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The Ethics of Organ Transplantation
The Catholic University of America PressCopyright © 2011 The Catholic University of America Press
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Chapter OnePrimum Non Nocere—A Contrarian Ethic?
Primum non nocere freely translates to "first, do no harm," and has been attributed to Hippocrates; the principle is clearly embodied in his original oath for physicians. It is noteworthy that Hippocrates, in the fifth century B.C., saw the importance of invoking the "gods," which were all that he knew, in his oath. Significantly, modern revisions of the oath acknowledge no superior authority. These revisions, according to Paul McHugh, professor of psychiatry at Johns Hopkins University Medical Center, tend to be more self-centered than patient-centered, and are riddled with vague precept and abstraction. Nevertheless, original Hippocratic principles remain immensely important for any civilized society, and especially for the medical profession, since physicians have been entrusted with unique power over patients. Each patient's life, health, and human dignity should always be the physician's first priority, and these considerations should retain primacy over supposed societal and communal benefits—features of modern oath revisions—in order to avoid the egregious errors of Third Reich medicine. An important corollary is that, in particular instances, the physician may not accommodate a patient's wishes if those wishes are not consonant with the patient's own best interests. This corollary is becoming increasingly important as essentially suicidal means to attain actual or perceived benefits become more widely accepted and largely unrecognized. Relevant here would be cases in which sincerely altruistic patients or patient surrogates consent to, or request, vital organ removal in a way amounting to death by organ donation. The objective of this essay is to provide an overview of some of the factors adversely affecting the practice and ethics of medicine in our time, especially in the organ transplantation field. At issue in this presentation is not whether burdensome medical treatments should be continued, which is clearly not an ethical requirement, but rather whether persons are truly dead, and can be treated accordingly by burial, cremation, or vital organ removal—a very definite pressing ethical question.
I will first consider changes in the way the diagnosis of death has been made, beginning in the 1960s. Declarations of death are now being made on the basis of prognosis of death, which is equivalent to prediction of death but quite different from a death diagnosis, which is a factual statement about an existing condition. As part of my examination of definitions of death, I will then describe several imaging tests considered confirmatory and suggested by some as affording an added degree of confidence to the uncertain "diagnosis" of "brain death." These include radionuclide studies, four vessel cerebral angiography, magnetic resonance angiography, and transcranial Doppler studies. None of these is without either significant patient risk or interpretation pitfalls, or both, so that their clinical usefulness and compatibility with good end-of-life care is at least questionable.
Next, I will consider in situ organ preservation procedures performed on organ donors in order to maintain organ viability for transplantation, and determine whether these procedures do, or do not, harm patients physically or in their human dignity.
Finally, I will take a look inside and outside medicine to see how ethical confusion and "convenient fictions" of recent decades can be symptoms of a broader cultural illness infecting language and thinking in general—characterized by physician-novelist Walker Percy as the "disease of abstraction."
The Diagnosis of Death
The concept of brain death as the criterion for the reality of the death of the person was formally introduced in 1968 by a report of the Ad Hoc Committee of the Harvard Medical School. The two stated reasons for the new criterion were (1) to make available needed hospital beds, and (2) to facilitate obtaining organs for transplantation. Increasing the donor organ pool has turned out to be the primary reason. The Harvard report was lacking in supporting studies, patient data, and scientific evidence, and cited no scientific references. Its abstract, imprecise, unscientific terminology was less than convincing. Robert Truog, professor of medical ethics, anesthesia, and pediatrics at Harvard, has written in a recent issue of the Journal of Law, Medicine and Ethics that among the costs of using the "brain death" criterion has been the fact that "the medical profession has had to pay the price of self-delusion. Despite continual commentary in the medical literature about the inconsistencies and incoherence of the concept of brain death, medical professionals have had to defend the concept in order not to jeopardize the benefits of organ transplantation." Brain death criteria are too vague, variable, and disputed to support any conclusion based on scientific method requirements.
If technological advancements are to be ethical on a natural law basis, they must be validly based and do no harm. Causing death, even of severely debilitated persons, by vital organ removal for the benefit of others does do harm, and not just to the victim, but to everyone, because of its dehumanizing effect on civilized society. Without the sanctity of life principle, quality of life cannot be maintained for long. Without sanctity of life, everyone is vulnerable to exploitation by any person or entity with greater power, usually the state, but also any person or profession under state influence or control. However, time-honored sanctity of life principles of medical practice are being eroded in order to preserve or prolong lives of organ transplant recipients, which is, of course, an undisputed laudable goal. What is disputed is a broad-based replacement of the "first, do no harm" principle by an autonomous, utilitarian, outcome-based ethic. This ethical shift was unambiguously set forth in a 1970 California Medicine editorial entitled "A New Ethic for Medicine and Society." The author of that editorial made the radical, but not unprecedented, observation that an emerging "quality of life" ethic, made possible by scientific and technological developments, would make it necessary and acceptable to place relative value rather than absolute value on human life.
Organ transplantation per se is a good and desirable healing pursuit, and has been encouraged by Pope John Paul II and the Pontifical Academy of Sciences, with the key proviso that death be established with moral certitude before vital organs are removed. The pope has been very emphatic about the surpassing importance of protecting the dignity of the human person, especially organ donors, in the quest for health benefits for transplant organ recipients.
An unfortunate dilemma arises from the fact that the most useful vital donor organs are those from patients farthest from clearly diagnosable death, living donors actually being the best for optimum donor organ viability. This dilemma is the source of serious conflicts of interest between physicians, organ donors and their families, and organ recipients. Various attempts to isolate these conflicts from life-and-death decision making have not been entirely effective. Additionally, financial interests of healthcare and health-care-related industries as well as government and regulatory entities can result in subordination of institutional ethos to transplant practices, particularly in transplant centers.
In view of the fact that a certain diagnosis of death is a prerequisite for licit removal of unpaired vital organs, and since a prognosis, which is a prediction, is not the same as a diagnosis, which is a statement of fact, no level of certitude about a prognosis of death can justify taking human life.
Instances of incoherence, inconsistency, confusion, and disagreement about the diagnosis of death in modern medical literature are beyond enumeration. A review of the sequential development of criteria for declaration of death, used or proposed since the 1960s, suggests strong bias toward legalizing death by organ removal to deal with a very real worldwide donor organ shortage. We can consider four stages in this development.
First Stage—Cardiorespiratory Arrest
Criteria in use up to the 1960s, which included no heartbeat, no respiration, no blood circulation in retinal vessels, and, after an interval, rigor mortis, provide a reliable diagnosis of death, rather than a prognosis or prediction. Available for transplant in this circumstance would be heart valves, corneas, bone marrow, bones, tendons, veins, and skin.
Second Stage—Brain Death
Formally introduced in 1968 by the Harvard Medical School Ad Hoc Committee, this criterion was occasioned by improvements in resuscitative and supportive measures, especially mechanical ventilation, and, more importantly, the pressing need for donor organs. It requires irreversible (a term with prognostic overtones) cessation of whole-brain function, including brainstem function, as determined by appropriate and variable (unscientific terminology) periods of observation. In practice, there are wide variations in criteria used to determine brain death. Confusion between diagnosis and prognosis is a significant problem. Furthermore, proposals about why "brain-dead" patients should be considered dead have never been persuasive. Truog takes the position that "although it may be perfectly ethical to remove vital organs for transplantation from patients who satisfy the diagnostic criteria of brain death, the reason it is ethical cannot be that we are convinced they are really dead." The inescapable conclusion must be that "brain death" criteria fall far short of providing the moral certitude of death required before vital organs may be ethically removed.
Additionally, several authors, including brain death proponents, have pointed out the very significant fact that so-called brain-dead patients retain important brain functions such as hormone secretion and thermoregulation. One author has asked, "On what principled ground can one maintain, for example, that although brainstem reflexes are relevant to the determination of death, neurohormonal regulation is not?" It seems far from irrelevant that no serious suggestion is made for testing all brain functions, including neurohormonal and thermoregulatory functions, at least in part, because such testing would be difficult, costly, and time-consuming, and would delay organ procurement. It is of course true that practical and ready applicability of testing procedures and test reliability are frequently inversely proportional, but ethical life-and-death issues require that test reliability, to the point of moral certitude, take precedence over practical applicability of test methods.
Third Stage—Donation after Cardiac Death
Donation after cardiac death, or DCD—previously NHBD, non-heart-beating donation, or the Pittsburgh protocol—was introduced in 1993 at the University of Pittsburgh Medical Center and is the most increasingly used method for organ removal to meet the growing demand for donor organs not filled by "brain death" criteria. Death is declared on the basis of "irreversible" cessation of respiration and heartbeat as determined after an appropriate period of observation (two minutes selected as their recommendation by UPMC physicians). The Society of Critical Care Medicine has recommended that at least two minutes of observation is required and that more than five minutes is not recommended as the waiting period; the hope is to avoid the possibility of spontaneous resumption of circulation or autoresuscitation, and at the same time minimize undesirable warm ischemia injury to organs.
It is enlightening to note that the Report of a National Conference on Donation after Cardiac Death states, "If data show that autoresuscitation [spontaneous resumption of circulation] cannot occur, and if there is no attempt at artificial resuscitation, it can be concluded that respiration and circulation have ceased permanently." But no one would be concerned about the possibility of resuscitating a corpse, so a very important question here is, "Why the need to be assured that no artificial resuscitation will be attempted if the diagnosis of death is accurate and the patient is truly dead?" In a recent New England Journal of Medicine article entitled "Organ Donation after Cardiac Death," the author provides a succinct answer: "Although such patients may be so near death that further treatment is futile, they are not dead." This is not to say that these patients' lives must be maintained by the use of burdensome or extraordinary methods, but it is to say they are not dead, and that medical science cannot, at least for the present and in view of more recent research, diagnose death by current "cardiac death" criteria with any degree of certainty approaching the moral certitude required to justify vital organ removal.
Cardiac criteria for declaring death have been used to obtain transplantable kidney, liver, lung, and pancreas, but their more recent use for heart transplantation presents additional incoherence in the DCD scenario. This relates to the asystole (absent heartbeat) irreversibility requirement for "cardiac death." When "cardiac death" declaration has been used to obtain a heart for transplantation, the "irreversibly" stopped heartbeat is reversed in the transplant recipient. One of a number of bioethics specialists has clearly stated the problem: "It is impossible to transplant a heart successfully after irreversible stoppage: if a heart is restarted, the person from whom it was taken cannot have been dead according to cardiac criteria. Removing organs from a patient whose heart not only can be restarted, but also has been or will be restarted in another body, is ending a life by organ removal."
Additionally, if an "appropriate" two-minute observation of absent heartbeat were truly diagnostic of death, then CPR on most patients with cardiac arrest would be completely futile and should not be instituted because these patients would already be dead. No one supports that approach.
Fourth Stage—Abandon the Dead Donor Rule
First proposed as early as 1997 by Truog, pressure to abandon the dead donor rule arises from several principal sources:
1. The increasing need for donor organs suitable for transplantation.
2. The fact that vital organs most suitable for transplantation are those least affected by compromised blood flow and warm ischemia, that is, those from donors farthest from a certain diagnosis of death.
3. Frustration, controversy, skepticism, and self-delusion among medical professionals about whether "brain dead" and "cardiac dead" patients are really dead, and importantly, potential legal liability in view of current laws against killing living patients.
4. A fourth, and maybe more significant, factor is the fact that, despite the rhetorical emphasis on human dignity prevalent today, respect for human dignity is being eroded on a variety of cultural fronts, commonly in the name of compassion, tenderness, and tolerance. One result, among others, has been a growing number of Americans willing to be actively euthanized in order to be organ donors, an ethical change having profound effects on life-and-death decisions by shifting emphasis from ethical principles to autonomy and consent. This is precisely what is being proposed to again address the mounting organ donor shortfall, this time by abandoning the "dead donor rule" and adopting "consent" rather than death to justify vital organ removal. Considering consent the only condition for ethical action is clearly problematic. It would be difficult even to estimate the extent of perfidy possible when consent becomes the basis of morality. Further, it has even been suggested that consent for organ harvesting be eliminated because of the pressing need for transplantable organs. This inevitably leads to suggestions that the state's right of eminent domain should be invoked. Unfortunately, in practice, the "dead donor rule" is already being circumvented by a variety of stratagems.
Excerpted from The Ethics of Organ Transplantation Copyright © 2011 by The Catholic University of America Press. Excerpted by permission of The Catholic University of America Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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