Academic journal article Albany Law Review

Donation after Cardiac Death: Respecting Patient Autonomy and Guaranteeing Donation with Guidance from Oregon's Death with Dignity Act

Academic journal article Albany Law Review

Donation after Cardiac Death: Respecting Patient Autonomy and Guaranteeing Donation with Guidance from Oregon's Death with Dignity Act

Article excerpt

As medical technologies advance, the legal community is forced to address difficult medical issues, balance competing ethical concerns, and find solutions to seemingly impossible questions. One such question is whether a patient "living" in a medically futile condition, who has sought the withdrawal of life support and donation of his or her organs can be declared legally dead--or, in this situation, can the law deem the administration of death hastening drugs acceptable--for the purpose of ensuring the viability of his or her procured organs for the future organ recipient? In the context of organ donation, such a question can have far reaching effects.

Consider the following situation. An adult woman, Anne, falls victim to a horrific bicycle accident, leaving her with only primitive brain stem functioning and completely dependent upon a ventilator. (1) Prior to the accident she signed an advance directive requesting that if she were ever in a state of permanent unconsciousness a do not resuscitate ("DNR") order be set in place and any ventilator removed. The directive assigns Anne's spouse to act as her surrogate and to implement her requests. On several prior occasions the couple had discussed their wishes and each had expressed the desire not to remain on life support. Furthermore, concerned about the increasing organ shortage, the couple registered as organ donors and expressed to each other their strong desire that their organs be donated.

Following the accident, it became clear that Anne's condition was not going to improve and that medical intervention would be futile. Pursuant to the directive and Anne's wishes, her husband requested that life support be withdrawn and that Anne's organs be donated. The hospital initiated its donation after cardiac death ("DCD") protocol. However, strictly complying with the DCD protocol, the hospital did not continue the process of procuring Anne's organs because she did not reach full cardiac arrest within a given time period; the organs could not be used because they are less likely to be successful in the recipient's body. As a valid DNR was in place, Anne was not revived. She and her organs died several minutes later.

This comment explores the legal landscape surrounding DCD and the possibility of allowing the utilitarian removal of organs from patients who may not be considered dead under current legal definitions. While this exploration focuses on New York State law, much of the discussion is applicable to jurisdictions throughout the United States. Part I of this comment sets forth the current DCD protocols and the problems these protocols can create or prevent. Part II discusses current legal and ethical considerations involved in DCD and their interplay with long-established ideas of patient autonomy, nonmaleficence, and beneficence. Part III discusses the ethical arguments that proponents of procuring organs prior to legal death have set forth and the benefits that can be gained from such conduct. Part IV notes the hesitance--prior to their widespread acceptance--of the medical, legal, and lay communities to accept DNR orders, the removal of life-prolonging technology, and to legally define death to include brain death. Finally, Part V discusses what needs to change in the legal and medical spheres to ensure that organs can be procured within one hour after withdrawing life-prolonging measures. Acquisition of organs within that period is necessary to ensure that the organs remain viable for transplantation into the recipient(s) and to meet the requirements under DCD protocols.

I. DCD PROTOCOLS IMPLICATE ETHICAL CONCERNS

The Uniform Determination of Death Act ("UDDA"), which has been adopted in some form by all fifty states, defines a person as dead when the "individual ... 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. …

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