Death and Donation

Rethinking Brain Death as a Means for Procuring Transplantable Organs

Henderson

• Publisher: Pickwick Publications
• Year: 2011
• ISBN:
  9781621890201
• Topic: Theology & Religion
• Subtopic: Religion

Since its inception in 1968, the brain-death criterion for human death has enjoyed the status of one of the few relatively well-settled issues in bioethics. However, over the last fifteen years or so, a growing number of experts in medicine, philosophy, and religion have come to regard brain death as an untenable criterion for the determination of death. Given that the debate about brain death has occupied a relatively small group of professionals, few are aware that brain death fails to correspond to any coherent biological or philosophical conception of death. This is significant, for if the brain-dead are not dead, then the removal of their vital organs for transplantation is the direct cause of their deaths, and a violation of the Dead Donor Rule.This unique monograph synthesizes the social, legal, medical, religious, and philosophical problems inherent in current social policy allowing for organ donation under the brain-death criterion. In so doing, this bioethical appraisal offers a provocative investigation of the ethical quandaries inherent in the way transplantable organs are currently procured. Drawing together these multidisciplinary threads, this book advocates the abandonment of the brain-death criterion in light of its adverse failures, and concludes by laying the groundwork for a new policy of death in an effort to further the good of organ donation and transplantation.

1

The Origin of the
Brain Death Standard

Determining the moment of human death has always been challenging. In the past, physicians and lay people alike relied upon the absence of breathing and pulse as indicators of the occurrence of death. However, in the eighteenth century, accounts of corpses reviving during funerals and the discovery of exhumed skeletons having clawed at coffin lids created widespread fear of premature burial. In response, a number of creative measures were developed, including the sale of coffin lids equipped with speaking tubes or strings linked to bells above ground and the employment of guards by mortuaries to monitor the newly dead for life signs.1 In the years that followed, the medical press addressed these concerns by proposing various methods for confirming death.2 Whether life ceases upon putrefaction of the body, or the point at which a feather held to the nose ceases to flutter, humans have always exhibited a keen interest in ensuring the occurrence of death.3

Progress in medical technology, developed in the 1950s, brought with it a new medical phenomenon, which presented new challenges in the determination of death. Some patients who suffered head trauma or spontaneous intracranial haemorrhage, would slip into a condition in which the brainstem would undergo herniation due to severely elevated intracranial pressure.4 Indicative of the severest cases is “permanent loss of consciousness, absence of brainstem reflexes, and complete loss of respiratory drive.”5 However, respiratory failure that had previously resulted in the death of these patients could now be delayed through mechanical ventilation. Although the patients would expire within a few hours, or in some cases a few days, their clinical condition would become known as “brain death.”6

The emergence of brain death stems from two seminal events—one occurring in late 1967 and the other early in 1968. In December 1967, Christiaan Barnard successfully transplanted the first human heart into a patient dying from heart failure in South Africa. Although the recipient died eighteen days later, the well-publicized event led to the advent of heart transplantation, with over one hundred attempted the following year.7 Early failures were attributed to the problems of organ rejection by recipients’ immune systems and organ deterioration due to the need to wait for sufficient time after cardiac arrest to ensure that the donor would not spontaneously resuscitate.8 Although transplant researchers debated the neurological criteria for determining death, the Harvard report of 1968 marked the first recognized diagnostic criteria for determining brain death. The advantage this offered for transplantation technology was obvious—no longer would transplant surgeons have to wait several minutes after cardiac arrest to retrieve organs for transplantation, thereby risking organ degeneration. It also increased the viability of transplantable organs because, through mechanical ventilation, donors’ hearts would continue to beat. Thus, despite the absence of brain activity, vital organs were infused with oxygenated blood until the time that the organs were removed.

Despite sporadic objections from physicians and philosophers on both biological and moral grounds, public policy embraced the brain death criterion that was reflected in American law. During the 1970s, the ethical controversy regarding brain death, as well as inconsistencies in legislative initiatives during the 1970s, contributed to the creation of the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. The Commission was charged, among other things, with the task to study “the ethical and legal implications of the matter of defining death, including the advisability of developing a uniform definition of death.”9 In 1981, the Commission issued its report, entitled, Defining Death, which proposed a “Uniform Determination of Death Act” as a model for legislation. Over the next twenty years, all states adopted, through either legislation or common law, the brain death standard.10

Despite its prevalence, brain death continues to generate both controversy and criticism. This chapter will discuss the criticism, particularly with respect to the claim that brain death does not have valid justification other than advancing transplantation research.11 This chapter, therefore, will investigate the historical development of brain death and critically assess the justifications proffered by various commissions in order to promote its use in medical practice. Specifically, the chapter will provide a brief history of emerging new medical technologies and their effect on medical research and practice. The chapter will then examine the Harvard Ad Hoc Committee’s recommendation of the brain death criterion and explore the motivations behind the recommendation. Finally, the chapter will address and evaluate the report of the President’s Commission.

The Emergence of New Medical Technologies

Historically, brain death emerged at the crossroads of two intersecting technological advances in medicine, i.e., artificial life-support mechanisms and organ transplantation.12 With the advent of flexible plastic tubing and mechanical ventilation,13 the beating hearts of patients could be sustained through respiratory support when the capacity for breathing was inhibited or lost due to severe or irreversible brain damage. In 1959, P. Mollaret and M. Goulon, two French physicians, published an article describing certain mechanically ventilated patients in a condition they termed coma dépassé, or “beyond coma.”14 These patients not only exhibited loss of consciousness, but also “showed apnoea, loss of brainstem reflexes, and other abnormalities (such as hypotension, presumed diabetes insipidus and disturbances of temperature regulation) consistent with the modern concept of brain death.”15 Patients in this condition nevertheless retain hypothalamic-pituitary axis, temperature regulation, and spinal activity for several hours, though no documented case of recovery exists.16 Earlier that same year, an article was published by M. Jouvet who suggested the use of the electroencephalogram (EEG) for diagnosing the death of the central nervous system.17 This set the stage for discussions in the decade that followed regarding the ethical and legal aspects of coma dépassé.

Although the first successful transplant of a human organ occurred in 1954,18 organ and tissue transplantation would not thrive until advances in surgical techniques and immunosuppression drugs were developed in the 1960s. Due to these advancements, a growing need for cadaveric organs (particularly kidneys), which living, related donors could not meet demands, prompted discussion concerning the potential source of coma dépassé patients.19 These discussions preceded 1968, the year in which diagnostic criteria for brain death were formally proposed.20

Perhaps the most significant discussions preceding 1968 occurred at the 1966 Ciba Foundation symposium entitled, Ethics in Medical Progress: With Special Reference to Transplantation.21 Included in the discussions were physicians (two-thirds of whom were transplant researchers), legal scholars, journalists, and theologians from the United States and Europe. Their discussions centered on deterioration of organs (kidneys) obtained from cadavers and the possibility of procuring more viable organs from brain-injured patients. With developing diagnostic technology such as the EEG, the use of brain-based criteria for diagnosing death promised to relieve concerns for donor mutilation from live kidney donors, which seemed for some a violation of the ethical imperative to “first do no harm.”22 Nevertheless, some physicians at Ciba were not as optimistic about the prospects of what they considered “redefining death” in order to advance transplant research. These critics charged that proponents of a brain-based criterion were interested only in its use on potential organ donors and showed resistance to its use on themselves or their loved ones should they go on life support.23 Moreover, there was some question regarding the physiologic meaning of EEG indications in some comatose patients. Particularly, its sporadic use in the study of coma and death raised questions as to its reliability in depicting death. As the conference concluded, more questions were raised tha...