A Call to Reject the Neurological Standard in the Determination of Death and Abandon the Dead Donor Rule

INTRODUCTION Advances in life-saving technologies coupled with the growing demand for solid organs have caused the medical community to challenge its traditional understanding of death. Today, most states have adopted the Uniform Determination of Death Act (UDDA), (1) which prescribes two criteria for determining death. The UDDA states that a person is dead when he or she "has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem." (2) The Act further specifies that the determination of death "must be made in accordance with accepted medical standards." (3) These two standards have become known as the cardiopulmonary standard and the neurological standard, respectively. But the standard for determining death was not always twofold. Prior to the second half of the twentieth century, people had long understood death according to the cardiopulmonary standard, that is, "when a person's heart and circulatory system have permanently and irreversibly ceased to function." (4) However, during the second half of the twentieth century, the advances in intensive care medicine and the growing demand for vital organs set the stage for the development of a new way of determining death. (5) Specifically, by the mid-1960s, medical technology had progressed to the point where ventilators could maintain heart and lung function in patients who had suffered devastating neurological injuries. (6) In addition, "the discovery of cyclosporine in 1978 is thought to have revolutionized the field of transplantation" by helping to prevent organ recipients from rejecting transplanted organs and markedly improving survival rates. (7) In 1968, Harvard Medical School created a physician-led committee to develop a new set of criteria for the determination of death. The committee's work paved the way for the neurological standard. (8) In a paper entitled, A Definition of Irreversible Coma, (9) the committee concluded that patients who meet the diagnostic criteria for a certain type of brain injury can be pronounced dead before their hearts stop beating. (10) Then in 1981, the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (Commission) proposed the language for the Uniform Determination of Death Act in Defining Death: Medical, Legal, and Ethical Issues in the Determination of Death. (11) The text accompanying the statute clarified the relationship between the two alternative standards: "in almost all cases of human death the traditional standard [cardiopulmonary standard] should be used, as it always ha[s] been," (12) and "[o]nly in rare cases in which mechanical ventilation is used to support the breathing of a severely brain-injured individual ... should a brain-based standard be employed." (13) However, today, most organs are recovered from donors who meet the neurological criterion24 The Commission's model statute was endorsed by the American Medical Association (AMA), the American Bar Association (ABA), and the National Conference of Commissioners on Uniform State Laws (NCCUSL). (15) The NCCUSL published the statute under the name "Uniform Determination of Death Act" and encouraged states to pass it. (16) The key section of the Act reads as follows: An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (9) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards. (17) Even though not all states have adopted the exact language of the UDDA, they all have some form of legal recognition for a neurological standard of death. (18) This Note argues that we should reject the neurological criterion and return to using only the cardiopulmonary standard because of the uncertainty surrounding the neurological standard. …