The thin flat line: Redefining who is legally dead in organ donation after cardiac death

Issues in Law and Medicine

Volumn 25, Issue 2, 2009, Pages 95-143

  Harrington, Maxine M ^a  

^a TEXAS WESLEYAN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; DEATH; DONOR; ETHICS; HEART ARREST; HUMAN; LEGAL ASPECT; TRANSPLANTATION; UNITED STATES;

DEATH; HEART ARREST; HUMANS; TISSUE AND ORGAN PROCUREMENT; TISSUE DONORS; UNITED STATES;

EID: 73449143856     PISSN: 87568160     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (453)

1. THE PRINCESS BRIDE (Twentieth Century-Fox Film Corporation 1987).
2. Cara Buckley, City Plans Ambulance for Donor Collections, N.Y. TIMES, June 1,2008, at A35.
3. Id.;
4. see also Rob Stein, N.Y. Planning Special Ambulance to Recover Organs, WASH. POST, May 24, 2008, at A01.
5. Buckley, supra note 2.
6. Stein, supra note 3, at A08.
7. William Saletan, Meat Wagons, SLATE, May 27, 2008, http://www.slate.com/logs/logs/humannature/archive/2008/05/27/meat-wagons.aspx.
8. Stein, supra note 3 (quoting Michael A. Grodin, director of bioethics at Boston University).
9. Id. (quoting Leslie M. Whetsine, a bioethicist at Walsh University).
10. Mark M.Boucek et al., Pediatric Heart Transplantation After Declaration of Cardiocirculatory Death, 359 NEW ENG. J. MED. 709, 711, 713 (2008). As an indication of the importance of this debate, The New England Journal of Medicine also featured three perspective reports, an editorial, and a videotaped roundtable discussion amongbioethicists, all of which are available on the journal's website at http://content.nejm.org/cgi/content/full/359/7/669/DC1 (last visited Dec. 19, 2008).
11. Boucek et al., supra note 9, at 711.
12. Id.
13. Boston University School of Public Health, George Annas, Biography, http://sph.bu.edu/index.php?option=com-sphdir&id=239&Itemid= 340&INDEX=577 (last visited Dec. 19, 2008).
14. Rob Stein, Infant Transplant Procedure Ignites Debate; Ethicists Question Strategy in Which Hearts Are Removed Minutes After They Stop Beating, WASH. POST, Aug. 14, 2008, at AO1 (quoting George J. Annas).
15. Id. (quoting Robert M. Veatch);
16. see also James L. Bernat, The Boundaries of Organ DonationAfter Circulatory Death, 359 NEW ENG. J. MED. 669, 671 (2008) (asserting that the protocol's shortened time period for determining death did not comply with prevailing medical standards).
17. See Eelco F.M. Wijdicks, The Diagnosis of Brain Death, 344 NEW ENG. J. MED. 1215, 1215-18 (2001) (describing the clinical criteria used to determine brain death, and noting that "brain death is the principle requisite for the donation of organs for transplantation").
18. Concerns have also been raised about the pre-mortem administration of drugs and preservation of organs in the dying or newly dead donor; see Sarah D. Barber, The Tell-Tale Heart: Ethical and Legal Implications of In Situ Organ Preservation in the Non-Heart-Beating Cadaver Donor, 6 HEALTH MATRIX 471, 473, 487-89 (1996);
19. see also infra note 111.
20. UNIF. DETERMINATION OF DEATH ACT § 1, 12 U.L.A. 589 (1980);
21. see also discussion infra Part III.
22. Alexander M. Capron, Brain Death - Well Settled Yet Still Unresolved, 344 NEW ENG. J. MED. 1244, 1245 (2001).
23. Robert Steinbrook, Organ Donation After Cardiac Death, 357NEW ENG. J. MED. 209, 209 (2007).
24. INST, OF MED., NON-HEART- BEATING ORGAN TRANSPLANTATION: PRACTICE AND PROTOCOLS 22 (2000), available at http://www.nap.edu/catalog. php?record-id=9700 [hereinafter 2000 IOM Report].
25. George J. Annas, Brain Death and Organ Donation: You Can Have One Without the Other, 18 HASTINGS CTR. REP. 28,28 (1988).
26. Robert D. Truog & Franklin Miller, The Dead Donor Rule and Organ Transplantation, 359 NEW ENG. J. MED. 674,674 (2008).
27. 2000 IOM Report, supra note 20 (noting that the "need to maintain organ viability creates a strong incentive for an early determination of death").
28. See James L. Bernat et al., Report of a National Conference on Donation After Cardiac Death, 6 AM. J. TRANSPLANTATION 281, 282 (2006) (stating that most organ procurement organizations use a five minute interval, while three use an interval of two minutes and one uses four minutes). Pediatric DCD is relatively new, and with two donors, Denver Children's Hospital waited only seventy-five seconds after death to begin organ retrieval.
29. See Boucek et al., supra note 9, at 711 and accompanying text
30. See Barber, supra note 16, at 471-72 (defining brain death);
31. see also infra notes 211-12 and accompanying text.
32. Rob Stein, New Trend in Organ Donation Raises Questions, WASH. POST, Mar. 18, 2007, at Ao3.
33. Id.
34. See Jesse McKinley, Surgeon Is Accused of Hurrying Death of Patient to Get Organs, N.Y. TIMES, Feb. 27, 2008, at A1 (reporting that transplant physician ordered excessive doses of morphine and Ativan and administered Betadine, a topical antiseptic, through a nasogastric tube). The physician was acquitted of all charges in December 2008, although the jury issued a note with its verdict stating that the case illustrated a need for clear standards in cardiac death donation.
35. Jesse McKinley, Surgeon Cleared of Harming Man to Rush Organ Removal, N.Y.TIMES, Dec. 19, 2008, at A20.
36. In 2006, DCD organs comprised eight percent of the total cadaveric organs transplanted. HEALTH RESOURCES AND SERVS. ADMIN., 2007 ANNUAL REPORTOFTHE U.S. ORGAN PROCUREMENT AND TRANSPLANTATION NETWORK AND THESCIENTIFICREGISTRY OF TRANSPLANT RECIPIENTS: TRANSPLANT DATA 1997-2006, Table 1.1 (2007), available at http://www.optn.org/AR2007/101-dh.pdf [hereinafter 2007 OPTN/SRTR Annual Report].
37. See infra notes 145-147 and accompanying text
38. Steinbrook, supra note 19, at 209-10.
39. Peter I. Abt et al., Donation After Cardiac Death in the US: History and Use, 203 J. AM. COLL. SURGEONS 208, 209 (2006).
40. Id.
41. Id.
42. Warm ischemia time refers to the time in which the heart and lungs are not functioning adequately to ensure the flow of blood to the organs. Without blood, oxygen cannot be delivered and vital organs will die. 2000 IOM Report, supra note 20, at xv.
43. Abt et al., supra note 32, at 212.
44. Id.
45. Id.
46. Id.
47. Id. at 213.
48. PRESIDENT'SCOMM. FOR THE STUDY OF ETHICAL PROBLEMSINMED. ANDBIOMEDICALAND BEHAVIORAL RESEARCH, DEFINING DEATH: A REPORT ON THE MEDICAL, LEGAL AND ETHICAL ISSUES IN THE DETERMINATION OF DEATH 23 (1981), available at http://www.bioethics.gov/ reports/past-commissions/defining-death.pdf [hereinafter DEFINING DEATH].
49. Id. (stating that there was a "new urgency" in the transplant community to recognize brain death).
50. See N.Y. City Health & Hosp. Corp. v. Sulsona, 367 N.Y.S.2d 686, 689 (Sup. Ct. 1975) (noting agreement of experts that kidneys obtained from donors who died from cardiopulmonary death resulted in an eighty-eight percent incidence of renal failure in the recipient, while kidneys from those who were brain dead were indistinguishable from those obtained from living donors).
51. See id. at 689-91 (addressing a petition for declaratory judgment that New York's definition of death included neurological death).
52. Id. at 689;
53. Lovato v. Dist. Court Tenth Judicial Dist., 601 P.2d 1072, 1076 (Colo. 1979).
54. See Sulsona, 367 N.Y.S.2d at 688 (noting that one of the reasons the petitioner sought court approval of a new definition of death was the fear of potential criminal or civil liability);
55. see also Alexander Morgan Capron & Leon R. Kass, A Statutory Definition of the Standards for Determining Human Death: An Appraisal and a Proposal, 121 U. PA. L. REV. 87,97-100 (1972) (discussing the need for a statutory definition of neurological death to allay professionals' fears of civil and criminal litigation).
56. Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death, A Definition of Irreversible Coma, 205 JAMA 85, 85 (1968) [hereinafter Ad Hoc Committee]. The report uses the terms irreversible coma and brain death coextensively.
57. Id. at 88. Later, the medical community would recognize that these diagnoses are not interchangeable.
58. See DEFINING DEATH, supra note 41, at 25.
59. Ad Hoc Committee, supra note 47, at 85.
60. Id.
61. Capron & Kass, supra note 46, at 108-09.
62. DEATH: BEYOND WHOLE-BRAIN CRITERIA 2 (Richard M. Zaner ed., 1988).
63. DEFINING DEATH, supra note 41, at 1,7-8;
64. see also supra at 24-25 (the Commission stated that it was also necessary to clarify the "misleading" term, irreversible coma, used by the Ad Hoc Committee in its 1968 report).
65. DEFINING DEATH, supra note 41.
66. UNIF. DETERMINATION OF DEATH ACT § 1, 12A U.L.A. 781 (2008).
67. DEFINING DEATH, supra note 41, at 7-8 (asserting that state variations in the definition of death are not acceptable).
68. See generally Jason L Goldsmith, Wanted! Dead and/or Alive: Choosing Among the Not-So-Uniform Statutory Definitions of Death, 61 U. MIAMI L. REV. 871, 889-90 (2007) (noting differences in the language of state law definitions of death).
69. See Abt et al., supra note 32, at 213-14 (noting that after the recognition of brain death, almost every transplant center stopped retrieving organs from DCD patients);
70. Michael A. DeVita, et al., Observations of Withdrawal of Life-Sustaining Treatment From Patients Who Became Non-Heart-Beating Organ Donors, 28 CRITICAL CARE MED. 1709,1709 (2000) (stating that non-heart-beating donation was largely abandoned when it was found that organs from brain-dead donors had better survival).
71. See Abt et al., supra note 32, at 214.
72. UNIF. ANATOMICAL GIFT ACT §§ 1-11 (amended 2006), 8A U.L.A. 27, 19 (Supp. 2008).
73. Id. §§4, 9.
74. Id. § 18.
75. Joseph B. Clamon, Tax Policy as a Lifeline: Encouraging Blood and Organ Donation Through Tax Credits, 17 ANNALS HEALTH L. 67, 76 (2008) (stating that the UAGA has been adopted in one of its forms by all fifty states).
76. National Organ Transplant Act, 42 U.S.C §§ 273-274g (2008).
77. Id. § 274(b)(2).
78. United Network for Organ Sharing: Organ Donation and Transplantation, History of the UNOS Database, http://www.unos.org/data/about/history.asp (last visited Dec. 18, 2008).
79. 42 U.S.C. § 273(b)(3).
80. Abt et al., supra note 32, at 214.
81. Id. at 208, 214.
82. Id. at 214.
83. See, e.g., J.E. Locke et al., Outcomes of Kidneys from Donors After Cardiac Death: Implications for Allocation and Preservation, 7 AM. J.TRANSPLANTATION 1797, 1803 (2007) (noting a sixty-eight percent reduction in the long-term mortality of transplanted patients over those on dialysis).
84. Mark D. Fox, Stewards of a Public Trust: Responsible Transplantation, 3 AM. J. BIOETHICS v, vi (2003).
85. Ellen Sheehy et al., Estimating the Number of Potential Organ Donors in the United States, 349 N. ENG. J. MED. 667, 673 (2003).
86. 2007 OPTN/SRTR Annual Report, supra note 29, at Table 1.1.
87. 2007 OPTN/SRTR Annual Report, supra note 29, at Chapter I (noting that some patients may be listed on multiple waiting lists, and the total number of registrations is higher than the number of unique patients);
88. id. (stating that thirty percent of those on the waiting list are deemed "inactive" because they are not immediately eligible for an organ if one becomes available);
89. see also Rob Stein, A Third of Patients on Transplant List Are Not Eligible, WASH. POST, Mar. 22, 2008, at A01 (questioning the reliability of the waiting list numbers).
90. 2007 OPTN/SRTR Annual Report, supra note 29, at Table 1.3.
91. See U.S. DEP'T OF HEALTH AND HUMAN SERVS. HEALTH RESOURCES & SERVS. ADMIN. OFFICE OF SPECIAL PROGRAMS, DIV. OF TRANSPLANTATION NO. 240-94-0037, THE ORGAN DONATION BREAKTHROUGH COLLABORATIVE: BEST PRACTICES FINAL REPORT (2003), available at http://www.njha.com/onit/pdf/930200530512PM71.pdf.
92. 42 C.F.R. § 482.45(a)(1) (2003).
93. Craig R. Smith & Jeffrey A. Lowell, Ethical Considerations in Organ Donation and Transplantation, 15 J. INTENSIVE CARE MED. 231, 235 (2000).
94. 2007 OPTN/SRTR Annual Report, supra note 29, at Table 1.1.
95. National Organ Transplant Act, 42 U.S.C § 274e (2008).
96. See generally Steve P. Calandrillo, Cash for Kidneys? Utilizing Incentives to End America's Organ Shortage, 13 GEO. MASON L. REV. 69,108-118 (2004) (summarizing financial initiatives to increase organ donation).
97. See generally Margaret A. Clark, This Little Piggy Went to Market: The Xenotransplantation and Xenozoonose Debate, 27 J. L. MED. & ETHICS 137, 138-145 (1999) (discussing the medical, ethical, and legal issues raised by xenotrasplantation).
98. Abt et al., supra note 32, at 214.
99. Id.
100. Id.
101. One critic has alleged that the terminology was changed from NHBD to DCD as a marketing ploy in the face of uncertainty in determining death. Mohammed Y. Rady et al., Non-Heart Beating, or Cardiac Death, Organ Donation: Why We Should Care, 2 J. HOSP. MED. 324, 328 (2007).
102. The Institute of Medicine has suggested that the terminology be further refined to donation after circulatory determination of death (DCDD). COMMITTEE ON INCREASING RATES OF ORGAN DONATION, ORGAN DONATION: OPPORTUNITIES FOR ACTION 128 (James F. Childress & Catharyn T. Liverman, eds., 2006), available at http://www.iom.edu/CMS/3740/24738/34249.aspx [hereinafter 2006 IOM Report].
103. Ad Hoc Committee, supra note 47, at 339.
104. In re Quinlan, 355 A.2d 647, 663 (N.J. 1976), cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976) (holding that a patient has a constitutional right of privacy to terminate life-sustaining treatment).
105. Cruzan v. Dir. Mo. Dep't of Health, 497 U.S. 261, 279 (1990) (assuming that a competent person has a constitutionally protected liberty interest in refusing life-sustaining medical treatment).
106. ROGER HERDMAN & JOHN T. POTTS, DIVISION OF HEALTH CARE SERVICES, INSTITUTE OF MEDICINE, NON-HEART- BEATING ORGAN TRANSPLANTATION MEDICAL AND ETHICAL ISSUES IN PROCUREMENT 24 (1997), available at http://www.nap.edu/catalog.php?record-id=6036 [hereinafter 1997 IOM Report].
107. Id. at 1. These categories are derived from the classification of non-heart-beating donors developed at the University Hospital Maastricht in the Netherlands.
108. Id. at 25. The Maastricht categories include: 1. Dead on arrival; 2. Unsuccessful resuscitation; 3. Awaiting cardiac arrest; and 4. Cardiac arrest while brain dead.
109. G. Koostra et al., Categories of Non-Heart-Beating Donors, 27 TRANSPLANTATION PROC. 2883,2883 (1995).
110. Category three is controlled; the other categories are uncontrolled. Id. at 2893-94.
111. A fifth uncontrolled donor category, unexpected cardiac arrest in a critically ill patient, was recently added. Dale Gardiner et al., Editorial, Non-Heart-Beating Donation - Solution or a Step Too Far? 62 ANESTHESIA 431, 431 (2007).
112. 1997 IOM Report, supra note 90, at 1.
113. Id.
114. Id. at 24.
115. Id. at 26.
116. DeVita et al., supra note 57, at 1710 (describing the process of organ procurement at the University of Pittsburg Medical Center).
117. Id.
118. 2000 IOM Report, supra note 20, at 21.
119. Id.
120. Id.
121. Id.
122. University of Pittsburgh Medical Center Policy and Procedure Manual, Subject: Management of Terminally Ill Patients Who May become Organ Donors After Death, reprinted in PROCURING ORGANS FOR TRANSPLANT, THE DEBATE OVER NON-HEART BEATING CADAVER PROTOCOLS, app. at 235 (Robert M.Arnold et al., eds., 1995) [hereinafter PROCURING ORGANS FOR TRANSPLANT].
123. Id. at 240. Clinical tests to confirm death included pulselessness, apnea, and electrocardiographic criteria.
124. Id.
125. 3 KENNEDY INST. ETHICS J. 103 (1993). The articles in this issue were later published in PROCURING ORGANS FOR TRANSPLANT, supra note 102.
126. Renee Fox, "An Ignoble Form of Cannibalism": Reflections on the Pittsburgh Protocol for Procuring Organs from Non-Heart-Beating Cadavers, in PROCURING ORGANS FOR TRANSPLANT, supra note 102, at 155,162.
127. George J. Agich, From Pittsburgh to Cleveland: NHBD Controversies and Bioethics, 8 CAMBRIDGE Q. HEALTHCARE ETHICS 269, 269 (1999).
128. Id.;
129. see also Gina Kolata, Controversy Erupts over Organ Removals, N.Y. TIMES, Apr. 13, 1997, at A28.
130. Agich, supra note 106, at 269.
131. Kolata, supra note 107.
132. James M. DuBois & Michael DeVita, Donation After Cardiac Death in the United States: How to Move Forward, 34 CRITICAL CARE MED. 3045, 3045 (2006) (stating that the Cleveland Clinic DCD protocol was never implemented).
133. 1997 IOM Report, supra note 90, App. A. In addition to the criteria for determining death, the IOM discussed ethical issues involving DCD policies and oversight, pre-and post-mortem medical interventions, conflicts of interest, and interaction with families.
134. Id. at 47-57, 61-63.
135. Id. at 8.
136. Id. at 10,27, Table 4.1A.
137. Id. at 31.
138. Id. at 14. At the end of 1996, there were 50,047 people on the transplantation waiting list.
139. Id. at 11. During the same year, there were 8,940 donors, of which 5,416 were dead donors and 3,524 were living donors.
140. Id. at 10.
141. Id. at 30.
142. Id. at 34-35.
143. Apnea is the absence of breathing. STEDMAN'S MED. DICTIONARY 118 (28th ed. 2006).
144. 1997 IOM Report, supra note 90, at 40.
145. Id.
146. Id. at 58;
147. see R. Schlumpf, et al., Transplantation of Kidneys from Non-Heart-Beating Donors: Protocol, Cardiac Death Diagnosis, and Results, 28 TRANSPLANTATION PROC. 107,107 (1996) (stating that protocol of University of Zurich Hospital is to wait ten minutes after the diagnosis of cardiac death before further organ retrieval procedures are implemented);
148. G. Koostra, Statement on Non-Heart-Beating Donor Programs, 27 TRANSPLANTATION PROC. 2965, 2965 (1995) (reporting that the first international workshop on non-heart-beating protocols reached consensus on a ten-minute interval after cardiac arrest to ensure the dead donor rule).
149. 1997 IOM Report, supra note 90, at 40-41.
150. Id. at 48.
151. Id. at 57.
152. Id.
153. Id. at 59, 61.
154. Id. at 59.
155. Id. at 5, 50;
156. see also infra discussion Part IV.A.
157. 2000 IOM Report, supra note 20, at 9 (stating that less than three percent of donors were NHBDs and that there were only about a dozen active NHBD programs);
158. see also DeVita, et al., supra note 57, at 1711 (noting the lack of support for non-heart-beating donation).
159. 2000 IOM Report, supra note 20, at 2.
160. Id. at 39.
161. Id.
162. Richard J. Howard, A 10-Year Analysis of Organ Donation After Cardiac Death in the United States, 80 TRANSPLANTATION 564, 565 (2005).
163. Bernat et al., supra note 24, at 281.
164. Id. at 287.
165. Asystole is defined as the absence of heart contractions. STEDMAN'S MED. DICTIONARY, supra note 118, at 172.
166. Bernat et al., supra note 24, at 282.
167. Id.
168. 2006 IOM Report, supra note 86, at 136.
169. Id. at 144.
170. See M. Susan Mandell et al., National Evaluation of Healthcare Provider Attitudes Toward Organ Donation After Cardiac Death, 34 CRITICAL CARE MED. 2952, 2952 (2006).
171. Id. at 2955.
172. Id. The term euthanasia was not defined, and could mean either active or passive euthanasia.
173. Joint Commission Fact Sheets, Facts About Joint Commission Accreditation and Certification, http://www.jointcommission.org/AboutUs/ Fact-Sheets/facts-jc-acrr-cert.htm (last visited Dec. 19, 2008).
174. See Joint Comm'n of Accreditation of Healthcare Orgs., The Joint Commission Hospital Accreditation Program: Hospital Transplant Safety Standard TS.01.01.01, 2 (2008), available at http://www.jointcommission. org/NR/rdonlyres/E9943504-BFF5-42B1-9467-79FEC1D9BD66/o/HAP-TS.pdf. The provision was previously designated as a part of Standard LD 3.110.
175. See Joint Comm'n. on Accreditation of Healthcare Orgs., Approved: Revisions to Standard LD.3.110, 26 JOINT COMM'N PERSPS. 7 (2006), available at www.sharenj.org/hospital%20professionals/pdf/JCAHO%20Standard%C20LD%C203961,,10. pdf.
176. Joint Commission Hospital Accreditation Program: Hospital Transplant Safety Standard, supra note 145, at 2. The Joint Commission requirement for a hospital to justify a decision to forego a DCD policy became effective January 1,2008.
177. See Joint Commission, Approved: Revisions to Standard LD.3.110, Element of Performance 12, for Critical Access Hospitals and Hospitals, 27 JOINT COMM'S PERSPS. 6, 14 (2007).
178. United Network for Organ Sharing, Model Elements for Controlled DCD Recovery Protocols, UNOS Bylaws, app. B, attachment III (2007), available at http://www.unos.org/policiesandBylaws2/bylaws/UNOSByLaws/pdfs/bylaw-145. pdf.
179. In 2006, a national initiative in Canada also recommended the adoption of DCD programs, using a five minute observation period before death could be declared. See Sam D. Shemie et al., National Recommendations for Donation After Cardiocirculatory Death in Canada, 175 CAN. MED. ASS'N J. S1, S6 (Supp. 2006).
180. Jerry Menikoff, Less Bull, Better Bioethics, 9 DEPAUL J. HEALTH CARE L. 1133,1146-47 (2005)
181. (reviewing ALBERT R. JONSEN, BIOETHICS BEYOND THE HEADLINES: WHO LIVES? WHO DIES? WHO DECIDES? (2005)).
182. See, e.g., Jerry Menikoff, The Importance Of Being Dead: Non-Heart-Beating Organ Donation, 18 ISSUES IN LAW & MED. 3 (2002);
183. James M. DuBois, Is Organ Procurement Causing the Death of Patients? 18 ISSUES IN LAW & MED. 21 (2002);
184. Jerry Menikoff, Doubts About Death: The Silence of the Institute of Medicine, 26 J. L. MED. & ETHICS 157 (1998).
185. Robert M. Arnold & Stuart J. Youngner, The Dead Donor Rule: Should We Stretch It, Bend It, or Abandon It? in PROCURING ORGANS FOR TRANSPLANT, supra note 102, at 220-21. Although John Robertson is credited with coining the term, it is not altogether clear when the dead donor rule originated.
186. Id. at 220. The idea that a donor has to been dead before vital organs are removed dates at least as far back as the late 1960s.
187. Id.
188. MD. CODE ANN., HEALTH-GEN. § 5-202(b)(2) (West 2005);
189. see also Ala. Code § 22-31-3(a) (LexisNexis 2006) ("When a part of a donor is proposed to be used for transplantation there shall be an independent confirmation of the death by another medical doctor licensed in Alabama.");
190. HAW. REV. STAT. ANN. § 327C-1(b) (LexisNexis 2008) ("Death shall be pronounced before any vital organ is removed for purposes of transplantation.");
191. LA. REV. STAT. ANN. § 9:111(A) (2008) ("In any case when organs are to be used in a transplant, then an additional physician, not a member of the transplant team, must make the pronouncement of death.");
192. N.M. STAT. ANN. § 12-2-4(0 (LexisNexis 2008) ("Death is to be pronounced before any vital organ is removed for purposes of transplantation⋯.").
193. UNIF. ANATOMICAL GIFT ACT, supra note 59, § 2(3).
194. Comments to the 1968 version of the UAGA state: Subsection (b) leaves the determination of the time of death to the attending or certifying physician. No attempt is made to define the uncertain point in time when life terminates. The point is not subject to clear cut definition and medical authorities are currently working toward a consensus on the matter. The real question is when have irreversible changes taken place that preclude return to normal brain activity and self sustaining bodily functions. UNIF. ANATOMICAL GIFT ACT (1968) § 7, 8A U.L.A. 147 (2003).
195. See Goldsmith, supra note 56, at 903.
196. DEFINING DEATH, supra note 41, at 76.
197. Id. at 76-77 (discussing the degree of brain damage necessary to meet irreversible cessation of functions).
198. 1997 IOM Report, supra note 90, at 61;
199. see also Stuart J. Youngner et al., When is "Dead"? 29 HASTINGS CTR. REP. 14, 16 (1999) (noting that controversy about the meaning of irreversibility has made it difficult to achieve consensus about the timing of death in DCD).
200. 1997 IOM Report, supra note 90, at 57.
201. Id.
202. See, e.g., Youngner et al., supra note 158, at 16 (stating that although the term irreversible is used in both the law and clinical practice, its exact meaning is unclear);
203. E.T. Bartlett, Differences Between Death and Dying, 21 J. MED. ETHICS 270, 274 (1995) (contending that the meaning of irreversibility is unambiguous and means "not capable of being reversed or reversing.");
204. Tom Tomlinson, The Irreversibility of Death: Reply to Cole, 3 KENNEDY INST, OF ETHICS J., 157, 161 (1993) (asserting that irreversibility is tied to the setting in which it is used);
205. David J. Cole, The Reversibility of Death, 18 J. MED. ETHICS 26, 29 (1992) (arguing that the concept of irreversibility should be abandoned because it departs from conventional notions of death).
206. DEFINING DEATH, supra note 41, at 77 (recognizing that determiningthe time of death can be "troublesome").
207. Id. (noting that "death should be 'viewed not as process but as the event that separates the process of dying from the process of disintegration"').
208. James L. Bernat, A Defense of the Whole-Brain Concept of Death, 28 HASTINGS CTR. REP. 14, 15 (1998).
209. Id. at 16.
210. 2000 IOM Report supra, note 20, at 22;
211. see also 1997 IOM Report, supra note 90, at 58 (citing a lack of scientific certainty in defining the interval for irreversibility).
212. 2000 IOM Report, supra note 20, at 22-23.
213. DuBois, supra note 150, at 32.
214. See DeVita, supra note 57, at 1710 ("The empirical data are sparse but suggest that 2 mins, rather than 5 mins, may be sufficient to ensure irreversible cessation of cardiopulmonary function.");
215. Youngner et al., supra note 158, at 15 (concluding that the data cited by the IOM on autoresuscitation are "seriously flawed" and "provided the weakest possible evidence for a recommendation");
216. Rady et al., supra note 86, at 325 (suggesting the true incidence of autoresuscitation is unknown because of underreporting).
217. 2000 IOM Report, supra note 20, at 22-23.
218. 1997 IOM Report, supra note 90, at 59 (stating there was a need to collect data to conduct the appropriate interval).
219. 2000 IOM Report, supra note 20, at 24 (noting that the studies it recommended had not been undertaken);
220. see also Bernat et al., supra note 24, at 282 (stating in 2005 consensus conference report that studies on the minimum period of observation necessary to rule out resuscitation had not been conducted).
221. The possibility of spontaneous circulation is an issue with uncontrolled donors in whom resuscitation has been attempted, however. See infra note 264 and accompanyingtext.
222. See Joanne Lynn, Are the Patients Who Become Organ Donors Under the Pittsburgh Protocol for "Non-Heart-Beating Donors" Really Dead? in PROCURING ORGANS FOR TRANSPLANT, supra note 102, at 98-99 (stating that the two-minute waiting period in the Pittsburg protocol may not be wrong, but it is a departure from conventional notions of irreversibility).
223. 2000 IOM Report, supra note 20, at 24.
224. Id.
225. See infra notes 212, 213 and accompanying text.
226. OKLA. STAT. ANN. tit. 63, § 3122(2) (West 2004).
227. A person shall be medically and legally dead if there is: the absence of spontaneous respiratory and spontaneous cardiac functions and, because of the disease or condition which directly or indirectly caused these functions to cease, or because of the passage oftime since these functions ceased, attempts at resuscitation would not, in the opinion of such physician, be successful in restoring spontaneous life-sustaining functions, and, in such event, death shall be deemed to have occurred at the time these functions ceased. VA. CODE ANN. § 54.1-2972(A)(1) (West 2005).
228. People v. Selwa, 543 N.W.2d 321, 322-23 (Mich. Ct. App. 1995).
229. Id. at 323 (citing expert testimony that the baby's Apgar scores at one, five and ten minutes following birth were zero, which meantthat the heart rate and respiratory effort were virtually nonexistent).
230. Id. The infant was removed from the respirator after a few hours and declared brain dead.
231. Id.
232. Id. at 324. The intentional or willful killing of an "unborn quick child" is, however, punishable as manslaughter. MICH. COMP. LAWS ANN. § 750.322 (West 2004).
233. Selwa, 543 N.W.2d at 323.
234. Id. at 325.
235. See id. at 328.
236. Id. at 328.
237. 883 P.2d 1084 (Idaho Ct. App. 1994).
238. Id. at 1085-86.
239. Id. at 1086.
240. Cyanosis is a dark bluish color of the skin due to a lack of oxygen. STEDMAN'S MED. DICTIONARY, supra note 118, at 475.
241. In re Johnson, 883 P.2d at 1086.
242. Id.
243. Id.
244. Id. at 1087 (emphasis supplied).
245. *1 (Conn. Super. Ct. Feb. 19, 2008) (unpublished).
246. Id.
247. *2.
248. See DuBois, supra note 150, at 32-33 (recommending that irreversibility be determined contextually).
249. See John Robertson, The Dead Donor Rule, HASTINGS CTR. REP., Nov.-Dec. 1999, at 6,12 ("[I]t is difficult to see why one should adopt a construal of irreversibility that ignores whether the patient could in fact legally or morally be resuscitated.");
250. see also Tomlinson, supra note 161, at 162 (concluding that, in a patient who has refused life-sustaining care, "medical means for reversing cardiopulmonary arrest are no longer ethically significant possibilities").
251. See Tomlinson, supra note 161, at 162-63 (distinguishing between the physiological and functional criteria for death).
252. See 2006 IOM Report, supra note 86, at 146 (concluding that the term "permanent" loss of function is a reasonable interpretation of irreversibility under the UDDA).
253. Bernat et al., supra note 24, at 282.
254. See Jerry Menikoff, Doubts About Death: The Silence of the Institute of Medicine, 26 J. L. MED. & ETHICS 157,158-61 (1999).
255. Id. at 158.
256. Bartlett, supra note 161, at 274.
257. Alexander Morgan Capron, The Bifurcated Legal Standard for Determining Death, in THE DEFINITION OF DEATH, CONTEMPORARY CONTROVERSIES 117, 133 (Stuart J. Youngner et al. eds., 1999).
258. Id.
259. See, e.g., David Gomez de Antonio et al., Results of Clinical Lung Transplant from Uncontrolled Non-Heart-Beating Donors, 26 J. HEART & LUNG TRANSPLANTATION 529, 533 (2007).
260. See Boucek et al., supra note 9, at 710. It is more accurate to say Denver Children's Hospital performed three modern DCD heart transplants. The first heart transplants performed by Christian Barnard in the late 1960s took place before the concept of brain death arose and it is not clear whether the patients satisfied brain death criteria.
261. See MARGARET LOCK, TWICE DEAD: ORGAN TRANSPLANTS AND THE REINVENTION OF DEATH 80, 87 (2002).
262. Robert M. Veatch, Donating Hearts After Cardiac Death - Reversing the Irreversible, 359 NEW ENG. J. MED. 672, 673 (2008).
263. See DEFINING DEATH, supra note 41, at 17 (recognizing that a four to six minute loss of blood flow does not irreversibly damage the brainstem).
264. See also Lynn, supra note 174, at 99 (stating that "no one" would argue that the brain would cease functioning after only two minutes without oxygen).
265. See Lynn, supra note 174, at 99 (noting there would be a "legion" of examples of people surviving with intact brain function after cessation of the heartbeat for two minutes). In fact, one bioethicist has suggested that patients may not even be unconscious after only two minutes of asystole.
266. Robert M. Veatch, Consent for Perfusion and Other Dilemmas with Organ Procurement from Non-Heart Beating Donors, in PROCURING ORGANS FOR TRANSPLANT, supra note 102, at 198.
267. See DuBois, supra note 150, at 34 (noting that it would probably take ten to fifteen minutes after arrest for the brain to die);
268. see also DEFINING DEATH, supra note 41, at 16-17 ("If deprived of blood flow for at least 10-15 minutes, the brain, including the brainstem, will completely cease functioning.").
269. See Rady et al., supra note 86, at 327-28 (stating that patients resuscitated with extracorporeal perfusion are able to recover after much longer periods than two to five minutes of cardiorespiratory arrest);
270. see also infra notes 278-85 and accompanying text.
271. See Myron K. Weisfeldt & Lance B. Becker, Resuscitation After Cardiac Arrest, A 3-Phase Time-Sensitive Mode, 288 JAMA 3035, 3036 (2002) (stating that although survival rates are poor after ten minutes of cardiac arrest, it is unknown whether this is due to irreversible injury or the failure of current therapeutic approaches).
272. See 2000 IOM Report, supra note 20, at 24 (asserting that there is no basis for a requirement that death by cardiopulmonary criteria must be of sufficient duration to cause the loss of brain function).
273. Id.;
274. see also Bernat et al., supra note 24, at 281 (stating that the cardiopulmonary standard may be used when the donor can not meet brain death criteria).
275. Menikoff, supra note 204, at 162.
276. Id. at 160.
277. See Alexander Morgan Capron, The Report of the President's Commission on the Uniform Determination of Death Act, in DEATH: BEYOND WHOSE BRAIN CRITERIA, supra note 51, at 156.
278. See Capron & Kass, supra note 46, at 113-14.
279. Menikoff, supra note 204, at 159-60.
280. DEFINING DEATH, supra note 41, at 7.
281. Id. at 37.
282. Bernat, supra note 164, at 20.
283. Id.
284. Koostra et al., supra note 91, at 2893.
285. See Joseph F. Magliocca et al., Extracorporeal Support for Organ Donation After Cardiac Death Effectively Expands the Donor Pool, 58 J. TRAUMA 1095, 1096-97 (2005).
286. David Bracco et al., The Thin Line Between Life and Death, 33 INTENSIVE CARE MED. 751,751 (2007).
287. Magliocca et al., supra note 229, at 1096.
288. Carla DeJohn & Joseph B. Zwischenberger, Ethical Implications of Extracorporeal Interval Support for Organ Retrieval, 52 AM. SOC'Y ARTIFICIAL INTERNAL ORGANS J. 119,121 (2006);
289. see also Magliocca et al., supra note 229, at 1097.
290. Dale Gardiner et al., supra note 91, at 432-33.
291. Joanne Lynn & Ronald Cranford, The Persisting Perplexities in the Determination of Death, in, THE DENNITION OF DEATH CONTEMPORARY CONTROVERSIES, Supra note 207, at 106 (stating that restoring circulation after a determination of death is evidence of "confused thinking" and a misapplication of the criteria for irreversibility).
292. DeVita et al., supra note 57, at 1711.
293. Michael DeVita is a professor at the University of Pittsburgh School of Medicine. Id. at 1709.
294. See also Christopher James Doig & Graham Rocker, Retrieving Organs from Non-Heart-Beating Organ Donors: A Review of Medical and Legal Issues, 50 CAN. J. ANESTHESIA 1069, 1072 (2003) (suggesting that if circulatory functions and blood flow to the brain are restored, it is possible that patients could experience pain or even regain consciousness).
295. Joseph L. Verheijde et al., Recovery of Transplantable Organs After Cardiac or Circulatory Death: Transforming the Paradigm for the Ethics of Organ Donation, 2 PHILOSOPHY, ETHICS & HUMANITIES IN MED. 1, 3 (2007) (asserting that post-mortem technology to preserve organs results in the resuscitation of the heart and brain), available at http://www.peh-med.com/content/pdf/1747-5341-2-8.pdf.
296. See, e.g., Mary Bennett & Niranjan Kissoon, Is Cardiopulmonary Resuscitation Warranted in Children Who Suffer Cardiac Arrest Post Trauma? 23 PEDIATRIC EMERGENCY CARE 267, 271 (2007) (stating that the possibility of organ donation may be a reason to attempt a prolonged resuscitation);
297. see also 2006 IOM Report, supra note 86, at 158 ("[P]remature removal of mechanical support can be a major barrier to organ donation.").
298. Stein, supra note 3, at A01.
299. M.D.D. Bell, Non-Heart Beating Organ Donation: Old Procurement Strategy - New Ethical Problems, 29 J. MED. ETHICS 176, 179 (stating that the combination of cardiac massage and administration of oxygen after death "may be associated with some restoration of brain functions").
300. Verheijde et al., supra note 236, at 3. To assuage the concerns of medical personnel about post-mortem beating of the heart, some transplant centers use a thoracic aortic balloon or lidocaine to prevent reanimation of the heart during ECMO.
301. See DeJohn & Zwischenberger, supra note 232, at 121. Using a thoracic balloon will also prevent perfusion to the brain, thus avoiding the problem of brain resuscitation during ECMO. Bernat, supra note 14, at 671.
302. This is theoretical, of course, because once organs are removed and the patient dies, we cannot know whether the patient had any such experience. There is also a debate in the medical community about whether it is possible for patients to regain cognition or experience pain after only five minutes of absent blood flow. See Martha A. Q.Curley et al., Letters to the Editor, Organ Donation After Cardiac Death: Are We Willing to Abandon the Dead Donor Rule? The Author's Reply, 8 PEDIATRIC CRITICAL CARE MED. 507, 508 (2007) (stating that studies show patients' cognition and the ability to perceive pain are likely absent after five minutes of no cardiac output);
303. Doig & Rocker, supra note 235, at 1072 (questioning whether patients in DCD protocols could experience pain or regain consciousness when brain perfusion is restored by mechanical means).
304. This scenario is adapted from a similar hypothetical described in Youngner et al., supra note 158, at 17.
305. DEFINING DEATH, supra note 41, at 80. Neither does the UAGA purport to define death for purposes of organ transplantation.
306. Id. at 145.
307. See DuBois, supra note 150, at 33.
308. Kimmo Sainio. Are Non-Heart-Beating Donors Really Dead? 29 ANNALS MED. 473, 474 (1997) (noting that in an emergency room, a patient with unexpected asystole would not be declared dead after two minutes).
309. See infra note 263 and accompanying text.
310. Randies v. Ind. Patient's Comp. Fund, 860 N.E.2d 1212, 1226 (Ind. Ct. App. 2007).
311. See id. ("[I]t is the role of the medical professional to decide whether brain death or other cessation of cardiopulmonary function is present in accordance with current medical standards") (quoting 22 AM. JUR. 2D Death § 424);
312. see also UNIF. DETERMINATION OF DEATH ACT (1980), supra note 17, prefatory note ("Time of death is a fact to be determined with all others in each individual case, and may be resolved, when in doubt, upon expert testimony before the appropriate court.").
313. See In re T.A.C.P., 609 So. 2d 588, 595 (Fla. 1992) (finding that anencephalic infant who lacked higher brain functions could not be declared legally dead for purposes of organ donation).
314. See 2006 IOM Report, supra note 86, at 146 (asserting that evolving medical standards support the weak construal of irreversibility).
315. See discussion infra Part IV.A.
316. Stuart J. Youngner & Robert M. Arnold, Philosophical Debates About the Definition of Death: Who Cares? 26 J. MED. & PHIL. 527,531 (2001).
317. See Youngner et al., supra note 158, at 20 (arguing for uniformity among protocols to avoid public criticism).
318. LA. STATE UNIV. HEALTH SCI. CTR. - SHREVEPORT, ORGAN DONATION AFTER CARDIAC DEATH (DCD) PROTOCOL LOUISIANA ORGAN PROCUREMENT AGENCY (LOPA) 4 (2008), http://www.sh.lsuhsc.edu/policies/policy-manuals-via-ms-word/hospital- policy/h-5.7.1.pdf.
319. 1997 IOM Report, supra note 90, at 59.
320. 2000 IOM Report, supra note 20, at 39.
321. Controlled donors were the primary focus of the 1997 and 2000 IOM Reports and the 2005 consensus conference.
322. 2006 IOM Report, supra note 86, at 154 (citing an estimate of 335,000 deaths a year due to sudden cardiac arrest).
323. Akinlolu O. Ojo et al., Quantifying Organ Donation Rates by Donation Service Area, 5 AM. J.TRANSPLANTATION 958, 961 (2005).
324. 2006 IOM Report, supra note 86, at 156.
325. 1997 IOM Report, supra note 90, at 60.
326. See supra notes 4-5 and accompanying text.
327. 2005 American Heart Association Guidelines for Cardiopulmonary Resuscitation and Emergency Cardiovascular Care, Part 2: Ethical Issues, 112 CIRCULATION IV-6, IV-7 (2005), available at http://circ.ahajoumals.org/cgi/reprint/112/24-suppl/IV-6.
328. See Vedamurthy Adhiyaman et al., The Lazarus Phenomenon, J. ROYAL SOC. MED. 552, 552 (2007) (stating that there have been thirty-eight reported cases in the medical literature of delayed spontaneous return of circulation). The article also cited a number of media reports in which patients were declared dead, but were later found alive.
329. Id. at 555.
330. Id. at 553, Table 1;
331. see also Antti Kamarainen et al., Spontaneous Defibrillation After Cessation of Resuscitation in Out-Of-Hospital Cardiac Arrest: A Case of Lazarus Phenomenon, 75 RESUSCITATION 543,544 (2007) (describing the case of a man in a body bag who was observed breathing spontaneously fifteen minutes after resuscitation ended).
332. LOCK, supra note 210, at 54-55.
333. Id. at 55.
334. Id.
335. Id.
336. Id.
337. Id. (quoting RICHARD SELZER, RAISING THE DEAD 99 (1994)).
338. The true incidence of Lazarus phenomenon may be unknown because of underreporting. Adhiyaman et al., supra note 264, at 552;
339. see also Wolfgang H. Maleck et al., Unexpected Return of Spontaneous Circulation After Cessation of Resuscitation (Lazarus Phenomenon), 39 RESUSCITATION 125, 127 (1998) (suggesting that the true incidence of the phenomenon may be fairly high and that its underreporting is due to legal concerns).
340. The Lazarus phenomenon is by definition applicable to those who have previously been subjected to resuscitation efforts and, therefore, would not apply to controlled donors who have chosen to forego CPR. See Sam D. Shemie, Clarifying the Paradigm for the Ethics of Donation and Transplantation: Was "Dead" Really So Clear Before Organ Donation? 2 PHIL., ETHICS & HUMAN. IN MED. 1,4 (2007), available at http://www.peh-med.com/content/pdf/1747-5341-2-18. pdf.
341. Adhiyaman et al., supra note 264, at 555 (recommending that patients be passively monitored for at least ten minutes, if not longer, after the cessation of CPR);
342. Kamarainen et al., supra note 265, at 545 (advocating minimum of ten minutes of monitoring to rule out Lazarus phenomenon).
343. Constantine L. Athanasuleas et al., Sudden Cardiac Death: Directing the Scope of Resuscitation Towards the Heart and Brain, 70 RESUSCITATION 44, 45 (2006).
344. Id.
345. Id. at 45, 47.
346. The patients in the study had experienced periods of refractory cardiac arrest ranging from twenty minutes to one and one-half hours. Id. at 46-47.
347. Id. at 49 (stating that only two of the thirty-four patients had an adverse neurological outcome).
348. Id. at 45.
349. Bracco et al., supra note 230, at 751.
350. Id.
351. See Massimo Massetti et al., Back from Irreversibility: Extracorporeal Life Support for Prolonged Cardiac Arrest, 79 ANN. THORACIC SURGERY 178, 181 (2005) (demonstrating increased survival rates inpatients with refractory cardiac arrest who received extracorporeal support);
352. Weisfeldt & Becker, supra note 216, at 3037 (citing several studies showing an advantage in survival rates when controlled reperfusion or hypothermia are used).
353. Shemie, supra note 273, at 3.
354. See also Lynn & Cranford, supra note 234, at 109 (recommending a delay of at least ten minutes to avoid potential error in diagnosing death in individuals undergoing resuscitation).
355. Bracco et al., supra note 230, at 753.
356. DuBois, supra note 150, at 33;
357. see also Veatch, supra note 213, at 197 (suggesting the question of whether a patient is dead after two minutes of asystole may not be important in uncontrolled donors, but would "raise serious problems" in patients who suffer sudden cardiac arrest).
358. 1997 IOM Report, supra note 90, at 58.
359. See also Veatch, supra note 213, at 197-98 (recommending periods of pulselessness longer than two minutes to establish irreversibility).
360. 2006 IOM Report, supra note 86, at 152-53.
361. Ana I. Sanchez-Fructuoso et al., Victims of Cardiac Arrest Occurring Outside the Hospital: A Source of Transplantable Kidneys, 145 ANNALS INTERNAL MED. 157, 157 (2006). The clinic began its DCD program in 1989.
362. Id.
363. 2006 IOM Report, supra note 86, at 139.
364. Sanchez-Fructuoso et al., supra note 289, at 162. Organs other than kidneys may have poorer results.
365. Id. at 162-63.
366. Markus Weber et al., Kidney Transplantation from Donors Without a Heartbeat, 347 NEW ENG. J. MED. 248, 248, 255 (2002). From 1985 until 1995, the hospital initiated organ retrieval five minutes after cardiac arrest. Beginning in 1995, it instituted a ten minute waiting period.
367. Id. at 249;
368. see also Menikoff, supra note 204, at 162 (citing to studies that indicated a longer waiting period would not impair the usefulness of organs).
369. See Boucek et al., supra note 9, at 713, 714 (encouraging pediatric heart transplantation from DCD donors);
370. Amy L. Durall et al., Potential for Donation After Cardiac Death in a Children's Hospital, 119 PEDIATRICS 219, 221 (2007) (noting that the experience with DCD in pediatrics hospitals is "quite small");
371. Nikoleta S. Kolovos et al., Donation After Cardiac Death in Pediatric Critical Care, 8 PEDIATRIC CRITICAL CARE MED. 47,47 (2007) (stating that DCD may increase the number of pediatric organs for donation).
372. Margaret Ferguson & Jeannie Zuk, Organ Donation After Cardiac Death: A New Trend in Pediatrics, 37 J. PEDIATRIC GASTROENTEROLOGY & NUTRITION 219, 219 (2003).
373. The transplantation of hearts from three DCD donors by a team at Denver Children's Hospital raises questions not only about applying DCD protocols to children, but also whether hearts can ethically and legally be removed from adult or child DCD donors. See infra note 315 and accompanying text.
374. DeVita et al., supra note 49, at 1712.
375. 2005 American Heart Association Guidelines for Cardiopulmonary Resuscitation and Emergency Cardiovascular, Part 2: Ethical Issues, supra note 253, at IV-7 (noting that intact survival in children after prolonged resuscitation has been documented).
376. See, e.g., Joel E. Frader, Deconstructing Donation After Cardiac Death, 8 PEDIATRIC CRITICAL CARE MED. 76, 77 (2007) (stating that the pediatric community needs to study whether the risk of autoresuscitation varies with age).
377. Id.
378. Id.
379. See Bernat, supra note 14, at 670 (noting that conflicts are more of a concern where the potential donor is a child).
380. See, e.g., Martha A. Q. Curly, Pediatric Staff Perspectives on Organ Donation After Cardiac Death in Children, 8 PEDIATRIC CRITICAL CARE MED. 212, 216-18 (2007).
381. Id.
382. Id. at 217 (reporting that thirty-eight percent of survey participants favored basing the determination of death on the absence of brain activity, while sixty percent approved an average waiting period after cardiac cessation of five minutes and a range of two to ten minutes);
383. see also Frader, supra note 298, at 77 (calling for further research on DCD in pediatric hospitals).
384. See Joan McGregor et al., Do Donation After Cardiac Death Protocols Violate Criminal Homicide Statutes? 27 MED. & L. 241, 251 (2008) (contending that the removal of organs prior to brain death maybe the proximate cause of death);
385. Michael Potts, Truthfulness in Transplantation: Non-Heart Beating Organ Donation, 2 PHIL., ETHICS & HUMAN.IN MED. 1,2 (2007), available at http://www.peh-med.com/content/2/ 1/17 (calling for a ban on DCD because the donor is not dead until the organs are removed);
386. Veatch, supra note 211, at 673 (asserting that removing a heart from a DCD donor after seventy-five seconds is "ending a life by organ removal").
387. See Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278 (1990) (stating that a competent person's liberty interest in refusing treatment could be inferred from the Court's prior decisions).
388. See Vacco v. Quill, 521 U.S. 793, 807 (1997) ("This Court has also recognized, at least implicitly, the distinction between letting a patient die and making that patient die.").
389. Id. at 802-03.
390. Menikoff, supra note 150, at 162.
391. Id.
392. Id.;
393. see also James L. Bernat, Are Organ Donors After Cardiac Death Really Dead? 17 J. CLINICAL ETHICS 122, 127 (2006) (agreeing with Menikoff that organ donation does not hasten death in controlled donors).
394. Menikoff, supra note 150, at 162.
395. See discussion supra Part III.A.
396. 1997 IOM Report, supra note 90, at 49.
397. Veatch, supra note 211, at 673.
398. McGregor et al., supra note 305, at 250.
399. See id., at 251 (recommending a waiting time of fifteen to twenty minutes until brain death).
400. James M. DuBois, Non-Heart-Beating Organ Donation: A Defense of the Required Determination of Death, 27 J. L. MED. & ETHICS 126, 130 (1999).
401. See Rady et al., supra note 86, at 327 (recognizing that although donors who have preexisting neurological injuries may not have meaningful brain activity at the time of arrest, the same may not be true of potential donors who have intact brain function prior to arrest).
402. Id.
403. The California transplant surgeon who allegedly administered excessive and unnecessary medication is not being prosecuted for homicide, but for dependent adult abuse and prescribing a controlled substance without a medical purpose. McKinley, supra note 28, at A1.
404. See Norman Fost, Reconsidering the Dead Donor Rule: Is It Important that Organ Donors be Dead? 14 KENNEDY INST. ETHICS J. 249, 255 (2004) (arguing that prosecutors have tolerated "clearly illegal behavior" by physicians in sympathetic cases).
405. Id. at 254-56.
406. Laura A. Siminoff et al., Death and Organ Procurement: Public Belief and Attitudes, 14 KENNEDY INST. ETHICS J. 217, 228 (2004) (reporting that ninety-eight percent of study participants had heard of brain death, but that only one-third believed that brain-dead persons were legally dead. Of those who considered a brain-dead person alive, over sixty-six percent said they would donate organs).
407. Cara Buckley, City To Explore a Way To Add Organ Donors, N.Y. TIMES, June 1, 2008.
408. See Laura A. Siminoff et al., Factors Influencing Families' Consent for Donation of Solid Organs for Transplantation, 286 JAMA 71, 71 (2001) (citing studies showing that while more than seventy-five percent of people said they would donate their organs if asked, less than half of families actually agreed to donation after death).
409. See DuBois, supra note 318, at 132 (citing surveys showing that significant numbers of people fear their health care will be compromised if they agree to be organ donors).
410. Youngner & Arnold, supra note 252, at 533.
411. Robert D. Truog, Brain Death - Too Flawed to Endure, Too Ingrained to Abandon, 35 J. L. MED. & ETHICS 273, 278 (2007).
412. A person in a persistent vegetative state (PVS) is not brain dead under the UDDA because the person has not suffered whole brain death; PVS patients have brain stem functions. See Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 266 n.1 (describing the physiological state of Nancy Cruzan, who was in a PVS).
413. Truog, supra note 329, at 278.
414. Fost, supra note 322, at 250-51.
415. Robert M. Veatch, The Dead Donor Rule: True by Definition, 3 AM. J. BIOETHICS 10, 10-11 (2003).
416. Robert M. Veatch, Abandon the Dead Donor Rule or Change the Definition of Death, 14 KENNEDY INST. ETHICS J. 261, 269 (2004).
417. A number of states also codify the dead donor rule. See supra note 152.
418. Truog recognizes the legal difficulty in abandoning the dead donor rule, as it would mean that organ recovery is the cause of a patient's death. He counters that the transplant physician's actions could be ethically regarded as not constituting a homicide. Truog, supra note 329, at 279.
419. See In re T.A.C.P., 609 So. 2d 588, 592 (Fla. 1992) (refusing to declare an anencephalic infant dead for purposes of organ transplantation).
420. Bernat, supra note 164, at 20 (stating that at the time organs are procured under the Pittsburgh protocol, "death has not yet occurred").
421. Bernat, supra note 311, at 128-29.
422. Id. at 125, 128.
423. Id. at 124-25.
424. Id. at 124.
425. Id. at 127.
426. Id. at 128-29.
427. Ten years ago, Bernat took a much different position: "Accepting a circulatory formulation for death immediately throws into jeopardy the entire multiorgan transplantation program unless the dead donor rule is sacrificed." Bernat, supra note 164, at 22.
428. Robert D. Truog & Thomas I. Cochrane, The Truth About "Donation After Cardiac Death," 17 J. CLINICAL ETHICS 133, 136 (2006).
429. Id. at 133, 136 (stating that DCD is a misnomer because donors are "dying but not yet dead").
430. Id. at 136.
431. Verheijde et al., supra note 236, at 7.
432. This scenario is also adapted from a similar hypothetical described in Youngner et al., supra note 158, at 17.
433. The time of a non-donor's death could be of legal significance under some circumstances, however, such as whether a person survived another under the Uniform Simultaneous Death Act. UNIF. SIMULTANEOUS DEATH ACT §§ 2-4 (1993), 8B U.L.A. 147 (2001).
434. See Jerry Menikoff, The Importance of Being Dead: Non-Heart-Beating Organ, 18 ISSUES IN LAW & MED. 3, 6 (2002) (stating that until physicians wanted to remove organs from non-heart-beating donors, there was no rush to declare death and a person could be pronounced dead as long as an hour after the heart stopped beating).
435. See Bernat, supra note 311, at 127 (defending the timing of death in DCD donors because it is consistent with how death is usually determined in the non-donor).
436. Robertson, supra note 200, at 12.
437. See Bernat, supra note 14, at 671(stating that recovering hearts from DCD donors and determining death seventy-five seconds after heart stoppage exceed the boundaries of DCD);
438. Veatch, supra note 211, at 673 (contending that the removal of hearts from DCD donors is the cause of death).
439. Arnold & Youngner, supra note 151, at 222 (arguing that the concept of brain death was an effort to "gerrymander" the definition of death to increase the donor pool).
440. Troug, supra note 329, at 278.
441. Truog & Cochrane, supra note 345, at 134.
442. Arnold & Youngner, supra note 151, at 224.
443. Bernat, supra note 311, at 129.
444. See Buckley, supra note 2.
445. See, e.g., William J. Burke, More Donors Could Be Survivors, ST. LOUIS REV. ONLINE, June 13, 2003, http://www.stlouisreview.com/article.php?id=4179 (asserting that DCD deprives some donors of a chance at survival and calling for a halt to the practice in Catholic hospitals).
446. Menikoff, supra note 204, at 162 (suggesting that a ten to fifteen minute wait might be appropriate).
447. DuBois, supra note 318, at 127.
448. Bernat, supra note 14, at 671.
449. LOCK, supra note 210, at 87-88.
450. See, e.g., Fost, supra note 322, at 254-56.
451. See Robert A. Burt, Where Do We Go From Here? in THE DEFINITION OF DEATH: CONTEMPORARY CONTROVERSIES 332, 333 (Stuart J. Younger et al., eds., 1999) (arguing that legislative changes may provoke public distrust of organ donation).
452. See Menikoff, supra note 351, at 20 (contending that the debate over the definition of death should not be sidestepped as it squarely addresses the kind of protections we are willing to give people in our society).
453. "Wanted, dead or alive" is a common phrase from the Old West, but it was also used in the title of an article about the UDDA. Goldsmith, supra note 56, at 871.