The Dead Donor Rule (DDR) is an ethical guideline that requires that organ donors be pronounced dead before the removal of any organs may occur. The DDR is meant to protect donors from potential exploitation by ensuring that the removal of organs does not cause the donor’s death. Proponents of the DDR also claim that the DDR ensures public trust in the transplant system while also acting as a safeguard for the most foundational medical doctrine, to do no harm [1]. In 1980, the DDR was codified into law by the Uniform Definition of Death Act (UDDA), which recognizes both neurological and cardiological conditions as methods to determine death and has since been adopted by all 50 states [2].
Recently, some ethicists and medical professionals have begun advocating to have the DDR removed as the standard for organ transplant policy. Opponents to the DDR argue that the DDR employs faulty medical standards to define death, limiting the pool of transplantable organs and impeding upon the patient's last wish to become a donor. The faulty medical standards in the DDR also create a paradox where a patient may be declared dead in one state, but alive in another further confusing loved ones during a stressful and difficult time.
Opponents to the DDR claim that, under the current criteria to declare a donor’s death, we have been using patients that are not truly dead to perform transplants. However, these opponents argue that retrieving organs from someone who is declared dead by neurological or cardiological conditions is still ethical, but not because the patient is “dead.” Dr. Truog, practitioner of pediatric intensive care and a Director at the Harvard Center for Bioethics says, “although it may be ethical to remove vital organs from these patients, [those pronounced dead on the basis of neurologic or cardiac conditions], we believe that the reason it is ethical cannot convincingly be that the donors are dead” [3].
Determining the time of the donor’s death is often done on the basis of neurological conditions, commonly understood as brain death. A person who is considered brain dead, also known as brain stem death, has “irreversible cessation of all functions of the entire brain, including the brain stem” [4]. The reasoning behind this definition of death is that “since death is the breakdown of the organism as a whole, and the functioning of the brain is necessary for the integration of the various cells, tissues, and organs into a single organism—total brain death is the death of the human being” [5].
The diagnosis of brain death resulted from the development of modern critical care medicine. Before modern critical care medicine, death was determined when a heart beat could no longer be detected [6]. Since the brainstem controls most automatic body functions, like your heartbeat, a lack of brain stem function means that the patient will require ventilation, along with other mechanical support, to prevent total organ failure. While modern machinery may keep the patient’s organ’s alive, brain death is irreversible and the patient is considered legally dead after brain death is determined [7]. It is important to note that brain death is different from a coma or vegetative state, both of which a patient may recover from [6].
The determination of brain death is not made lightly or quickly by doctors. Doctors first do tests to ensure that the observed symptoms are not being caused by other factors, such as hypothermia or an underactive thyroid gland. If these things are ruled out, then doctors begin tests to determine if brain stem death has occurred. The tests are repeated twice at different time intervals and no doctors involved in the tests can also be a part of the transplant team [7]. If the patient does not respond to any of the tests, then a diagnosis of brain death is made.
While this criteria may appear medically and ethically sound, opponents to the DDR have noted that “brain dead” patients’ brain stems often retain the ability to regulate homeostatic functions, such as temperature control or hormone secretion, suggesting that not all brain function has been lost [8]. To counter, some doctors argue that complete and total brain function does not need to be lost for a patient to be declared dead. As long as brain functions essential to maintaining the integration of body functions are absent, then the patient should be pronounced dead since there is a limit to how long their physical body can be supported on life support, although that limit may be several years.
The other method for determining death is circulatory conditions. Donation after cardiac death (DCD) occurs when a patient “has suffered devastating and irreversible brain injury and may be near death, but does not meet formal brain death criteria” [9]. In this situation, family members or medical proxy consent to have the patient be taken off life support allowing a “natural death” to occur [9]. When the heart stops beating, which can take a few minutes to over an hour, the physician observes the patient to ensure autoresuscitation does not occur. If circulation does not return, then the patient is pronounced dead and the transplant team begins organ removal [8]. Due to the lack of circulation, this method may make organs slow to start or non-viable for transplantation.
Opponents to the DDR have noted another flaw in the DDR’s criteria for death. For death by cardiac conditions, the irreversible cessation of cardiac function is necessary to pronounce death. If that is the case, then how is it possible that medical professionals are able to successfully transplant a heart used to pronounce one patient dead into the chest of another? Ethicists and advocates for death by cardiac conditions argue that this approach is ethical and that these patients can be declared dead because consent has been given to not resuscitate them [3].
The flaws observed in the DDR’s definition of neurological and cardiological conditions for death suggest that we have been using patients that are still alive to perform transplants. While this may feel creepy and raise concerns about donor rights violations, the flaws within the DDR open up the possibility for a new system of organ procurement that relies on gaining patient consent to withdraw life support and harvest organs. Proponents of the DDR can argue that these flaws suggest that these patients are severely disabled and their lives must be protected; however, obtaining patient consent is already incorporated into the DDR under its criteria for death by cardiological conditions. Dr. Truog echoes this sentiment advising medical professionals to instead “emphasize the importance of obtaining valid informed consent for organ donation from patients or surrogates before the withdrawal of life-sustaining treatment in situations of devastating and irreversible neurologic injury” [3]. With a different legal and ethical standard, he believes vulnerable patients can still be kept safe and doctors could still allow “people to die in the way they want to die while still being able to fulfill their request to donate” [7].
While there are several underlying concerns that have led medical professionals to question the ethicality and medical accuracy of the DDR. The central concern, though, is that, not only is our legal and medical definition of death wrong, but that we created an inaccurate definition of death that hinders the successful procurement of vital organs for transplant. Caution should be taken, though, in making the argument that the DDR needs to be updated simply because we cannot gain access to as many viable organs for transplantation. While it is important to consider how we can help the most people, that desire alone is not a viable medical or ethical argument that justifies revising the DDR.
Perhaps the most central issue to consider, though, when evaluating the DDR, is under what conditions do we consider there to be life and under what conditions do we consider life to be worth living. Whatever the next steps may be, it will take time to shift policy and medical consensus, which may give scientists enough time to invent other methods to obtain and replace organs.
Citation:
Dutchen, S. (n.d.). A fine line: Is it time to reconsider the dead-donor rule? Harvard Medicine. Retrieved February 19, 2023, from https://hms.harvard.edu/magazine/ethics/fine-line
Schweikart, S. J. (2020). Reexamining the flawed legal basis of the “Dead Donor Rule” as a foundation for organ donation policy. AMA Journal of Ethics, 22(12). https://doi.org/10.1001/amajethics.2020.1019
Truog, R. D., & Miller, F. G. (2008). The dead donor rule and organ transplantation. The Social Medicine Reader, Volume I, Third Edition, 359(7), 259–262. https://doi.org/10.1215/9781478004356-039
Nikas, N. T., Bordlee, D. C., & Moreira, M. (2016). Determination of Death and the Dead Donor Rule: A Survey of the Current Law on Brain Death. The Journal of medicine and philosophy, 41(3), 237–256. https://doi.org/10.1093/jmp/jhw002
Lee, P. (2015, January 15). Total brain death is a valid criterion of death. Ethika Politika. Retrieved February 19, 2023, from https://www.ethikapolitika.org/2015/01/15/total-brain-death-valid-criterion-death
Nitkin, K. (2017, November 7). The challenges of defining and diagnosing brain death. John Hopkins Medicine. from https://www.hopkinsmedicine.org/news/articles/the-challenges-of-defining-and-diagnosing-brain-death
Overview of Brain Death. NHS . (n.d.). from https://www.nhs.uk/conditions/brain-death/
Sade R. M. (2011). Brain death, cardiac death, and the dead donor rule. Journal of the South Carolina Medical Association (1975), 107(4), 146–149.
Transplant Center. (n.d.). Donation after cardiac death (DCD). UC Davis Health. Retrieved February 17, 2023, from https://health.ucdavis.edu/transplant/nonlivingdonors/donation-after-cardiac-death.html