Controversies about the diagnosis and meaning of brain death have existed as long as the concept itself. Here we review the historical development of brain death, and then evaluate the various attempts to justify the claim that patients who are diagnosed as brain dead can be considered dead for all legal and social purposes, and especially with regard to procuring their vital organs for transplantation. While we agree with most commentators that death should be defined as the loss of integration (...) of the functioning of the organism as a whole, we conclude that patients diagnosed as brain dead have not, in fact, lost this integrated functioning. We close with reflections on the implications of this conclusion generally and particularly with regard to organ transplantation, and briefly make reference to alternative approaches to justifying the procurement of transplantable organs that do not depend upon a flawed approach to the diagnosis of death. (shrink)

The Dead Donor Rule is intended to protect the public and patients, but it remains contentious. Here, I argue that we can abandon the Dead Donor Rule. Using Joel Feinberg’s account of harm, I argue that, in most cases, particularly when patients consent to being organ donors, death does not harm permanently unconscious (PUC) patients. In these cases, then, causing the death of PUC patients is not morally wrong. This undermines the strongest argument for the Dead Donor Rule—that doctors ought (...) not kill their patients. Thus, there is nothing wrong with abandoning the Dead Donor Rule with regard to PUC patients. Importantly, the harm-based argument defended here allows us to sidestep the thorny debate surrounding definitions of death. What matters is not when a patient dies but whether their death constitutes some further harm. (shrink)

Discrepancies between the Uniform Determination of Death Act (UDDA) and the adult and pediatric diagnostic guidelines for brain death (BD) (the “Guidelines”) have motivated proposals to revise the UDDA. A revision proposed by Lewis, Bonnie and Pope (the RUDDA), has received particular attention, the three novelties of which would be: (1) to specify the Guidelines as the legally recognized “medical standard,” (2) to exclude hypothalamic function from the category of “brain function,” and (3) to authorize physicians to conduct an apnea (...) test without consent and even over a proxy’s objection. One hundred seven experts in medicine, bioethics, philosophy, and law, spanning a wide variety of perspectives, have come together in agreement that while the UDDA needs revision, the RUDDA is not the way to do it. Specifically, (1) the Guidelines have a non-negligible risk of false-positive error, (2) hypothalamic function is more relevant to the organism as a whole than any brainstem reflex, and (3) the apnea test carries a risk of precipitating BD in a non-BD patient, provides no benefit to the patient, does not reliably accomplish its intended purpose, and is not even absolutely necessary for diagnosing BD according to the internal logic of the Guidelines; it should at the very least require informed consent, as do many procedures that are much more beneficial and less risky. Finally, objections to a neurologic criterion of death are not based only on religious belief or ignorance. People have a right to not have a concept of death that experts vigorously debate imposed upon them against their judgment and conscience; any revision of the UDDA should therefore contain an opt-out clause for those who accept only a circulatory-respiratory criterion. (shrink)

This issue of the Journal of Medicine and Philosophy brings together fresh essays addressing three main genres of questions: questions about the nature of bioethical inquiry and the relevance of the humanities to medical practice; questions regarding the ethics of organ donation; questions bearing on the application of fairness to the distribution of medical resources.

Respect for Autonomy has been a mainstay of medical ethics since its enshrinement as one of the four principles of biomedical ethics by Beauchamp and Childress’ in the late 1970s. This paper traces the development of this modern concept from Antiquity to the present day, paying attention to its Enlightenment origins in Kant and Rousseau. The rapid C20th developments of bioethics and RFA are then considered in the context of the post-war period and American socio-political thought. The validity and utility (...) of the RFA are discussed in light of this philosophical-historical account. It is concluded that it is not necessary to embrace an ethic of autonomy in order to guard patients from coercion or paternalism, and that, on the contrary, the dominance of autonomy threatens to undermine those very things which have helped doctors come to view and respect their patients as persons. (shrink)

Metaphysics often has an important role in deciding ethical questions. Specifically, in the realm of bioethics, metaphysical questions such as the nature of persons, diseases, and properties in general can be crucial to determining what is right or wrong. In this article, I tie together various metaphysical themes that recur throughout the rest of the issue: rationality as an element of human nature, ontological classifications, and kinds of action. I will explain that each has ethical implications. Actions that contravene reason (...) will be morally problematic, whereas our classification of illnesses will have important implications for how we ought to respond to ill persons. Metaphysical questions appear, or are at least suggested, in each article, pointing to the need for metaphysics in answering bioethical questions. (shrink)

This study examined health professionals’ (HPs) experience, beliefs and attitudes towards brain death (BD) and two types of donation after circulatory death (DCD)—controlled and uncontrolled DCD. Five hundred and eighty-seven HPs likely to be involved in the process of organ procurement were interviewed in 14 hospitals with transplant programs in France, Spain and the US. Three potential donation scenarios—BD, uncontrolled DCD and controlled DCD—were presented to study subjects during individual face-to-face interviews. Our study has two main findings: (1) In the (...) context of organ procurement, HPs believe that BD is a more reliable standard for determining death than circulatory death, and (2) While the vast majority of HPs consider it morally acceptable to retrieve organs from brain-dead donors, retrieving organs from DCD patients is much more controversial. We offer the following possible explanations. DCD introduces new conditions that deviate from standard medical practice, allow procurement of organs when donors’ loss of circulatory function could be reversed, and raises questions about “death” as a unified concept. Our results suggest that, for many HPs, these concerns seem related in part to the fact that a rigorous brain examination is neither clinically performed nor legally required in DCD. Their discomfort could also come from a belief that irreversible loss of circulatory function has not been adequately demonstrated. If DCD protocols are to achieve their full potential for increasing organ supply, the sources of HPs’ discomfort must be further identified and addressed. (shrink)

Despite continuing controversies regarding the vital status of both brain-dead donors and individuals who undergo donation after circulatory death (DCD), respecting the dead donor rule (DDR) remains the standard moral framework for organ procurement. The DDR increases organ supply without jeopardizing trust in transplantation systems, reassuring society that donors will not experience harm during organ procurement. While the assumption that individuals cannot be harmed once they are dead is reasonable in the case of brain-dead protocols, we argue that the DDR (...) is not an acceptable strategy to protect donors from harm in DCD protocols. We propose a threefold alternative to justify organ procurement practices: (1) ensuring that donors are sufficiently protected from harm; (2) ensuring that they are respected through informed consent; and (3) ensuring that society is fully informed of the inherently debatable nature of any criterion to declare death. (shrink)

Brain death or determination of death based on the neurological criterion has been an enduring source of controversy in academic and clinical circles. The controversy chiefly concerns how death is defined, and it also bears on the justification of the proposed criteria for death determination and their interpretation. Part of the controversy on brain death and death determination stems from disputed crucial medical facts, but in this paper I formulate another hypothesis about the nature of ongoing controversies. At stake is (...) a misunderstood relationship between, on the one hand, the nature of our lay views about death and, on the other hand, the nature of scientific insights into death and its determination. The misunderstanding of this relationship has partly anchored the controversy and continues to fuel it. Based on a perspective inspired by pragmatism, which stresses the positive contribution of science to ethical and policy debates but also challenges different forms of scientism in science and philosophy found in foundationalist interpretations, I scrutinize three different stances regarding the relationship between lay and scientific perspectives about the definition of death: foundational lay views, foundational expert views, and co-evolving views. I argue that only the latter is sustainable given recent challenges to foundationalist interpretations. (shrink)

Conceptual clarity is essential when engaging in dialogue to avoid unnecessary disagreement and to promote mutual understanding. In this issue devoted to clinical bioethics, the authors exemplify the virtue of careful conceptual analysis as they explore complex clinical questions regarding the essential nature of medicine, the boundaries of killing and letting die, the meaning of irreversibility in definitions of death, the argument for a right to try experimental medications, the ethical borders in complex medical billing, and the definition and modeling (...) of complex disease states. (shrink)

In this paper, I introduce the ideas to be discussed in the articles of this journal with reference to an imaginary case involving a pregnant woman declared dead on the basis of neurological criteria. I highlight the fact that although these ideas have proved useful for advancing certain claims in bioethical debates, their implications are not always well understood and may complicate our arguments. The ideas to be discussed are an ethic internal to the profession of medicine; the difference between (...) killing and letting die; the organism as a whole; and the “lives” and interests of the dead. (shrink)

Although much has been written on the dead-donor rule in the last twenty-five years, scant attention has been paid to how it should be formulated, what its rationale is, and why it was accepted. The DDR can be formulated in terms of either a Don’t Kill rule or a Death Requirement, the former being historically rooted in absolutist ethics and the latter in a prudential policy aimed at securing trust in the transplant enterprise. I contend that the moral core of (...) the rule is the Don’t Kill rule, not the Death Requirement. This, I show, is how the DDR was understood by the transplanters of the 1960s, who sought to conform their practices to their ethics—unlike today’s critics of the DDR, who rethink their ethics in a question-begging fashion to accommodate their practices. A better discussion of the ethics of killing is needed to move the debate forward. (shrink)

Despite seeming uniformity in the law, end-of-life controversies have highlighted variations among state brain death laws and their interpretation by courts. This article provides a survey of the current legal landscape regarding brain death in the United States, for the purpose of assisting professionals who seek to formulate or assess proposals for changes in current law and hospital policy. As we note, the public is increasingly wary of the role of organ transplantation in determinations of death, and of the variability (...) of brain death diagnosing criteria. We urge that any attempt to alter current state statutes or to adopt a national standard must balance the need for medical accuracy with sound ethical principles which reject the utilitarian use of human beings and are consistent with the dignity of the human person. Only in this way can public trust be rebuilt. (shrink)

Controlled donation after circulatory determination of death (cDCDD) is an important strategy for increasing the pool of eligible organ donors.

Donation after cardiac death (DCD) is associated with many problems, including ischemic injury, high rates of delayed allograft function, and frequent organ discard. Furthermore, many potential DCD donors fail to progress to asystole in a manner that would enable safe organ transplantation and no organs are recovered. DCD protocols are based upon the principle that the donor must be declared dead prior to organ recovery. A new protocol is proposed whereby after a donor family agrees to withdrawal of life-sustaining treatments, (...) premortem nephrectomy is performed in advance of end-of-life management. Since nephrectomy should not cause the donor's death, this approach satisfies the dead donor rule. The donor family's wishes are best met by organ donation, successful outcomes for the recipients, and a dignified death for the deceased. This proposal improves the likelihood of achieving these objectives. (shrink)

Critics of organ donation after circulatory death (DCD) argue that, even if donors are past the point of autoresuscitation, they have not satisfied the “irreversibility” requirement in the circulatory and respiratory criteria for determining death, since their circulation and respiration could be artificially restored. Thus, removing their vital organs violates the “dead-donor” rule. I defend DCD donation against this criticism. I argue that practical medical-ethical considerations, including respect for do-not-resuscitate orders, support interpreting “irreversibility” to mean permanent cessation of circulation and (...) respiration. Assuming a consciousness-related formulation of human death, I then argue that the loss of circulation and respiration is significant, because it leads to the permanent loss of consciousness and thus to the death of the human person. The DNR request by an organ donor should thus be interpreted to mean “do not restore to consciousness.” Finally, I respond to an objection that if “irreversibility” has a medical-ethical meaning, it would entail the absurd possibility that one of two individuals in the same physical state could be alive and the other dead—an implication that some think is inconsistent with understanding death as an objective biological state of the organism. I argue that advances in medical technology have created phenomena that challenge the assumption that human death can be understood in strictly biological terms. I argue that ethical and ontological considerations about our nature bear on the definition and determination of death and thus on the permissibility of DCD. (shrink)

Transplant surgeons in the USA have begun performing a novel organ procurement protocol in the setting of circulatory death. Unlike traditional donation after circulatory death (DCD) protocols,in situnormothermic perfusion DCD involves reperfusing organs, including the heart, while still contained in the donor body. Some commentators, including the American College of Physicians, have claimed thatin situreperfusion after circulatory death violates the widely accepted Dead Donor Rule (DDR) and conclude thatin situreperfusion is ethically impermissible. In this paper I argue that, in terms (...) of respecting the DDR,in situreperfusion cardiac transplantation does not differ from traditional DCD cardiac transplantation. I do this by introducing and defending a refined conception of circulatory death, namelyvegetative state function permanentism. I also argue against the controversial brain occlusion feature of thein situreperfusion DCD protocol, on the basis that it is ethically unnecessary and generates the problematic appearance of ethical dubiousness. (shrink)

Overby and colleagues (2015) draw our critical attention to a variety of ethical challenges associated with the practice of controlled donation after circulatory determination of death (cDCDD). Alt...

A provocative question has emerged since the Supreme Court of Canada’s decision on assisted dying: Should Canadians who request, and are granted, an assisted death be considered a legitimate source of transplantable organs? A related question is addressed in this paper: is controlled organ donation after assisted death (cDAD) more or less ethically-problematic than standard, controlled organ donation after circulatory determination of death (cDCDD)? Controversial, ethics-related dimensions of cDCD that are of relevance to this research question are explored, and morally-relevant (...) distinctions between cDAD and cDCD are identified. In addition, a set of morally-relevant advantages of one practice over the other is uncovered, and a few potential, theoretical issues specifically related to cDAD practice are articulated. Despite these concerns, the analysis suggests a counterintuitive conclusion: cDAD is, overall, less ethically-problematic than cDCDD. The former practice better respects the autonomy interests of the potential donor, and a claim regarding irreversibility of cessation of the donor’s circulatory function in the cDAD context can be supported. Further, with cDAD, there is no possibility that the donor will have negative sensory experiences during organ procurement surgery. Although the development of appropriate policy-decision and regulatory approaches in this domain will be complex and challenging, the comparative ethical analysis of these two organ donation practices has the potential to constructively inform the deliberations of relevant stakeholders, resource persons and decision makers. (shrink)

The diagnosis of death by neurological criteria (colloquially known as ‘brain death’) is accepted in some form in law and medical practice throughout the world, and has been endorsed in principle by the Catholic Church. However, the rationale for this acceptance has been challenged by the accumulation of evidence of integrated vital activity in bodies diagnosed dead by neurological criteria. This paper sets out 10 different Catholic responses to the current crisis of confidence and assesses them in relation to a (...) Catholic understanding of philosophical anthropology. Having considered each of these responses, none is found to provide good grounds for the moral certainty about death needed for current transplant practice to be ethically acceptable. Unless adequate grounds for the use of neurological criteria can be restored, current transplantation practice will have become what Pope John Paul II called a ‘furtive, but no less serious and real, form of euthanasia’. (shrink)

As usually understood, the Dead Donor Rule (DDR) for organ donation requires either that (1) the donor is already dead (which legally occurs when death is determined by neurological criteria), and/or that (2) organ procurement does not cause the donor’s death.

Brain death has been accepted worldwide medically and legally as the biological state of death of the organism. Nevertheless, the literature has described persistent problems with this acceptance ever since brain death was described. Many of these problems are not widely known or properly understood by much of the medical community. Here we aim to clarify these issues, based on the two intractable problems in the brain death debates. First, the metaphysical problem: there is no reason that withstands critical scrutiny (...) to believe that BD is the state of biological death of the human organism. Second, the epistemic problem: there is no way currently to diagnose the state of BD, the irreversible loss of all brain functions, using clinical tests and ancillary tests, given potential confounders to testing. We discuss these problems and their main objections and conclude that these problems are intractable in that there has been no acceptable solution offered other than bare assertions of an ‘operational definition’ of death. We present possible ways to move forward that accept both the metaphysical problem - that BD is not biological death of the human organism - and the epistemic problem - that as currently diagnosed, BD is a devastating neurological state where recovery of sentience is very unlikely, but not a confirmed state of irreversible loss of all [critical] brain functions. We argue that the best solution is to abandon the dead donor rule, thus allowing vital organ donation from patients currently diagnosed as BD, assuming appropriate changes are made to the consent process and to laws about killing. (shrink)

Many believe that the ethical problems of donation after cardiocirculatory death (DCD) have been "worked out" and that it is unclear why DCD should be resisted. In this paper we will argue that DCD donors may not yet be dead, and therefore that organ donation during DCD may violate the dead donor rule. We first present a description of the process of DCD and the standard ethical rationale for the practice. We then present our concerns with DCD, including the following: (...) irreversibility of absent circulation has not occurred and the many attempts to claim it has have all failed; conflicts of interest at all steps in the DCD process, including the decision to withdraw life support before DCD, are simply unavoidable; potentially harmful premortem interventions to preserve organ utility are not justifiable, even with the help of the principle of double effect; claims that DCD conforms with the intent of the law and current accepted medical standards are misleading and inaccurate; and consensus statements by respected medical groups do not change these arguments due to their low quality including being plagued by conflict of interest. Moreover, some arguments in favor of DCD, while likely true, are "straw-man arguments," such as the great benefit of organ donation. The truth is that honesty and trustworthiness require that we face these problems instead of avoiding them. We believe that DCD is not ethically allowable because it abandons the dead donor rule, has unavoidable conflicts of interests, and implements premortem interventions which can hasten death. These important points have not been, but need to be fully disclosed to the public and incorporated into fully informed consent. These are tall orders, and require open public debate. Until this debate occurs, we call for a moratorium on the practice of DCD. (shrink)

Traditionally, people were recognized as being dead using cardio-respiratory criteria: individuals who had permanently stopped breathing and whose heart had permanently stopped beating were dead. Technological developments in the middle of the twentieth century and the advent of the intensive care unit made it possible to sustain cardio-respiratory and other functions in patients with severe brain injury who previously would have lost such functions permanently shortly after sustaining a brain injury. What could and should physicians caring for such patients do? (...) Significant advances in human organ transplantation also played direct and indirect roles in discussions regarding the care of such patients. Because successful transplantation requires that organs be removed from cadavers shortly after death to avoid organ damage due to loss of oxygen, there has been keen interest in knowing precisely when people are dead so that organs could be removed. Criteria for declaring death using neurological criteria developed, and today a whole brain definition of death is widely used and recognized by all 50 states in the United States as an acceptable way to determine death. We explore the ongoing debate over definitions of death, particularly over brain death or death determined using neurological criteria, and the relationship between definitions of death and organ transplantation. (shrink)

The American Journal of Bioethics, Volume 11, Issue 8, Page 48-49, August 2011.

The basic question concerning the compatibility of donation after circulatory death protocols with the dead donor rule is whether such protocols can guarantee that the loss of relevant biological functions is truly irreversible. Which functions are the relevant ones? I argue that the answer to this question can be derived neither from a proper understanding of the meaning of the term “death” nor from a proper understanding of the nature of death as a biological phenomenon. The concept of death can (...) be made fully determinate only by stipulation. I propose to focus on the irreversible loss of the capacity for consciousness and the capacity for spontaneous breathing. Having accepted that proposal, the meaning of “irreversibility” need not be twisted in order to claim that DCD protocols can guarantee that the loss of these functions is irreversible. And this guarantee does not mean that reversing that loss is either conceptually impossible or known to be impossible with absolute certainty. (shrink)

The dead donor rule (DDR) originally stated that organ donors must not be killed by and for organ donation. Scholars later added the requirement that vital organs should not be procured before death. Some now argue that the DDR is breached in donation after circulatory determination of death (DCDD) programs. DCDD programs do not breach the original version of the DDR because vital organs are procured only after circulation has ceased permanently as a consequence of withdrawal of life-sustaining therapy. We (...) hold that the original rendition of the DDR banning killing by and for organ donation is the fundamental norm that should be maintained in transplantation ethics. We propose separating the DDR from two other fundamental normative rules: the duties to prevent harm and to obtain informed consent. (shrink)

The American Journal of Bioethics, Volume 12, Issue 6, Page 12-13, June 2012.

According to the Standard View, a doctor who withdraws life-sustaining treatment does not kill the patient but rather allows the patient to die—an important distinction, according to some. I argue that killing can be understood in either of two ways, and given the relevant understanding, the Standard View is insulated from typical criticisms. I conclude by noting several problems for the Standard View that remain to be fully addressed.

Lethal organ donation is a hypothetical procedure in which vital organs are removed from living donors, resulting in their death. An important objection to lethal organ donation is that it would infringe the prohibition on doctors intentionally causing the death of patients. I present a series of arguments intended to undermine this objection. In a case of lethal organ donation, the donor’s death is merely foreseen, and not intended.

Miller, Truog, and Brock have recently argued that the “dead donor rule,” the requirement that donors be determined to be dead before vital organs are procured for transplantation, cannot withstand ethical scrutiny. In their view, the dead donor rule is inconsistent with existing life-saving practices of organ transplantation, lacks a cogent ethical rationale, and is not necessary for maintenance of public trust in organ transplantation. In this paper, the second of these claims will be evaluated. (The first and third are (...) not addressed.) The claim that the dead donor rule lacks a cogent ethical rationale will be shown to be an expression of the contemporary rejection of the moral significance of the traditional distinction between killing and allowing to die. The moral significance of this traditional distinction, and the associated norm that doctors should not kill their patients, will be defended, and this critique of it shown to be unsuccessful. (shrink)

A combination of emerging life support technologies and entrenched organ donation practices are complicating the physician's task of determining death. On the one hand, technologies that support or replace ventilation and circulation may render the diagnosis of death ambiguous. On the other, transplantation of vital organs requires timely and accurate declaration of death of the donor to keep the organs as healthy as possible. These two factors have led to disagreements among physicians and scholars on the precise moment of death. (...) In this article, I suggest that the debate about exactly when a person dies can benefit from distinguishing the strict biological concept of death from the medical standards for determining human death, and I show how an appreciation of the difference between the permanent and irreversible cessation of circulation is helpful in understanding the reasons for the two approaches to determining when death should be declared. (shrink)