Death, Dying and Donation: Organ Transplantation and the Diagnosis of Death I H Kerridge, P Saul, M Lowe, J Mcphee, D Williams
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89 ORIGINAL ARTICLE J Med Ethics: first published as 10.1136/jme.28.2.89 on 1 April 2002. Downloaded from Death, dying and donation: organ transplantation and the diagnosis of death I H Kerridge, P Saul, M Lowe, J McPhee, D Williams ............................................................................................................................. J Med Ethics 2002;28:89–94 Refusal of organ donation is common, and becoming more frequent. In Australia refusal by families See end of article for authors’ affiliations occurred in 56% of cases in 1995 in New South Wales, and had risen to 82% in 1999, becoming the ....................... most important determinant of the country’s very low organ donation rate (8.9/million in 1999). Leading causes of refusal, identified in many studies, include the lack of understanding by families of Correspondence to: Dr I H Kerridge, Bone brain death and its implications, and subsequent reluctance to relegate the body to purely instrumental Marrow Transplant status. It is an interesting paradox that surveys of the public continue to show considerable support for Coordinator, Haematology organ donation programmes—in theory we will, in practice we won’t (and don’t). Department, Royal Free In this paper we propose that the Australian community may, for good reason, distrust the concept of Hospital, Pond Street, and criteria for “whole brain death”, and the equation of this new concept with death of the human Hampstead, London NW3 2QG: being. We suggest that irreversible loss of circulation should be reinstated as the major defining [email protected]. characteristic of death, but that brain-dead, heart-beating entities remain suitable organ donors despite nhs.uk being alive by this criterion. This presents a major challenge to the “dead donor rule”, and would Accepted for publication require review of current transplantation legislation. Brain dead entities are suitable donors 22 August 2001 because of irreversible loss of personhood, accurately and robustly defined by the current brain stem ....................... criteria. Even the dead are not terminally ill any more.1 onja migrated to Australia as a young woman, married this point is clear that they do not. (Reported cases of “recov- here and raised five children. Now 50 years old, she has ery” in adults invariably reflect misapplication of brain death worked hard in the family milk bar, and has paid little criteria or inadequate testing conditions leading to incorrect S 3 attention to her health. Last evening she complained of a diagnosis rather than “recovery from death”. )Wedo http://jme.bmj.com/ headache, and shortly after became unconscious. She was maintain, however, that the concepts that underlie brain death brought to hospital by ambulance, and admitted to intensive are not biologically plausible, may be unacceptable to the care, where she was put on a mechanical ventilator. It’s now community at large and are inconsistent with the present legal midnight, and the intensive care unit specialist is explaining approaches. Organ donation is a socially valuable process, to Sonja’s husband Fehmi, in a room crowded with sobbing however the current law appears to be out of step with what is men and women, that Sonja has had a massive brain haemor- actually happening (or current practice is out of step with the rhage, as a result of which her brain is dead. And so Sonja is law). dead, though her heart is still beating due to life support sys- on September 30, 2021 by guest. Protected copyright. tems. She asks: “Did Sonja ever discuss organ donation”? The terms “life” and “death” are necessary for many aspects THE ORIGINS OF BRAIN DEATH of society. Definitions of death are required to define murder The term “brain death” was introduced in 1965 following a and manslaughter, to allow wills to be read, to allow burial or report of renal transplantation from a heart-beating but cremation, and to allow grieving to commence. In this paper “brain-dead” donor,4 and was defined formally in 1968 in the we will critically examine one specific function of the term report of the Ad Hoc Committee of the Harvard Medical “death”—death as a prerequisite for donation of vital organs School.5 In 1981 the Report of the Medical Consultants on the for transplantation. Diagnosis of Death to the US President’s Commission recom- In the 1970s and 80s, the concept of “brain death” was pro- mended that the criteria for diagnosis of brain death should be posed as one means by which all of the requirements for a seen as synonymous with the definition of death of the organ- definition of death could be reconciled. Brain death is now ism as a whole.6 widely accepted in Western countries. According to Truog: Since the publication of this report, clinicians have come to recognise that the essential physiological component of brain At a practical level, [the concept of brain death] has death is the death of the brain stem, and the diagnosis of brain been successful in delineating widely accepted ethical death is now made by examining the function of nerves that and legal boundaries for the procurement of vital organs originate in the brain stem (“brain stem criteria”).7 Confirma- for transplantation. Despite this success, however, there tory tests such as electroencephalogram (EEG), cerebral have been persistent concerns over whether the concept angiography, and nucleotide radiography have been exten- is theoretically coherent and internally consistent. sively investigated but are not generally required in adults, as Indeed, some have concluded that the concept is funda- each has significant limitations and none provide a “gold mentally flawed and that it represents only a “superficial standard” with greater accuracy than clinical examination. and fragile consensus”.2 The criteria of and tests required for the accurate diagnosis of brain death in children, particularly premature neonates, is In this paper we do not dispute the fact that people correctly more controversial and there may be a wider role for diagnosed with brain death never recover, as the evidence on confirmatory testing in this setting.8 The terms “brain death” www.jmedethics.com 90 Kerridge, Saul, Lowe, et al and “brain stem death” are now frequently used definition of death, it should probably not be entirely depend- 9 interchangeably. ent upon the state of present technology. J Med Ethics: first published as 10.1136/jme.28.2.89 on 1 April 2002. Downloaded from There is also some evidence that the brain continues to THE “DEAD DONOR RULE” regulate some bodily functions in patients who meet the criteria for brain death.18 Between 22% and 100% of The major impetus for medical, community, and legal accept- brain-dead patients in different studies have evidence of some ance of brain death is the need for organ donation from “beat- control of water and electrolyte balance19 and many have other ing heart” donors. A declaration of brain death is only used for evidence of neurological regulation of hormonal secretion.20 this purpose, and is not a prerequisite for treatment Nests of living cells may survive in the brains of some withdrawal for other reasons. As Professor Lovell, a pioneer of brain-dead people21 and at least one case has been recorded in renal transplantation in Australia, remarked: “The law did which a patient had persistent cortical activity despite having enter in a specific way ...asthetransplantation programme absent brain stem function.22 Some EEG activity may be developed, because of the desire for a legal definition of death present in up to 40% of patients23 and, while this may not rep- that was relevant to obtaining kidneys from cadavers”.10 In resent “meaningful” function, in some cases such activity may 1968 a Japanese surgeon conducted the first heart transplant be compatible with cortical function.24 Patients who satisfy operation in that country and was charged with unlawfully brain-death criteria may also respond to painful stimuli (such killing both the donor and the recipient. Since that time clini- as surgical excision)—suggesting the existence of integrated cians and policy makers have responded to the possibility of neurological function at a brain level25 and many may exhibit such events by insisting that donors of vital organs first be spontaneous or reflex movements.26 declared dead. This became known as the “dead donor rule”. In light of these findings, the argument that the brain stem The dead donor rule solved the problem that organ donation is the sole or crucial regulator of bodily integration, and that appeared to involve a form of murder, and the redefinition of this function is entirely eliminated in patients with brain death as “brain death” allowed organ transplantation to con- death, does not withstand critical scrutiny. tinue. IS THE BRAIN STEM IRREPARABLE OR BRAIN DEATH DOES BRAIN DEATH PROVIDE A BIOLOGICALLY IRREVERSIBLE? PLAUSIBLE DEFINITION OF DEATH? Developments in intensive care therapeutics are not the only It has been argued that death should be defined as the thing to challenge the notion of the irreversibility of loss of moment beyond which integration of the organism is lost. brain function. Recent research into human embryonic stem Some advocates of brain stem criteria for death argue that, for (ES) cells has, for the first time, made neural tissue repair a humans, the critical integrating system of that organism is possibility. Embryonic stem cells are clonal cell lines derived represented by the brain stem, and that clinical death should from the inner cell mass of the blastocyst or preimplantation therefore be equated with destruction of the brain stem.11 embryo. They are pluripotent cells, that is, they are immature When the concept of brain death was first introduced it was cells with the capacity to proliferate and differentiate into all argued that death of the brain stem inevitably implied the cell lines, including myocardial and skeletal tissue, haemato- imminent death of the whole body.