Defining Death: Getting It Wrong for All the Right Reasons

The Uniform Determination of Death Act defines death as either the irreversible cessation of all circulatory and respiratory functions or of all functions of the entire brain. As a matter of scientific fact, many patients declared dead for purposes of organ donation do not meet this legal requirement. In addition, many of these patients have not lost "the integrated functioning of the organism as a whole," a scientific standard that defines life across the entire biological spectrum, not just in humans. As such, current practices violate the implicit ethical and legal principle known as the "dead donor rule," which states that vital organs may never be removed from patients before they are dead.I claim that while current practices of organ procurement do cause the death of the patient, they are nevertheless ethical because: (1) they are performed with the patient's or surrogates' consent (principle of respect for autonomy), and (2) they do not harm or set back the interests of the patient (principle of nonmaleficence). While the ideal long-term solution is to reframe the ethics of vital-organ donation in terms of these principles rather than the dead donor rule, a more practical short-term solution may be to conceptualize current approaches to defining death as socially acceptable "legal fictions," acknowledging that they are not biologically valid. Not only would this solution create a more honest and transparent public policy, but it would save lives by increasing both the quantity and the quality of organs available for transplantation.IntroductionThe "dead donor rule" (DDR) is a principle that has been an implicit ethical and legal requirement in the procurement of organs since the beginning of the transplantation enterprise in the 1960s.1 The rule has been expressed in various formulations, including: (1) vital organs for transplantation may only be procured from patients who are dead, or (2) physicians may not cause death when procuring vital organs for transplantation.2 The rule does not exist literally in the law, but rather is understood to be an implication of existing laws and ethical standards related to homicide.3This Article is divided into three Parts. Part I gives a historical and conceptual background to organ donation. Part II advances an argument that is purely scientific in nature and relies only on careful examination of the biological facts about patients currently diagnosed as dead for purposes of organ donation. I will conclude that many patients currently deemed to be legally dead for purposes of organ donation are not in fact dead by any scientific or biological standard. If this claim is correct, then it follows that our current practices of organ procurement do not conform with the DDR.While the majority of experts and commentators on the subject argue that we should not abandon the DDR, it is important to be clear that unless this claim can be shown to be false, there is no way that we can continue our current practices in organ procurement and continue to hold allegiance to the DDR. Again, I want to emphasize that this argument does not depend upon any ethical or value assumptions, but rather is a narrow scientific argument that the biological claims made by others over the years cannot withstand critical scrutiny.In Part III, I explore the options that are available to us, if indeed the claim made in Part II is correct. One option, of course, would be to confirm the authority of the DDR and to stop procuring organs from individuals that we have previously considered to be deceased. This option would have tragic consequences, resulting in the premature death of thousands of patients each year from failure to receive a life-saving organ, as well as failure to honor the altruistic requests of many individuals to donate their organs to others when they are no longer in need of them.A second option, which I will argue is the best long-term solution, is to reconsider the ethical and legal foundations of organ procurement and explore whether it may be ethically and legally permissible for patients to donate vital organs before they are dead, provided certain other requirements are met. …