The importance of being dead: non-heart-beating organ donation.

ABSTRACT: There is no definitive answer to the question of how long one must wait, after a person's heart stops beating, before concluding that the person meets the heart-lung criteria for death. This question has assumed new importance with attempts to remove transplantable organs from people declared dead using those criteria. An examination of the legal definition of death suggests that organs are indeed being procured from some of these people prior to their being legally dead. Moreover, the fact that the donors have consented to these procedures does not eliminate reason for Concern regarding this state of affairs, since patient autonomy must at times be overridden in pursuance of important social goals. ********** Few can dispute that there is a shortage of transplantable organs. Thousands of people die each year, waiting for an organ that did not arrive in time. A variety of proposals are being pursued in an effort to remedy this unfortunate situation. One of the more controversial proposals involves the use of a new class of possible donors: people who die in the "usual" manner, when they stop breathing and their hearts stop beating. This article discusses several issues raised by the use of these so-called "non-heart-beating" organ donors. In particular, it will explore whether organs are being removed from such donors prior to the time when they are legally dead, and why we should be concerned about this. The great majority of the transplantable organs that are removed from people after they have died are currently taken from people who have been declared "brain dead." (1) The concept of brain death initially received prominence in the late 1960's as the result of a report by a committee at the Harvard Medical School, (2) and in the ensuing years it has become part of the legal definition of death in virtually every state, either by the passage of a law, or through a court's adoption of such a rule. (3) A person who meets the criteria for brain death has suffered the irreversible cessation of function of all of the brain: both the "higher" brain, responsible for thinking and feeling, and the "lower" brain, responsible for many of the housekeeping chores that keep the rest of the body functioning (such as breathing and maintaining a constant temperature). (4) Such a person's heart is usually still beating, although the body needs to be hooked up to a ventilator, which effectively breathes for that person. Because oxygenated blood is still circulating through the person's body, the organs remain healthy for some period of time after the person is declared dead, and are thus useful for transplantation purposes. (5) In general, relatively few people die in a manner that allows them to meet the brain death criteria. (6) There usually needs to be an interruption in the blood flow to the brain (for example, due to a hemorrhage in the brain that increases intra-cranial pressure) under circumstances where blood flow to the rest of the body continues (or, at least, is restarted before substantial damage occurs to the heart and other organs). Thus, the supply of organs for transplantation that come from brain dead donors is of necessity limited. (7) Given the disparity between the large number of people who could benefit from an organ transplant, and the much smaller number of currently available transplantable organs, policy makers have been seeking ways to shrink this gap. (8) One obvious thought relates to possibly obtaining organs from those of us who will not die in a way that meets the brain death criteria, but rather in the "usual" way: our heart stops beating, or we stop breathing. In either of these two cases, as a result of the loss of oxygen (since no oxygenated blood is flowing through the body) all of the body's organs (including the heart, lungs and brain) will shortly thereafter be so damaged that they permanently stop functioning. In formal terms, this set of events is referred to in the Uniform Determination of Death Act (UDDA), (9) the model statute whose language has been adopted by most states in their legal definitions of death, as "irreversible cessation of circulatory and respiratory functions. …