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.
72 | CO NTRO VERSIES IN THE D ETERMINATIO N O F D EATH

This solution is worrisome on other grounds as well. Having cre-

ated a category of still-living but “heart-beating-donation-eligible”
individuals, we might have difficulty resisting pressure to expand
the kinds of patients that could be included in that class. In fact,
many who support moving away from the dead donor rule argue
that such a step could be a boon to society by making more individu-
als available as heart-beating donors. If a patient need not be dead
in order to be eligible for such life-ending organ donations, where
would the ethical line be drawn? It has been suggested that the
moral warrant for the practice could be supplied by ensuring that
the would-be donor is “beyond harm.” 1 In other words, the princi-
ple of non-maleficence, of “do no harm,” rather than the dead
donor rule, would provide the needed ethical safeguards for procur-
ing organs from the living— for example, from patients in persistent
vegetative states or from infants with anencephaly.

Y et this proposal is both conceptually suspect and practically dan-

gerous. What exactly does “harm” mean in this context, and how
do we know who is beyond harm? Might there be a temptation to
interpret the class of “patients who can still be harmed” more and
more narrowly in order to increase the number of donation-eligible
human beings? For very sound practical reasons, the K antian pro-
hibition against treating living human beings merely as means and
not also as ends has been fundamental to the ethics of both bio-
medical research and clinical medicine, at least since the
promulgation of the Nuremberg Code in 1947. If that principle is
worth preserving, especially in the context of organ procurement,
we would do better to restrict donation-eligibility to patients who
have died, as determined by clinical tests for “total brain failure,”
more commonly known as “whole brain death.”

B. Taking Vital Organs Only from N on-H eart-Beating

Donors (Controlled DCD)

In Chapter Six we shall more thoroughly explore the practice of

controlled donation after cardiac death (controlled D CD ), which is
currently undergoing a resurgence. With this practice, organs are
procured from non-heart-beating donors who have been declared
dead in accordance with the traditional cardiopulmonary standard.
 CHAPTER FIVE | 73

For those who argue that patients with total brain failure cannot,
with certainty, be declared dead, controlled D CD offers a viable
alternative source for much needed human organs.

Today, controlled D CD is offered as an option to families when an

injured relative does not qualify to be a heart-beating donor— that
is, as an opportunity to combine the generous act of organ donation
with the often painful decision to forgo life-sustaining treatment for
a living, but close-to-death family member. A patient diagnosed
with total brain failure is considered dead by today’s legal standard,
and therefore eligible for organ donation immediately; but for those
who regard such a patient as a still living human being, controlled
D CD would be the only ethical way for that patient’s organs to be
donated. From this perspective, an appropriate reform might be,
not to abandon the dead donor rule, but to require that all injured
patients for whom organ donation is contemplated become asysto-
lic before allowing organ procurement surgery to begin.

Two objections have been lodged against this approach. The first
has to do with the practical consequences of this approach for or-
gan procurement: it is likely that far fewer organs of high quality
would be recovered. Because organs procured from heart-beating
donors are less subject to ischemic injury, the claim is often made
that obtaining such organs is a key factor in successful transplanta-
tion, especially in terms of graft survival and patient survival. In
other words, organs procured from donors who have been declared
dead in accordance with the traditional cardiopulmonary standard
are not usually as “healthy” as those procured from heart-beating
donors, nor do they last as long or permit their recipients to live as
long.

Plausible as this claim might sound, however, recent studies have

put it in doubt it by showing that patient and graft survival rates (at
one and five years) for kidneys taken from controlled D CD donors
are comparable to the rates for kidneys from heart-beating donors.2
The same cannot be said of livers obtained by controlled D CD ;
graft and patient survival rates for livers recovered from controlled
D CD donors are not as good as the rates for livers from heart-
beating donors.3 At this time, hearts, lungs, intestines, and pancreata
74 | CO NTRO VERSIES IN THE D ETERMINATIO N O F D EATH

are only rarely transplanted from patients whose hearts have

stopped beating; thus, comparisons of these key rates are more dif-
ficult to make. In weighing these concerns about the comparative
healthiness of organs from heart-beating and non-heart-beating do-
nors, it is important to consider one possible result of restricting
organ procurement to controlled D CD : such a restriction might
well stimulate research into better methods of procuring and pre-
serving organs and thereby lead to improvements in outcomes
associated with organs from non-heart-beating donors.

A second objection raised against an exclusive reliance on con-

trolled D CD as a means to procure organs concerns certain ethical
and philosophical problems that we shall discuss in greater depth in
Chapter Six. Here, it is important to mention that restricting organ
donation to controlled D CD donors would inevitably intensify the
demands on the physicians, nurses, and other health professionals
responsible for such organ procurement. They would find it all the
more challenging to responding, responsibly and compassionately,
to concerns and needs for palliative care and family support while
protecting potential donors from abuse. Such a restriction would
also require wider acceptance of the idea that living individuals can
and should be designated as organ donors prior to the removal of
life support; in addition, the death of these donors (and the avail-
ability of their organs for transplant) would have to be more
regularly declared in the expeditious way that this procedure re-
quires.* Thus enhanced public education, discussion, and
deliberation would be crucial prerequisites to any expansion of the
use of controlled D CD in the ways suggested here.

* The concerns of various sorts of health care providers about D CD practice

were surveyed in this 2006 report: M. S. Mandell, et al., “National Evaluation of

Healthcare Provider Attitudes Toward O rgan D onation after Cardiac D eath,”
C rit C are M ed 34, no. 12 (2006): 2952-8. A useful description of a conscientious
program of palliative care for D CD donors and their families can be found in: C.
M. K elso, et al., “Palliative Care Consultation in the Process of O rgan D onation
After Cardiac D eath,” J Palliat M ed 10, no. 1 (2007): 118-26.