Replacement Parts

The Ethics of Procuring and Replacing Organs in Humans

Arthur L. Caplan, James J. McCartney, Daniel P. Reid, Arthur L. Caplan, James J. McCartney, Daniel P. Reid

• Publisher: Georgetown University Press
• Year: 2015
• Print ISBN: 9781626162365, 9781626162358
• eBook ISBN: 9781626162372
• Topic: Medicine
• Subtopic: Ethics in Medicine

In Replacement Parts, internationally recognized bioethicist Arthur L. Caplan and coeditors James J. McCartney and Daniel P. Reid assemble seminal writings from medicine, philosophy, economics, and religion that address the ethical challenges raised by organ transplantation. Caplan's new lead essay explains the shortfalls of present policies. From there, book sections take an interdisciplinary approach to fundamental issues like the determination of death and the dead donor rule; the divisive case of using anencephalic infants as organ donors; the sale of cadaveric or live organs; possible strategies for increasing the number of available organs, including market solutions and the idea of presumed consent; and questions surrounding transplant tourism and "gaming the system" by using the media to gain access to organs.

Timely and balanced, Replacement Parts is a first-of-its-kind collection aimed at surgeons, physicians, nurses, and other professionals involved in this essential lifesaving activity that is often fraught with ethical controversy.

Part I

The Dead Donor Rule, the Determination of Death, and Organ Transplantation from (Almost?) Cadavers

James J. McCartney

Replacement Parts starts with an introduction that provides a major overview of the ethical issues dealing with organ transplantation. Part I then deals with the interrelated themes of the dead donor rule, the determination of death, and organ transplantation from cadavers (or, as some of the authors in this part suggest, almost cadavers). The first two chapters are related. Koppelman suggests, for reasons of respect for autonomy and maximizing organ donation, that in the situation of organ donation from willing dying donors, the dead donor rule can and should at times be rejected. McCartney is opposed to this position, arguing that respect for persons is more than respect for autonomy and also includes protection of the vulnerable. McCartney also suggests that if the dead donor rule was known to be abandoned, fewer people rather than more would be willing to be organ donors.

The Truog et al. and Chaten chapters both argue against the dead donor role. Truog et al. argue first, in a way similar to Koppelman, that dying persons should be allowed to donate organs before death. But they also hold that brain death is not really the death of the person because it does not destroy the “integrative capacity” of the person, and that by adopting brain death as a criterion for determination of death in the law, we have effectively abandoned the dead donor rule. Truog et al. hold that this is ethically acceptable. These authors also raise questions about organ donation after cardiac death and question whether the irreversible standard of the law for determining cardiac death has really been met. Chaten argues that the dead donor rule consistently impedes physicians in fulfilling their primary duty to act for the good of their prospective donor patients, which compromises the virtue of fidelity. And he holds that it also weakens many other virtues necessary for physicians to provide excellent end-of-life care. He believes that as admirable as the dead donor rule is in theory, it provides many ethical conflicts for health care professionals in practice.

Chiong argues that, while the whole-brain criterion of death is roughly correct, the conceptual framework that its advocates have appealed to is deeply philosophically flawed. He provides a rigorous philosophical defense of what seems to be position two of the white paper of the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Defining Death: Medical Legal and Ethical Issues in the Determination of Death (see the Shewmon chapter below).

Magnus et al. and the chapter by Karol Wojtyła (Pope John Paul II) both justify the acceptance of brain death. Magnus et al. emphasize that dying is a process and that denying that brain death is an important marker in that process would cause untold confusion and great legal uncertainty if it were abandoned at this point. Their argument is more pragmatic than conceptual, and they hold that it is very difficult to determine conceptually exactly when death occurs during the process of dying and that the determination of death using the criterion of whole-brain death provides a measurable and irreversible step in that process that should continue to be accepted in the law. Wojtyła seems to accept this approach since he holds that the death of the person is an event that no scientific technique or empirical method can identify directly and that the “criteria” for ascertaining death used by medicine today should not be understood as the technical-scientific determination of the exact moment of a person’s death, but as a scientifically secure means of identifying the biological signs that a person has indeed died. However, he also holds that the determination of death should be a “moral” certainty and accepts brain death because in total brain death a person has lost “integrative capacity,” which may mean something different in the Catholic tradition from what authors such as Truog or Shewmon mean by this phrase.

Shewmon has been a pioneer in showing that total brain failure does not destroy the body’s “integrative capacity” as he understands it, and his chapter provides a history of the development of the concept of “brain death,” utilizing the White Paper of the President’s Council on Bioethics cited above. He holds that this paper is in many respects a refreshing, thoughtful, and comprehensive reexamination of this complex topic. His arguments agree with the section of the paper that argues that total brain failure does not indicate a person has died. These arguments are significant in that they provide justification for those like Shewmon who believe that organs should not be removed from those declared brain dead until respiration and circulation have irreversibly ceased. But they also provide justification for Truog and others to argue that the dead donor rule is a legal and ethical fiction.

Bernat’s chapter raises many practical, ethical, and legal issues raised by controlled donation after cardiac (circulatory) death (CDCD) including treatment of donors before death to enhance organ viability, informed consent issues, and the importance of the decision of a patient (or a surrogate) to have life-sustaining therapy withheld always to remain independent of and unconnected to the decision to donate organs.

Wilkinson and Savulescu’s provocative chapter is very strong. They conclude that organ conscription would have the greatest potential to increase the numbers of organs available for transplantation, though it would come at the cost of patient and family autonomy. If organ conscription were not acceptable, the alternative that would have the greatest potential in terms of organ numbers would be organ donation euthanasia.

The final article by Zeiler et al. discusses ethical questions related to controlled and uncontrolled non-heart-beating donation. It argues that certain preparative measures, such as giving anticoagulants, should be acceptable before patients are dead; however, when they have passed a point where further curative treatment is futile, they are in the process of dying and they are unconscious. Further, the chapter discusses consequences of technological developments based on improvement of a chest compression apparatus used today to make mechanical heart resuscitation possible.

The chapters in this part raise many important issues that relate to cadaveric (or almost cadaveric) organ donation. Most of the chapters have extensive notes or references that can be used for further study. The exception to this is the Wilkinson and Savulescu chapter in which there are no notes, but those interested in their arguments should consult their full text, which provides a great many very helpful references.

Chapter 1

The Dead Donor Rule and the Concept of Death

Severing the Ties That Bind Them

Elysa R. Koppelman

Abstract

One goal of the transplant community is to seek ways to increase the number of people who are willing and able to donate organs. People in states between life and death are often medically excellent candidates for donating organs. Yet public policy surrounding organ procurement is a delicate matter. While there is the utilitarian goal of increasing organ supply, there is also the deontologic concern about respect for persons. Public policy must properly mediate between these two concerns. Currently the dead donor (dd) rule is appealed to as an attempt at such mediation. I argue that given the lack of consensus on a definition of death, the dd rule is no longer successful at mediating utilitarian and deontologic concerns. I suggest instead that focusing on a particular person’s history can be successful.

Advances in medical technology have enabled us to isolate and separate the three main components thought to be central to death—components that previously seemed to happen almost simultaneously. While one’s brain, heart, and breathing used to stop functioning within moments of each other, advances in technology have enabled us to maintain the functions of some even though others have been lost. These suspended states have called into question our previous ideas about life and death. While people in PVS (permanent vegetative state) or who satisfy the criteria for brain death do not appear to fit our previous conceptions of death, neither do they fit our previous conceptions of living. Through technological advances we have created slippery areas between life and death. Or, perhaps more accurately, we have extended these states, enabling their discovery and forcing us to deal with them. Should we mourn for the patient in PVS? Should her marriage be dissolved? Can we take organs from her?

There is currently an organ shortage. While the number of patients awaiting transplants continues to increase, the number of organ donors remains virtually unchanged. The transplant community continually seeks ways to increase the number of people who are willing and able to donate organs. People in states between life and death are often medically excellent candidates for donating organs. Basic body functions can be maintained, keeping organs fresh. And taking organs from these patients will increase the organ supply. Yet public policy surrounding organ procurement is a delicate matter. While there is the utilitarian goal of increasing the organ supply, there is also the deontologic concern about respect for persons. The end of increasing the organ supply is a good one. But the goodness of the end does not justify using any means to achieve that end. Potential donors should not be treated as mere means to the end of organ procurement. We should not harm potential donors in the name of utilitarian goals, but we would harm potential donors by failing to treat them with respect.

We can thus characterize the concerns of the organ transplant community as the attempt to reconcile or mediate the utilitarian goal with deontological considerations about respect for persons. The question that needs to be answered is this: how can we successfully temper efforts to foster the utilitarian goal without at the same time significantly undermining that goal? Currently, decisions about harvesting organs are made according to a principle called the dead donor rule (dd rule), which tempers the utilitarian goal of increasing the organ supply on the basis of a distinction between life and death. According to the dd rule it is immoral to kill patients by taking their organs. This means that living persons cannot donate vital organs and cannot donate nonvital organs if doing so would lead to death. Advocates of the dd rule seem to suggest that life gives people a particular moral and social status that creates expectations or obligations to treat them in certain ways (even if they request to be treated differently). It is inappropriate to mourn for those who are still living. Marriages between two living people cannot be dissolved unless both parties have a voice. Increasing the organ supply by using living people only as a means is unacceptable.

If the dd rule is correct, then our definition of death has important policy implications, for the circumstances under which a person is declared dead will determine the circumstances under which her organs can be removed. This supposed connection between time of death and moral/social dilemmas has driven discussions about the meaning and criteria of death and has grounded those discussions in pragmatic concerns. Many theorists tried to “build consensus against competing concepts” of death. What had become slippery, they reasoned, needed to be regrasped. And this attempt to find consensus was given a public spin. Finding consensus was first seen as a means of “protecting physicians against the public’s fear of organ thieves”. But with the advent of the autonomy movement, definitions and criteria of death were “heralded as a means of protecting the public against futile and callous medical intervention” (Pernick 1999).

The attempt to develop a consensus definition of death was unsuccessful largely because this effort was entangled with other social and moral agendas. Many theorists believe that this discussion became not a matter of regrasping the definition of death in order to resolve moral and social dilemmas, but rather a matter of resolving moral and social dilemmas by playing with the definition of death. Consensus about the definition of death has not been reached, leaving questions about the moral status of removing organs in many cases unresolved—at least for those who advocate the dd rule.

The moral status of taking organs from patients who fall in these states eludes us for two reasons. First, the dd rule seems to establish an important connection between determinations of death and organ procurement that renders a conclusive definition of death vastly important for determining the moral status. However, second, the concept of death is elusive, so a conclusive definition cannot be found. The dilemmas that appear to be associated with determinations of death (like organ procurement) need to be resolved in another way. There are two main approaches to this policy problem: one may either adhere to the dd rule, with its focus on the distinction between life and death, and decide how public policy should deal with the lack of consensus, or one may rethink the dd rule and sever the connection between determinations of death and organ procurement (at least in some cases). In the remainder of this paper I discuss each of these options. I argue that the dd rule can no longer successfully mediate the utilitarian goal with deontologic considerations for patients in these suspended states, because the focus of the rule is misguided. I conclude by arguing that the apparent necessary connection between death and organ procurement is not as necessary as dd rule advocates seem to think. I suggest that by focusing instead on a particular patient’s history, true respect can be given to potential organ donors without undermining efforts to at least sustain the current number of organ donors.

Lack of Consensus, Public Policy, and the Dead Donor Rule

Many theorists, such as Charo and Veatch, recognize that a definitive definition is not necessary for a sensible policy. They argue that an appreciation of the concept’s ambiguity—not a quest for a conclusive definition of death—should influence policy. Can the dd rule be part of a sensible policy? There are two main ways in which the ambiguity of death can influence a public policy in which determinations of death play a central role. One is to recognize the ambiguity and embrace it. The other is to “acknowledge and discard it” (Charo 1999). Veatch supports the former view. Charo supports the latter.

Veatch and Charo both believe that death is an ambiguous concept because it is not a purely biological concept. Death is a “social, normative issue” that is influenced by “religion, metaphysics, and values” (Veatch 1999); it is a concept that is intimately tied with social or political goals (Charo 1999). Death has moral, religious, and political connotations making its extension something not purely empirical, but laden with feelings, values, and beliefs. Because of this belief about the nature of death, these theorists claim that a single moment is insufficient to justify all social and moral concerns that seem to be connected with death for all people. Both theorists share the intuition that lies behind the dd rule, claiming that we need moments of death, both socially and psychologically, but they argue that these moments differ among individuals and cultures.

Charo argues that for public policy it seems far easier to recognize and then disregard the ambiguity of death than to embrace it. She questions whether the general public can handle the...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• Part I: The Dead Donor Rule, the Determination of Death, and Organ Transplantation from (Almost?) Cadavers
• Part II: The Use of Anencephalic Infants as Organ Donors
• Part III: Sale of Cadaveric or Live Organs
• Part IV: Other Strategies for Increasing the Number of Available Organs
• Part V: Gaming the System
• Contributors
• Permissions and Credits
• Index