Should the ethics of vital organ donations be reconsidered?
Miller and Truog argue practices not in line with policy
"We contend that the proposition that brain death constitutes death of the human being is incoherent and, therefore, not credible."1
In their paper, "Rethinking the Ethics of Vital Organ Donation," Franklin G. Miller, PhD, a bioethicist with the National Institutes of Health (NIH) and Robert D. Truog, MD, of Harvard Medical School and Children's Hospital, Boston, suggest that "accepted medical practice already violates the dead donor rule."1 (Editor's note: Miller emphasizes his views are his own and do not represent the views of the NIH.)
The paper was published in the November/December 2008 issue of The Hastings Report, published by The Hastings Center in Garrison, NY.
"The main purpose [of our paper] was . . . having observed what looked to be a pretty fundamental discrepancy between our prevailing practices of vital organ donation and established norms, namely what's called the 'dead donor rule,' but the main purpose was to point that out and to exhibit how the practice and the norms are in fundamental tension with each other," Miller tells Medical Ethics Advisor.
The fact that there is tension between practice and policy "sort of poses a question," he says. "You can give up the practices to save the norms, which I don't think too many people would want to do, you know, give up organ donation in terms of kidneys, hearts, livers — or you can modify the norms."
In current practice, organs are extracted from donors who are "not strictly speaking, dead," so "there needs to be some kind of alternative justification for that," Miller says.
Alternative justification?
Instead of the current practice of indicating that life often ends after the withdrawal of life support, namely a respirator, the writers suggest that the withdrawal of life support itself should be identified as the cause of death.
In addition to describing this stance, i.e., the withdrawal of life support as causing death, as "both coherent and ethically sound," the authors wrote, "We shall argue further that when withdrawing life support is understood as causing the death of patients, vital organ donation can be justified without appeal to the dead donor rule."
In making this argument, the writers refer to what they describe as the "classic text," Causation in the Law by H.L.A. Hart and Tony Honoré (Clarendon Press; 1959). In their own words, the writers suggest that "Causes are events or circumstances that make the difference in explaining a particular occurrence."
"Assuming that a patient who is on life support will normally continue to live for some period of time (though perhaps be vulnerable to dying), the withdrawal of life support brings about death . . . the withdrawal makes the difference."
Miller and Truog suggest that maintaining that withdrawal of life support doesn't, in fact, cause death, "is even more implausible when artificial nutrition and hydration is the treatment withdrawn."
Any withdrawal of life support is predicated on patient consent, the writers hold, or on the consent of a designated surrogate.
"There is a right to forgo life support (whether that means withdrawing or withholding it) based on patient autonomy and informed consent — a right that has been recognized by the courts as grounded in personal liberty and self-determination protected by the U.S. constitution as well as by the common-law doctrine of bodily integrity," Miller and Truog wrote.
Organ donation before treatment is stopped
The authors pose the following question: "If it is acceptable to cause the death of a brain-dead patient by stopping life support, subject to valid consent, then why is it not acceptable to extract organs before treatment is stopped?"
They maintain that it doesn't matter, in this situation, if death is caused by stopping treatment or by extracting vital organs.
"The ethics of withdrawing treatment, properly understood, does all the needed moral work," they wrote.
And they say the same argument should be valid for patients who are on life support but have not been declared brain-dead.
"If the patient is soon to die because life support has been withdrawn, then there is no harm or wrong done in retrieving vital organs prior to death, provided that the patient (if competent) or surrogate has consented," they wrote.
Miller and Truog acknowledge that the patient does not always die in those cases where life support is withdrawn. Noting that if life support doesn't cause death, then the process of organ donation would lead to death, they wrote, "We believe that this concern can be mitigated by an examination of our current approach to palliative care at the end of life."
They suggest that patients who fall into the category of those patients from whom life support is withdrawn without knowing if they still would be able to survive "would not be acceptable candidates for organ donation."
The much more common scenario occurs when life support is withdrawn, and there is no expectation that the patient will continue "to sustain unassisted respiration." In such cases, the authors wrote, patients are often given opioids toward the goal of a more comfortable death. That approach means that "some patients who might have survived actually die as a result of the medications we administer," they say.
The 'brain-dead' are not really dead
The authors note early on in the article that it has been demonstrated that patients who are considered brain-dead can be capable of maintaining a variety of functions even in state, including circulation, digestion and metabolism of food, excretion of wastes, and hormonal balance, among others — as well as the gestation of a fetus. However, they do have a permanent loss of consciousness, and that is not reversible.
"So, it's very hard to think that you can do that with a dead body," Miller tells MEA. "There's been a lot of discussion about brain death for quite a long time, and a lot of controversy over what it really means.
"Our position isn't particularly new there, but what really hasn't been faced is how do you square what we think is a legitimate practice of extracting vital organs with what we think is the fact that these donors are not — strictly speaking — dead," he says.
Disagreement exists
The Health Resources and Services Administration (HRSA) in the U.S. Department of Health and Human Services is the agency responsible for overseeing the nation's organ procurement and transplantation network. In a statement, the HRSA took issue with two of the points in Miller and Truog's article.
"First, we don't believe the author's redefinition of death for the purposes of recovering organs is either correct or useful," the statement says.
The HRSA refers to the 1980 National Conference of Commissioners on Uniform State Laws, which completed the Uniform Determination of Death Act in cooperation with the American Medical Association, the American Bar Association and the President's Commission. The HRSA notes that this act has been "followed for nearly 30 years" and suggest it "reflects empirical medical evidence and states that determination of death must be made in accordance with accepted medical standards."
Second, the HRSA said it rejects "the idea that there should be an expanded category of potential organ donors.
"Patients who have not been declared dead by neurological or cardiac determination of death should not be considered for donation," according to HRSA. "Despite Dr. Miller's justification for this practice, we believe that the professional opinion of experts in the field is that the dead donor rule should remain sacrosanct."
Reference
- Miller FG, Truog RD. Rethinking the ethics of vital organ donations. Hastings Center Report 2008; 38(6):38-46.
Source
For more information about the ethics of vital organ donation, contact:
- Franklin G. Miller, PhD, Bioethicist, National Institutes of Health, Bethesda, MD. E-mail: [email protected].
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