CH A PT ER FIV E
IM PLICAT ION S FOR POLICY
A N D PRA CT ICE
I
n this report, our fundamental question has been, A re there ade-
quate biological and philosophical reasons for considering patients who have
suffered total brain failure to be deceased human beings? We have
sought to respond to this question in a careful, systematic fashion.
In Chapter Two, we began our re-examination of the neurological
standard for death by clarifying key terms. In Chapter Three, we
described the condition of “total brain failure” (commonly called
“brain death” or “whole brain death”), and we explored certain
clinical and pathophysiological findings that were unavailable to the
authors of earlier public accounts of that condition. In Chapter
Four, we presented two possible answers to the central question of
the report: first, a position that rejects the neurological standard for
death on the grounds that it is not possible to know with certainty
that an individual with total brain failure is truly dead; and second, a
position that defends the neurological standard, arguing that it is
possible to know that death has occurred in such cases. Also in
Chapter Four, we sought to support this second position with a
novel— and, we think, more secure— rationale. Each of the two po-
sitions has implications for policy and practice, especially with
regard to organ procurement. Here in Chapter Five, we offer an
analysis of these implications.
I. Rejecting the N eurological Standard: The Implications of
Position One
The neurological standard for death is a well-entrenched standard,
having been enshrined in law and applied in medical practice for
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more than two decades. To conclude now that this standard is
flawed and ultimately indefensible would have serious repercus-
sions, especially for the policy and practice of organ procurement.
No patient whose heart continues beating (and whose vital organs
thus remain healthy) could be declared dead; there would be no le-
gally recognized “heart-beating cadavers.” In response to such an
altered approach, one of two paths could be followed: Either the
link between death and eligibility for donation could be severed, or
the law could be fashioned so that vital organs are only procured
from non-heart-beating donors. Both of these possible paths re-
quire further elaboration.
A. Severing the Link Between Death and Eligibility for
Organ Donation
The first path would entail weakening or abandoning the so-called
“dead donor rule.” This could be done in such a way that the same
patients who are currently designated as heart-beating donors could
continue to be so designated. But they would not be seen as dead in
the eyes of the law; they would instead be described as living but
“heart-beating-donation-eligible.” Two steps would be required to
accomplish this change.
O ne step would be to revise the state laws pertaining to the deter-
mination of death so that the only recognized standard would be
the traditional cardiopulmonary standard. The law would then de-
clare that only those individuals who have suffered an irreversible
loss of cardiopulmonary function (spontaneous or assisted) are
dead.
The other step would be to revise the anatomical gift acts that are in
effect in the various states. These laws specify how individuals can
express their wishes regarding organ donation if the circumstances
of their death make them medically eligible. Currently, these laws
uniformly stipulate that gifts of tissue, organs, or whole bodies
CHAPTER FIVE | 71
should take effect “upon or after death.” * With the suggested revi-
sion, “upon or after death” would be changed to “upon or after the
point at which donation eligibility is reached.” And “donation eligi-
bility” would be defined as “the point at which, according to
accepted medical standards, an individual has suffered irreversible
cessation of all functions of the entire brain, including the brain-
stem.” In other words, the language currently found in the various
determination of death acts (which are modeled on the UD D A),
would be transferred to the anatomical gift acts, and as a result, a
patient would not need to be declared dead in order to be declared
eligible for designation as a heart-beating donor.
This solution would seem to preserve the integrity of the organ
procurement system by maintaining the customary boundaries be-
tween those who can be used as organ donors and those who, on
ethical grounds, must be protected from such use. Moreover, it
would accomplish this while setting aside the dubious claim that
either clinicians or policymakers know for certain where the line
between life and death is.
D espite these attractions, however, this solution is deeply disturb-
ing, for it embraces the idea that a living human being may be used
merely as a means for another human being’s ends, losing his or her
own life in the process. For good reason, many recoil from the
thought that it would be permissible to end one life in order to ob-
tain body parts needed by another. For many observers, organ
transplantation as practiced today is ethically defensible precisely
because only those who are already dead are eligible to become do-
nors. In sum, abandoning the “dead donor rule” would entail
dismantling the moral foundations of the practice of organ dona-
tion.
* The legality of donation from a healthy, living donor is not addressed by the
anatomical gift acts. Y et the practice of living donation suggests a possible “mid-
dle course,” not explored in this report, which would permit the removal of a
single kidney from a donor who is near death— just as it is permissible for an in-
dividual to give a single kidney while alive and healthy.
