The “dead-donor rule” is a name loosely used to denote two related and widely accepted ethical norms: “vital organs should only be taken from dead patients, and correlatively, living patients must not be killed by organ retrieval.” Youngner, S.J. Arnold, R.M., “Ethical, Psychological, and Public Policy Implications of Procuring Organs from Non-Heart-Beating Cadaver Donors,” JAMA, 269 (1993): 2769–74, at 2771. Although it is typically discussed as an ethical norm governing organ procurement, it is generally assumed that a violation of it, even with consent, would constitute euthanasia and violate state laws.CrossRefGoogle Scholar

President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Defining Death: Medical, Legal and Ethical Issues in the Determination of Death (Washington, D.C.: U.S. Government Printing Office, 1981): at 73. The Uniform Determination of Death Act (UDDA) was the product of the President's Commission.Google Scholar

Throughout this paper, I will refer to circulatory-respiratory (CR) criteria rather than to the more common cardiopulmonary criteria. Though this is somewhat more cumbersome, a rationale for this choice is provided in Shewmon, D.A., “Brainstem Death, Brain Death, and Death: A Critical Re-Evaluation of the Purported Equivalence,” Issues in Law and Medicine, 14 (1998): 125–45. D. Alan Shewmon writes: “Neither spontaneous heartbeat nor breathing through the lungs is essential for life (as cardiopulmonary bypass machines effectively prove), but circulation and chemical respiration are.” Id. at 126. Moreover, the term cardiopulmonary death might be taken by some to denote death of the heart and lungs, rather than death of the whole organism using CR criteria.Google Scholar

Although some (see infra note 5) had recommended that brain death provide the only criteria for determining death (whether directly diagnosed or inferred using CR criteria), the President's Commission stood by a bifurcated system of determining death. However, it appears that their rationale was that the public needed time to adjust to conceiving death in neurological terms, rather than that death could occur in the absence of brain death. See President's Commission, supra note 2, at 59.Google Scholar

This view is discussed in Defining Death as the “primary organ” rationale for brain death. See President's Commission, supra note 2, at 34. See generally Bernat, J.L. Culver, C.M. Gert, B., “On the Definition and Criterion of Death,” Annals of Internal Medicine, 94 (1981): 389–94; and Lamb, D., Death, Brain Death, and Ethics (London: Croom Helm, 1985). This view is also espoused by The Pontifical Academy of Science. See Chagas, C., Working Group on the Artificial Prolongation of Life and the Determination of the Exact Moment of Death (Vatican City: Pontifical Academy of Sciences, 1986).Google Scholar

See Lynn, J., “Are the Patients Who Become Organ Donors Under the Pittsburgh Protocol for ‘Non-Heart-Beating Donors’ Really Dead?,” Kennedy Institute of Ethics Journal, 3 (1993): 167–78.Google Scholar

See Institute of Medicine, Non-Heart-Beating Organ Transplantation: Medical and Ethical Issues in Procurement (Washington, D.C.: National Academy Press, 1997): at 40–41. The Institute of Medicine (IOM) study surveyed the sixty-three organ procurement organizations in the United States about their NHBD protocols. IOM received twenty-nine protocols. Apparently, nearly half did not mention a specific waiting time. Twelve specified waiting a few minutes (ranging from one to five), and several specified that procurement is to begin immediately after cardiac arrest is verified. IOM recommends a five-minute waiting period. However, it suggests that this waiting period could be shortened in the future. See id. at 60.Google Scholar

See Lynn, supra note 6; and Fox, R.C., “An Ignoble Form of Cannibalism: Reflections on the Pittsburgh Protocol for Procuring Organs from Non-Heart-Beating Donors,” Kennedy Institute of Ethics Journal, 3 (1993): 231–39.Google Scholar

This criticism is made of the IOM report, supra note 7, by Jerry Menikoff. See Menikoff, J., “Doubts About Death: The Silence of the Institute of Medicine,” Journal of Law, Medicine & Ethics, 26 (1998): 157–65. See also Cole, D., “Statutory Definitions of Death and the Management of Terminally Ill Patients Who May Become Organ Donors After Death,” Kennedy Institute of Ethics Journal, 3 (1993): 145–56, at 153; and Tomlinson, T., “The Irreversibility of Death: Reply to Cole,” Kennedy Institute of Ethics Journal, 3 (1993): 157–66, at 164. Both David Cole and Tom Tomlinson defend as adequate the Pittsburgh protocol's criteria for death, but express concerns that the donors will not be brain dead. Shewmon defends the use of a protocol similar to that recommended in this paper, but he explicitly claims that such donors are not dead. See Shewmon, supra note 3. Interestingly, a recent survey suggests that, within the transplant community, concepts of death have become so consciousness-oriented that only about 25 percent support procuring organs from a donor before brain death has been ascertained. This is true of a population in which 62 percent supported organ procurement from anencephalic and persistent vegetative state patients. See DuBois, J., “Ethical Assessments of Brain Death and Organ Procurement,” Journal of Transplant Coordination, (1999) (forthcoming).Google Scholar

See Cole, supra note 9.Google Scholar

Moreover, it could be argued, as does Ronald Dworkin, that those interpreting the UDDA need to regard the principle underlying the law more than what the framers of the law understood the principle to imply. See Dworkin, R., Freedom's Law: The Moral Reading of the American Constitution (Cambridge: Harvard University Press, 1996): at 7ff.Google Scholar

See Institute of Medicine, supra note 7.Google Scholar

See articles cited infra notes 14, 15.Google Scholar

See Youngner, S. Arnold, R., “The Dead Donor Rule: Should We Stretch It, Bend It, or Abandon It?,” Kennedy Institute of Ethics Journal, 3 (1993): 263–78; and Truog, R.D., “Is It Time to Abandon Brain Death?,” Hastings Center Report, 27, no. 1 (1997): 29–37. See also Emanuel, L.L., “Reexamining Death: The Asymptotic Model and a Bounded Zone Definition,” Hastings Center Report, 25, no. 4 (1995): 27–35; Halevy, A. Brody, B., “Brain Death: Reconciling Definitions, Criteria, and Tests,” Annals of Internal Medicine, 119 (1993): 519–25; and Fost, N., “The New Body Snatchers: On Scott's The Body as Property,” American Bar Foundation Research Journal, 3 (1983): 718–32.Google Scholar

Most people in this camp reject brain death as a sufficient criterion for death, but presumably view it as necessary. See Jonas, H., “Against the Stream: Comments on the Definition and Redefinition of Death,” in Beauchamp, T.L. Veatch, R.M., eds., Ethical Issues in Death and Dying (New Jersey: Prentice Hall, 2nd ed., 1996): 23–27; Byrne, P.A. O'Reilly, S. Quay, P.M., “Brain Death—An Opposing Viewpoint,” JAMA, 242 (1979): 1985–90; and Seifert, J., “Is 'Brain Death” Actually Death?,” Monist, 76 (1993): 175–202.Google Scholar

The distinction among concepts, criteria, and tests for death is made sharply in Gervais, K.G., “Advancing the Definition of Death: A Philosophical Essay,” Medical Humanities Review, 3 (1989): 7–19.Google Scholar

Clearly, these tests should change as our ability to detect loss of circulation and respiration improve, and our knowledge of the conditions that affect the ability to autoresuscitate. However, changes in tests will not affect the criteria defended here unless it turns out that the waiting times necessary, say, to verify the inability to autoresuscitate, coincide with brain death or are so long that they affect organ viability. Current evidence suggests that this is unlikely.Google Scholar

See “University of Pittsburgh Medical Center Policy and Procedure Manual,” Kennedy Institute of Ethics Journal, 3 (1993): A1–A25.CrossRefGoogle Scholar

See DeVita, M., “The Death Watch: Certifying Death Using Cardiac Criteria” (1999) (unpublished), cited here with permission. To paraphrase somewhat, the basic finding of Michael DeVita's study is the following. Nature seems to have established: (1) a fairly rigid and short time frame during which autoresuscitation is possible; (2) a less rigid and longer time frame during which clinical resuscitation following aggressive intervention is possible; and (3) a remarkably flexible and significantly longer time frame during which experimental and ex vivo resuscitation is possible. Regarding autoresuscitation, DeVita examines 112 reported cases as described in 7 studies across a 58-year period. In only two cases did spontaneous recovery occur after sixty-five seconds. Significantly, in both of these cases, the patients clearly had not met death criteria according to the Pittsburgh protocol. In the first, the patient was apneic but there was no evidence that circulation was absent; in the second, there was no apnea, suggesting that brain activity, and hence circulation, had not fully stopped. From this data, DeVita concludes that spontaneous recovery after two minutes is “extremely unlikely.”Google Scholar

See, for example, Menikoff, supra note 9. For a reply, see Potts, J.T. Jr. et al., Commentary, “Clear Thinking and Open Discussion Guide IOM's Report on Organ Donation,” Journal of Law, Medicine & Ethics, 26 (1998): 166–68. Perhaps the most significant aspect of this reply is that the committee members did what they thought they were asked to do. Specifically, they were asked by the Department of Health and Human Services to investigate the possibilities for non-heart-beating organ donation “… without violating prevailing ethical norms regarding the rights and welfare of donors.” See, Institute of Medicine, supra note 6, at 7. That the dead-donor rule is a prevailing ethical norm, at least within the relevant professional organizations, is attested to by the American Medical Association and the United Network for Organ Sharing. See American Medical Association, Code of Medical Ethics: Current Opinions with Annotations (Chicago: American Medical Association, 1996): at ¶ 2.06 (on prisoners), ¶ 2.162 (on anencephalics). See also Turcotte, J.G., “Transplantation: A Frontier for Bioethics and Bioscience,” in Phillips, M.G., ed., UNOS Organ Procurement, Preservation and Distribution in Transplantation (Richmond: UNOS, 2nd ed., 1996): 13–22, at 16.Google Scholar

President's Commission, supra note 2, at 32.Google Scholar

Id. at 58. The President's Commission explicitly addresses the concept of death as the moment when the soul leaves the body. This view was treated as possibly providing a standard for secular action, but as less desirable than the other concept of death, which was deemed more verifiable. Nevertheless, loss of psychophysical unity seems to imply precisely the reintroduction of this second concept of death. See id. at 42–43.Google Scholar

Indeed, it seems contradictory to say that death is both a process and an event. However, Viktor Frankl once asserted that the apparently contradictory views of the person presented by behavioristic and psychoanalytic psychology can be reconciled if one accepts that they present different dimensions of the person. He illustrates his dimensional ontology with the observation that a three-dimensional figure like a cylinder may cast contradictory two-dimensional shadows, for example, rectangular or circular—depending on the direction from which light is cast on it. See Frankl, V.E., The Will to Meaning (New York: Meridian, 1988): at 23. By conceiving death as one phenomenon with different dimensions, biological and metaphysical (spiritual), perhaps these contradictions may turn out to be only apparent.Google Scholar

See Kastenbaum, R.J., “Near-Death Reports: Evidence for Survival of Death?,” in Bailey, L.W. Yates, J., eds., The Near-Death Experience Reader (New York: Routledge, 1996): 245–64.Google Scholar

See Shewmon, supra note 3.Google Scholar

See Truog, supra note 14; and Jonas, supra note 15. Robert Truog and Hans Jonas argue that these common-sense signs of life at least suffice to prove that we cannot know that the brain dead are dead.Google Scholar

See Byrne, O'Reilly, Quay, supra note 15; Seifert, supra note 15; and Shewmon, supra 3. See also the consensus statement, “Wissenschaftler für ein verfassungsgemaess Transplantationsgesetz. Gegen die Gleichsetzung hirntoter Patienten mit Leichen,” in Hoff, J. In der Smitten, J., eds., Wann ist der Mensch tot? Organverpflanzung und ‘Hirntod’-Kriterium (Reinbek bei Hamburng: Rowohlt, 1995): 513–22.Google Scholar

On the debate in Japan, see Feldman, E.A., “Culture, Conflict, and Cost: Perspectives on Brain Death in Japan,” International Journal of Technology Assessment in Health Care, 10 (1994): 447–63.Google Scholar

Youngner, S.J. et al., “Brain Death and Organ Retrieval: A Cross-Sectional Survey of Knowledge and Concepts Among Health Professionals,” JAMA, 261 (1989): 2205–10, at 2209.Google Scholar

Youngner, S.J., “Some Must Die,” in Youngner, S.J. Fox, R.C. O'Connell, L.J., eds., Organ Transplantation: Meanings and Realities (Madison: University of Wisconsin Press, 1996): 32–55, at 46.Google Scholar

This argument is an inversion of an argument developed by Stephan Schwarz, who discusses the beginning of life. See Schwarz, S., The Moral Question of Abortion (Chicago: Loyola University Press, 1990). A similar argument is cited by the President's Commission:Google Scholar

See, for example, Moody, R.A. Jr., Life After Life (New York: Bantam Books, 1976).Google Scholar

Although many different experiences are sometimes lumped together under the heading of near-death experiences (NDEs), in this section the focal instances of NDEs are those arising from cardiac arrest with apnea and unconsciousness (so-called clinical death). Reference will be made only to the work of those authors who collected data systematically, who attempted to verify claims when possible, and who attempted to reduce NDEs to more familiar phenomena. For a general overview of NDEs, see Lundahl, C.R., ed., A Collection of Near-Death Research Readings (Chicago: Nelson-Hall Publishers, 1982). For a review of NDE research and of attempts to reduce NDE to more common events (say, hallucinations or false memories), see Kastenbaum, R.J., Death, Society, and Human Experience (Boston: Allyn and Bacon, 6th ed., 1998): Esp. ch. 14 (“Do we survive death?”). See also Schroeter-Junhardt, M., “A Review of Near Death Experiences,” Journal of Scientific Exploration, 7 (1993): 219–39.Google Scholar

Reflecting common usage in NDE literature, the term clinical death will sometimes be used to describe, in particular, cardiac arrest accompanied by apnea and loss of consciousness.Google Scholar

See Sabom, M.B., Recollections of Death: A Medical Investigation (New York: Harper & Row, 1982): at 52ff. [hereinafter Recollections of Death]. See also Sabom, M.B., “Physicians Evaluate the Near-Death Experience,” in Lundahl, supra note 33, at 89–109.Google Scholar

Ring, K., “Frequency and Stages of the Prototypic Near-Death Experience,” in Lundahl, supra note 33, 110–47, at 113. See also Ring, K., Life at Death: A Scientific Investigation of the Near-Death Experience (New York: Coward, McCann & Geoghegan, 1980).Google Scholar

Though using looser criteria than Michael Sabom and Kenneth Ring, a 1982 Gallup poll estimated that eight million persons in the United States have had a NDE. See Gallup, G. Jr., Adventures in Immorality (New York: McGraw-Hill, 1982).Google Scholar

Both Ring and Sabom address the claim that NDEs are like drug-induced hallucinations. See Ring, (1982), supra note 36; and Recollections of Death, supra note 35. The most developed reductionistic account of NDEs as being like drug-induced hallucinations is Siegel, R.K., “The Psychology of Life After Death,” American Psychologist, 35 (1980): 911–31. For a reply drawing on Ring's findings, see Gibbs, J.C., “The Near-Death Experience: Balancing Siegel's View,” American Psychologist, 36 (1981): 1457–58.Google Scholar

Though familiar with many aspect of resuscitation, in 80 percent of the cases, the non-NDE patients' accounts included obvious errors, such as describing medical resuscitation as involving mouth-to-mouth resuscitation, presenting misconceptions about cardiac massage (for example, as involving a blow to the back, hitting the solar plexus, massaging the heart muscle directly with one's hands), or misconceptions about cardiac defibrillation and how the electric shock is delivered. Most of Sabom's NDE group reported fairly nonspecific descriptions of the events surrounding resuscitation, claiming that their attention was more focused on the NDE event itself and the amazing emotions. However, what was reported by these groups appears consistent with what happened and no errors were found. In the six cases he examined in which specific descriptions were given, the reports appeared extremely accurate and veridical. See Recollections of Death, supra note 35.Google Scholar

In fact, the case against reductionist explanations is much stronger than these authors seem to notice, for the simple reason that dream states and other altered states of consciousness, such as trance and hypnosis, produce highly active, even if unusual, electroencephalogram (EEG) readings, whereas after fifteen seconds of cardiac arrest (the minimum time typical of Sabom's NDE patients), the EEG becomes isoelectric. See Guttmann, G., “Zur Psychophysiologie des Bewusstseins,” in Guttmann, G. Langer, G., eds., Das Bewusstsein. Multidimensionale Entwuerfe (New York: Springer-Verlag, 1992): 263–307; and Losasso, T.J. et al., “Electroencephalographic Monitoring of Cerebral Function During Asystole and Successful Cardiopulmonary Resuscitation,” Anesthesia and Analgesia, 75 (1992): 1021–24.Google Scholar

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I am not simply repeating the views of Tomlinson, supra note 9. Tomlinson defends the idea that the Pittsburgh protocol for NHBDs provides an ethical determination of death. However, he contrasts this with a determination of ontological death. Although I agree that the Pittsburgh protocol uses an ethically adequate notion of irreversibility, irreversibility is not a necessary characteristic of ontological death.Google Scholar

See DeVita, supra note 19. See also the “University of Pittsburgh Medical Center,” supra note 18, at Addendum 2 (“Literature References on Auto-resuscitation”).Google Scholar

Although a slim chance exists that my wife has an identical twin of whom I know nothing, marital fidelity does not require that I inquire into this before I go to bed with the person I take to be my wife. Moral certainty tolerates such slim chances, and, though it does lead to blunders from time to time, it does not lead to culpable blunders.Google Scholar

Truog, supra note 14, at 34.Google Scholar

I do not defend any particular NHBD protocol, nor do I provide an ethical analysis of NHBD protocols in general. My focus is on the possibility of diagnosing death using CR criteria and a waiting period sufficient to rule out autoresuscitation—when a licit do-not-resuscitate order is in place.Google Scholar

President's Commission, supra note 2, at 58.Google Scholar

Id. at 33 (stating “On this view, death is that moment at which the body's physiological system ceases to constitute an integrated whole”).Google Scholar

That the dispute over brain death continues seems indisputable. See supra notes 14, 15.Google Scholar

See Barnard, C., “Reflections on the First Heart Transplant,” South African Medical Journal, 72 (1987): 19–20.Google Scholar

See Gundry, S.R. et al., “Successful Transplantation of Hearts Harvested 30 Minutes After Death from Exsanguination,” Annals of Thoracic Surgery, 53 (1992): 772–5; and Gundry, S.R. et al., “Transplantation and Reanimation of Hearts Removed from Donors 30 Minutes After Warm, Asystolic ‘Death’,” Archives of Surgery, 128 (1993): 989–93.Google Scholar

This point was insisted on by Leon Kass, one of the first to promote brain death. See Kass, L.R., “Death as an Event: A Commentary on Robert Morison,” Science, 173 (1971): 698–703.Google Scholar

See, for example, Walker, J.A. et al., “Parental Attitudes Toward Pediatric Organ Donation: A Survey,” Canadian Medical Association Journal, 142 (1990): 1383–87; Farrell, M.M. Levin, D.L., “Brain Death in the Pediatric Patient: Historical, Sociological, Medical, Religious, Cultural, Legal, and Ethical Considerations,” Critical Care Medicine, 21 (1993): 1951–65; and Martinelli, A.M., “Organ Donation: Barriers, Religious Aspects,” AORN, 58 (1993): 236–52.Google Scholar

See Krumholz, H.M. et al., “Resuscitation Preferences Among Patients with Severe Congestive Heart Failure,” Circulation, 98 (1998): 648–55; and Stevenson, L.W., “Rites and Responsibility for Resuscitation in Heart Failure,” Circulation, 98 (1998): 619–22.Google Scholar

Caplan, A.L., “Problems in the Policies and Criteria Used to Allocate Organs for Transplantation in the United States,” Transplantation Proceedings, 21 (1989): 3381–87, at 3381.Google Scholar

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I possess anecdotal evidence that this already happens. After a critique of brain death was published in the bioethical literature, I—a bioethics consultant—received three letters from organ recipients, asking whether organ transplantation is immoral due to the source of donated organs.Google Scholar

See Dew, et al., supra note 56.Google Scholar

Among those who agree that physicians should never kill, some have asked whether it would be wrong to harvest vital organs prior to death if, in certain highly controlled situations, harvesting does not hasten death. (That is, they ask whether we could use a weak version of the dead-donor rule.) Two things can be said in response. First, proposals of this sort typically only arise because individuals do not accept brain death or the CR criteria proposed here for determining death of the human being. They then paint pictures in which a brain-dead patient (not dead according to their criteria) is put on cardiopulmonary bypass, the heart is removed, and then the patient is allowed to die as cardiopulmonary life-support is withdrawn. See Luetz, M., “Organspende ist keine Toetung auf Verlangen,” in Hoff, In der Smitten, supra note 27, at 496–99. Alternatively, they describe a situation in which a NHBD has kidneys removed prior to death, but at a point when loss of kidneys will not cause death, because the heart has stopped beating and anoxia will kill the patient. See Shewmon, supra note 3. I disagree that such donors are not already dead. Because such donors are the only candidates in which vital organs could theoretically be procured without hastening death, it follows that there are no such cases. Second, some of the concerns that lead one to respect the dead-donor rule may also lead one to reject use of the weak version of the dead-donor rule. At least in the scenario depicted by Luetz, a cause of death is still introduced, one that hastens the strictest medical irreversibility of the state of CR loss—a form of irreversibility that is essential to death in their accounts. Thus, the issues of dominion and public perception again arise.Google Scholar