Academic journal article Issues in Law & Medicine

Is Organ Procurement Causing the Death of Patients?

Academic journal article Issues in Law & Medicine

Is Organ Procurement Causing the Death of Patients?

Article excerpt

ABSTRACT: This article offers a philosophical foundation for the Uniform Determination of Death Act as it first examines death per se, and then examines brain death and the non-heart beating donor criteria for determining death. The author suggests that many of the debates over death can be bypassed by changing the terms of the debate: what matters is not whether death is a process or an event, but death as a state. Understanding death as a state allows us to determine death in a functional manner that is compatible with the needs of law and medicine. The second part examines objections that arise from ignoring or rejecting the distinction between killing and letting die and the principle of double effect. By clarifying the lines between life and death, on the one hand, and between intentionally killing and unintentionally hastening death, on the other, the author hopes to restore a sense that the proposals to drop the dead donor rule are radical recommendations to cross lines we have never crossed before.

Some who oppose the so-called dead donor rule (1) argue that we might as well drop the rule, for we are already causing the death of organ donors. (2) Different authors offer different reasons for maintaining that organ procurement kills patients, but there are at least five ways in which this allegedly happens (3):

* Insofar as we procure organs from the brain dead, who are not really dead because they may show significant signs of life such as maintaining a heart beat and fighting infections. (4)

* Insofar as some patients who are declared dead using so-called non-heart-beating donation (NHBD) protocols have not irreversibly lost all circulatory-respiratory functions prior to organ procurement. (5)

* Insofar as the same donors may not have irreversibly lost all brain functions prior to organ procurement. (6)

* Insofar as NHBD involves the withdrawal of life support from patients. (7)

* Insofar as NHBD sometimes involves the administration of anti-coagulants such as Heparin prior to death, which could cause brain hemorrhaging and death in some patients. (8)

The first three allegations arise from doubts about the content or current implementation of the Uniform Determination of Death Act (UDDA); the last two allegations arise from ignoring or rejecting the principle of double effect or its application.

Proposed responses to these allegations typically take one or more of three forms:

* Accept some or all of the allegations, accept the idea of causing the death of organ donors under certain circumstances, and support dropping the dead donor rule. (9)

* Accept some or all of the allegations, refuse to cause the death of donors, and accordingly support changes to our practices. (10)

* Attempt a refutation of all or some of these allegations.

This article takes the third course. In the first part, it offers a philosophical foundation for the UDDA as it first examines death per se, and then examines brain death and NHBD criteria for determining death. There it is argued that many of the seemingly endless and irresolvable debates over death can be bypassed by changing the terms of the debate: what matters is not death as a process or as an event, but death as a state. Understanding death as a state allows us to determine death in a functional manner that is compatible with the needs of law and medicine, and, in principle, is consistent with many commonsense and religious views of death. It also allows us to understand why those patients allegedly killed under the first three scenarios listed above are already dead when procurement begins.

In the second part, objections that arise from ignoring or rejecting the distinction between killing and letting die and the principle of double effect or its application are examined.

If successful, this article will do more than show that our current transplant practices do not cause the death of donors. …

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