Memorandum by David Wainwright Evans,
MD, FRCP Emeritus Consultant Cardiologist
1. The procurement of organs for transplantation,
as currently practised, is unethical on several counts.
2. To be capable of continuing function
in different bodies, organs must be removed from donors' bodies
while they are still alive. So-called "brain stem dead"
patients who are designated as organ donors are self-evidently
alive. This is obvious to parents who are asked for permission
to remove their son's organs while—mechanical ventilation
being continued—he remains in that state. Finding him warm,
reactive and respiring, still perfused by his naturally beating
heart, they find it difficult to accept that he is regarded as
already dead by those preparing to operate upon him—to procure
the wanted organs—with no change in his condition apart
from drug-induced paralysis to facilitate the surgery. It should
occasion no surprise that many parents, faced with that request,
refuse their permission—particularly those who have been
fully and frankly informed about the possibility of remaining
brain function which it is beyond the power of the clinical tests
routinely used to detect.
[They may refuse their permission despite their
son's name being on the NHS Organ Donor Register in the readily
understandable belief that, when he registered, he did not envisage
being in that state when used as an organ donor (vide infra).]
3. Many doctors (and philosophers) do not
accept that patients who meet the UK "brain stem death"
criteria—or the various "brain death" criteria
in other countries—are dead. They acknowledge that those
patients are, indeed, manifestly alive. In terms of the usual
concept of death—the absence of all signs of life—such
patients cannot reasonably be diagnosed and certified as dead.
Most of the world's doctors would not, or could not, certify them
dead. The more conservative members of the medical profession
are not prepared to certify death until there are not only no
remaining signs of life but also positive signs of death.1
4. Nevertheless, there are some doctors
who continue to be willing to certify those clearly living patients
dead as a legally necessary preliminary to removal of their organs
for transplantation. They do so on the basis of the simple bedside
tests prescribed (in the UK by the Department of Health in its
Code of Practice) despite the increasing body of evidence2, 3,
4 that they are inadequate for the purpose. When introduced, over
30 years ago, those tests were claimed to have the power to diagnose
death of the brain—it being tacitly assumed that "brain
death", as clinically diagnosed, would be a generally acceptable
basis for certifying death while the body remained alive—but
that claim was clearly spurious, most of the brain not being tested
at all (or, indeed, testable) and the prescribed tests lacking
the power even to diagnose death of the brain stem as a matter
of fact.2 The fallacy of that initial claim was formally recognized
in 19955 but the certification of death for transplant purposes
has continued on essentially the same clinical assessment, albeit
on a novel conceptual basis which, insofar as it has been debated
at all, has not found wide philosophical acceptance.
5. This new concept of human death is comprised
of only two elements—the irreversible loss of the capacity
to breathe spontaneously and the irreversible loss of the capacity
for consciousness. It was claimed5—without presentation
of evidence in support—that death of the brain stem sufficed
to ensure those permanent losses and that the prescribed tests
sufficed to establish death of the brain stem. There is, in fact,
no sound scientific evidence to support those claims. The prescribed
test for irreversible loss of ventilatory function (breathing)
is dangerous6 but not sufficiently stringent, and there is no
means of testing for residual capacity for consciousness. Consciousness
is not understood. The notion that its arousal depends crucially
and exclusively on elements of the brain stem looks increasingly
insecure in light of recent neuroscientific observations. Those
elements are, in any case, not specifically testable. They can
be said to be permanently functionless only by implication, ie
when it is certain that the whole of the brain stem is truly dead—a
state which it is beyond the power of the prescribed tests to
establish.2
6. The most plausible basis for the continuing
certification of "death for transplant purposes" on
the diagnostic criteria currently in use is that they are widely
believed to suffice for the purpose of forecasting death—the
final cessation of blood circulation and respiration (plus the
passage of a sufficiently long period of time)—within a
few hours or days, despite the continuation of mechanical ventilation
and other life-support measures. That is of course, in reality,
their use as prognostic guidelines. But their confusion
with criteria for the actual diagnosis of death is essential
to current organ transplantation practice and is backed by the
Department of Health in the Code of Practice which governs those
procedures. It may be that the doctors involved come to terms
with this inappropriate use on the premise that, although the
patients they certify dead on that basis are not de facto
dead, it doesn't matter because they have no chance of recovery.
This is the utilitarian view—that they are "dead enough"
for transplant purposes and that it is in some distorted sense
"unethical" to await de facto death because to
do so would render the wanted organs unviable. But it ignores
the inescapable fact that, as the donor is not really dead—whatever
his status on paper—he is killed by the operation for removal
of his organs.7
7. In recent years, concerns about this
pragmatically useful confusion have been raised worldwide, and
there have been calls, eg by Truog and Robinson,8 to face the
facts and provide them to potential organ donors without obfuscation.
Only then would it be possible to know the true level of public
support for transplantation practice and only on that fully and
frankly informed basis would consent to the use of one's body
as a source of organs—to be removed while in some clearly
defined and frankly described pre-mortal state—be valid.
I have welcomed such proposals for full and frank information
of the public about such procedures9 as a long overdue precaution
against possible misunderstanding of the offer made by registration
as a potential organ donor under the system currently in use.
8. As things are at present, some 14.6 million
people have signified their willingness to be used as organ donors
after death by adding their names to the NHS Organ Donor
Register. The official leaflet promoting such registration describes
the register as "a nationwide confidential list of people,
held on a central computer database, who are prepared to be organ
donors after their death". The application forms record
a request that "after my death" the specified
organs "may be used for the treatment of others". The
same crucial wording "after my death", without
explanation or qualification, appears on Donor Cards and on Driving
Licence Application Forms.
9. There is, at least, the possibility that
some of those signifying their willingness to be used as organ
donors by ticking boxes on those forms have a different understanding
of the meaning of the term "after my death" from
that of the organ procurement team and the two doctors who will
certify them "dead" so that the operation can begin,
if their offer is ever taken up. It seems to me that the possibility
of so serious a misunderstanding must invalidate the offer. It
is, therefore, surprising that greater efforts have not been made
to clarify that crucial wording so that both parties to the offer
have an identical view of its meaning.
10. It is, indeed, rather likely that many
or even most people who "sign up" by ticking boxes on
the simple forms in use, eg on Driving Licence Applications, without
actively seeking further information, do so in the belief that
they will be dead in the commonly understood sense—pulseless,
not breathing, totally unreactive and, perhaps, cooling and stiffening—before
surgery to remove their organs will begin. I have heard that belief
expressed many times.
11. Others, who have taken the trouble to
seek more information about the procurement process, have understood
that certain tests of brain function must be done by two specially
authorized doctors before surgery can begin. They may say they
understand that this is to establish "brain stem death"
(still too often referred to as "brain death"), that
this means that there can be no further hope of useful recovery
whatever may be done, and that this justifies (indeed requires)
the withdrawal of life-support measures to allow death to occur.
[That was, of course, the stated purpose of the criteria when
they were introduced in 1976.] However, many of these registered
potential donors are under the misapprehension that mechanical
ventilation will be permanently discontinued, and the consequent
cessation of the heartbeat awaited, before they are subjected
to organ procurement surgery.
12. Registered donors in the categories
described in (10) and (11) above have not understood that they
will, in fact, still be very much alive when organ procurement
surgery begins and, indeed, during that procedure. They do not
realize, because it has not been made clear to them, that mechanical
ventilation is continued after the diagnosis of "brain stem
death", and kept going while the wanted organs are removed—which
may take several hours. In consequence of that continuing provision
of oxygen to the lungs, their hearts will be continuing to beat
naturally—maintaining the blood circulation throughout the
body, including parts of the brain, which are active to an unknown
degree. Their bodies will remain so reactive that muscle-paralysing
and anaesthetic drugs will be administered to facilitate the surgery—which
nevertheless causes inevitable bleeding and other (cardiovascular)
reflex responses. The latter are identical to those which, when
seen by anaesthetists during everyday therapeutic surgery, prompt
the administration of extra anaesthesia to alleviate the patient's
thereby expressed pain or distress.
13. The registered donors described above
have, at the very least, been misled by the unexplained term "after
my death". It might well be argued that they have been
actively deceived, given the continuing use of that term without
qualification or explanation despite many calls for its clarification
over the years. Whatever the interpretation of what might seem
that legally interesting aspect, it can be said with confidence
that at least some of those who have registered under the impression
that they will be truly dead—certainly without heartbeat—before
their organs are removed would not have done so if the relevant
facts pertaining to their offer had been made clear to them when
registering. If there is even one such registration on a false
premise, it must be a matter of concern—and there may well
be millions in that category. There is a case for contacting all
those registered to establish the scale of possibly false registrations.
14. The above refers to organ procurement
from patients pronounced "dead" on the so-called "brain
stem death" criteria specified in the current Code of Practice.
Possibly because of the low provision of transplantable organs
from that source, there is now a move towards procurement from
donors whose hearts have been allowed to stop for very brief periods,
eg two to five minutes, with or without restoration of the heartbeat
and circulation thereafter. This is no more than a sinister charade—aimed
at persuading people that death is being certified on the age-old
criteria (cessation of breathing and circulation) and conveniently
ignoring the fact that those criteria demanded the permanent
cessation of the blood circulation and a period of waiting thereafter
to ensure that irreversible destruction of the body is certainly
under way. Verheijde et al10 have recently exposed the
abuse of ethical principles involved in these resource-driven
developments.
15. If there is to be a truly ethical basis
for the procurement of organs for transplantation, there must
first be a fully and frankly informed public discussion and debate
about the various options capable of providing organs in a viable
state for the purpose. In practice—because procurement from
living, healthy donors offends against the fundamental "first,
do no harm" principle, and organs taken from unequivocally
dead people are no good for transplantation—these are limited
to the acquisition of organs from the dying. It may be that, when
all the relevant facts have been made clearly and universally
known, without obfuscation or concealment, some people will be
willing to allow removal of their organs for the sake of others
when they are, as certainly as can be known in the current state
of medical practice, doomed to die soon. Consent to donation on
that fully informed basis would seem to constitute an ethically
valid offer if the legal difficulties could be overcome.
16. Until we can be sure that everybody
who might be used as an organ donor has fully understood the nature
of that procedure, it cannot be presumed that they have consented
to such use merely because they have not registered objection.
In the present state of public knowledge about transplant procedures,
we are clearly very far from being able to make that assumption
of universal comprehension and approval.
References
1 Stuttaford T. Vital signs that ebb to an imperceptible
low. The Times 28 February 2007, p 3.
2 Evans DW, Hill DJ. The brain stems of organ
donors are not dead. Catholic Med Quarterly. 1989; 40:
113-121.
3 Beyond Brain Death : the case against brain
based criteria for human death. Potts M, Byrne PA, Nilges R (Eds),
Kluwer Academic Publishers, Dordrecht. 2000.
4 Finis Vitae. Is brain death still life?
De Mattei R (Ed) National Research Council of Italy. Rubbettino.
2006.
5 Review by Working Group of the RCP, endorsed
by the Conference of Medical Royal Colleges and their Faculties.
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6 Coimbra CG. Implications of ischemic penumbra
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7 Potts M, Evans DW. Does it matter that organ
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8 Truog RD, Robinson WM, Role of brain death
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9 Evans DW. Seeking an ethical and legal way
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attempts to redefine human death. Philosophy, Ethics and Humanities
in Medicine 2007; 2: 11 (29 June) http://www.peh-med.com/content/2/1/11.
10 Verheijde JL, Rady MY, McGregor J. Recovery
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transforming the paradigm for the ethics of organ donation. Philosophy,
Ethics & Humanities in Medicine 2007; 2: 8 (22 May) http://www.peh-med.com/content/2/1/8.
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