chart, consistent with that persons wishes. There are many reasons this might be the case. For example, that person might have determined that her current quality of life was not acceptable, and thus wished to be allowed to die under such circumstances.
25. "Unfortunately, no scientific studies allow a definite conclusion on how long this interval [from when the heart stops to when circulation has irreversibly ceased] might be. Protocols and practices in the United States and other countries vary significantly in defining this interval, which reflects the lack of scientific certainty." INST. MED. REP. I, supra note 3, at 58.
26. THe criteria for diagnosing brain death still generate a great deal of attention, as demonstrated by a recent article and accompanying editorial in the New England Journal of Medicine. See generally Alexander Morgan Capron, Brain Death: Well Settled Yet Still Unresolved, 344 NEW ENG. J. MED. 1244 (2001);
27. Eelco F.M. Wijdicks, The Diagnosis of Brain Death, 344 NEW ENG. J. MED. 1215 (2001).
28. A 1968 article surveyed fifty then-current textbooks on physical diagnosis, and found only one, published in 1926, which discussed how to diagnose death. SeeJ.D. Arnold et al., Public Attitudes and the Diagnosis of Death, 206 JAMA 1949,1951 (1968). This authors very informal survey of the books at my institutions library suggests things have not changed during the last 33 years. Indeed, the only book I found that had any significant discussion of this issue also included the following comment: "Edwin V. Mott, M.D., a resident on our service, called the authors' attention to the dearth of instructions on this subject in books on diagnosis."
29. E.L. DEGOWIN & R.L. DEGOWIN, BEDSIDE DIAGNOSTIC EXAMINATION 843 (4th ed. 1981).
30. See, e.g., KENNETH Y ISERSON, DEATH TO DUST: WHAT HAPPENS TO DEAD BODIES? 34-38 (1994).
31. See PRESIDENT'S COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, DEFINING DEATH, A REPORT ON THE MEDICAL, LEGAL AND ETHICAL ISSUES IN THE DETERMINATION OF DEATH 60 (1981) (hereinafter PRESIDENT'S COMM. REP.).
32. 410 U.S. 113, 157 (1973).
33. State v. Powell, 497 So. 2d 1188,1190 (Fla. 1986). Of course, through a variety of specific laws, such as the laws relating to inheritance, society may take cognizance of a dead person's pre-mortem wishes. As to the specific issue of what can be done with a dead body, in most states relatives of the deceased are considered to have what is commonly called a "quasi-property" interest in the corpse: they can control its disposition (including burial), but do not really "own" it or have any rights other than that narrow decisionmaking authority. But cf. Whaley v. County of Tuscola, 58 E3d 111 (6th Cir. 1995) (next of kin's rights relating to a deceased relative's body may raise due process claims under the Fourteenth Amendment to the U.S. Constitution).
34. For more on these complicated and still-evolving issues, see, e.g., Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. REV. 359 (2000).
35. See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992); Roe v. Wade, 410 U.S. 113 (1973).
36. PRESIDENT'S COMM. REF., supra note 21, at 77 (emphasis added).
37. Id.
38. See, e.g., David Orentlicher, The Alleged Distinction Between Euthanasia and the Withdrawal of life-Sustaining Treatment: Conceptually Incoherent and Impossible to Maintain, 1998 U. ILL. L. REV. 837, 849-850.
39. Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990).
40. Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S.793 (1997).
41. There is an exception to this in Oregon, which allows this to take place under certain circumstances. Oregon Death With Dignity Act, OR. REV. STAT. §§ 127.800-.897. Thus far, no other state has modified its laws to permit any form of physician-assisted suicide.
42. See, e.g., James Rachels, Active and Passive Euthanasia, 292 NEW ENG. J. MED. 79 (1975).
43. See Glucksberg and Quill, supra note 29.
44. Glucksberg, supra note 29, at 728-29, quoting from the majority opinion in Cruzan.
45. Id. at 729.
46. Id. at 731.
47. Id. at 732.
48. Id. at 732-35.
49. See, e.g., Roben M. Arnold & Stuart J. Youngner, The Dead Donor Rule: Should we Stretch It, Bend It, Or Abandon It? 3 KENNEDY INST. ETHICS J. 263 (1993).
50. If one further explores the reasoning behind this rule, one concludes that it is less protective than it might seem. Presumably the medical personnel can still undertrear the patient, and thus accelerate that patient's death (even if the patient wanted maximal life-sustaining care), in order to more quickly gain access to the organs. Nonetheless, many in the transplantation community believe that adhering to the dead donor rules does indeed instill at least some additional confidence in the public regarding the integrity of the organ donation process.
51. The situation I am referring to involves, as described earlier in the text, a person who had refused resuscitative measures (was "do not resuscitate" according to the persons own wishes), and was found pulseless and not breathing in a hospital bed. That person might immediately be declared dead by a passing physician. Had the patients heart stopped only seconds earlier, then in fact, under an appropriate interpretation of the relevant law, it is likely that the person should not be considered to have truly met the criteria for death for another several minutes (as discussed infra). In most cases, this premature pronouncement of death has little ethical or practical impact: if the declaration of death occurs a few minutes prematurely, then the only difference is the official time of the declaration of death. In either event, the body would be lying in the bed, with nothing being done to it differently in terms of attempting to revive the person.
52. Inst. Med. Rep. I, supra note 3, at 26.
53. See text at notes 27-37, supra.
54. See text at notes 38-39, supra.
55. INST. MED. REP. I, supra note 3, at 73.
56. See id. at 59-61.
57. Id. The Institute of Medicine Report did not cite specific evdence, but it noted that its adoption of the five-minute mark was "[b]ased on expert information and advice from its senior special experts." Id. at 59.
58. INSTITUTE OF MEDIQNE, NON-HEAKT-BEATING ORGAN TRANSPLANTATION: PRACTICES AND PROTOCOLS (2000).
59. The Institute of Medicine itself recognized this possibility, noting that "[w]ithdrawal of life support undoubtedly leads to cessation of circulatory function that, even if the possibility of spontaneous return of effective heartbeat is left aside, might sometimes be reversed if life support were restored or other resuscitative measures were initiated." INST. MED. REP. I, supra note 3, at 58.
60. See, e.g., Alexander Morgan Capron, The Bifurcated Legal Standard for Determining Death: Does it Work? in THE DEFINITION OF DEATH: CONTEMPORARY CONTROVERSIES 132-33 (Stuart J. Youngner et al., eds. 1999).
61. INST. MED. REP. I, supra note 3, at 58.
62. John T. Potts, Jr. et al., Commentary: Clear Thinking and Open Discussion Guide lOM's Report on Organ Donation, 26 J. L. MED. & ETHICS 166, 167 (1998).
63. The Institute of Medicine claimed only that there would be some degree of "irreversible brain damage" at the five-minute mark it recommended as the time for declaring death. In making this claim, it cited a paper that apparently demonstrated that following loss of blood circulation for periods of from five to twenty minutes, a brain would suffer "various degrees of permanent multifocal" damage. INST. MED. REP. I, supra note 3, at 59.
64. Id. at 58.
65. One proponent of non-heart-beating organ donation has argued in favor of recognizing a reversible "state of death." See James M. DuBois, Non-Heart-Beating Organ Donation: A Defense of the Required Determination of Death, 27 J. L. MED. & ETHICS 126, 130 (1999). Thus, for example, presumably the soul might have left the person's body, but the intervention of health care providers might lead to "reanimation" of the body and a return to life. However valid this concept might be from a philosophic or religious viewpoint, nothing in the applicable legal standard contemplates distinguishing "reversibly dead" people from "irreversibly dead" people. As noted previously, death occurs for legal purposes when the applicable conditions-in the case under discussion, cessation of heart and lung function-have irreversibly ceased. See text at note 9, supra.
66. See text at notes 27-37, supra.
67. The only possible current exception is in the State of Oregon, where certain types of active measures (in particular, providing a prescription for a lethal drug dose) are permitted. See Oregon Death With Dignity Act, supra note 30.
68. UDDA, supra note 3, at § 1.
69. See Jerry Menikoff, Doubts About Death: The Silence of the Institute of Medicine, 26 J. L. MED. & ETHICS 157 (1998).
70. See Alexander M. Capron & Leon R. Kass, A Statutory Definition of the Standards for Determining Human Death: An Appraisal and a Proposal, 121 U. PA. L. REV. 87 (1972).
71. The brain death clause of the UDDA is satisfied only when there is "irreversible cessation of all functions of the entire brain, including the brain stem." See UDDA, supra notes 9-10.
72. See comment, supra note 11.
73. W.H. Sweet, Brain Death, 299 NEW ENG. J. MED. 410, 410 (1978).
74. See text at notes 52-53, supra (acknowledgment by Institute of Medicine that portions of a person's brain may still not have been irreversibly destroyed at the time of declaration of death under its proposed standard).
75. See, e.g., John T. Potts, Jr., et al., supra note 51, at 166 (1998).
76. See text at notes 27-39, supra.
77. INST. MED. REP. I, supra note 3, at 51-53.
78. See, e.g., NEW YORK STATE TASK FORCE ON LIFE AND THE LAW, WHEN DEATH is SOUGHT: ASSISTED SUICIDE AND EUTHANASIA IN THE MEDICAL CONTEXT 163 (1994).
79. INST. MED. REP. I, supra note 3, at 51-52.
80. Id.
81. One possible qualification might be to note that unlike the person whose heart has already stopped beating, we cannot be so certain that the person will indeed be dead in a few minutes, and, lacking that certainty, the drug would indeed be producing a real harm. But in many situations, for example, a person who is known to be ventilator-dependent (due to neurological damage, for example), and who has requested that the machine be turned off, the patients forthcoming death is indeed quite certain, absent, in the Institute's own words, the "moral and legal wrong" that would take place if we failed to follow the patients command that the ventilator be turned off. Yet nothing in the Institute's analysis suggests it would permit the injection of a "harmful" dose of organ-preserving drugs even in this situation.
82. INST. MED. REP. I, supra note 3, at 51-52.
83. Not Quite Dead, 60 Minutes, CBS Television, Apr. 13, 1997.