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The American Journal of Bioethics Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/uajb20
Should We Scrap the Dead Donor Rule? John Robertson
a
a
University of Texas Published online: 21 Jul 2014.
Click for updates To cite this article: John Robertson (2014) Should We Scrap the Dead Donor Rule?, The American Journal of Bioethics, 14:8, 52-53, DOI: 10.1080/15265161.2014.929755 To link to this article: http://dx.doi.org/10.1080/15265161.2014.929755
PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http:// www.tandfonline.com/page/terms-and-conditions
The American Journal of Bioethics
Pope, T. M. 2013. Clinicians may not administer life-sustaining treatment without consent: Civil, criminal, and disciplinary sanctions. Journal of Health & Biomedical Law 9(2): 213–296. Taylor, K. 2014. State pregnancy exclusions are bad law. Online symposium on the Munoz and McMath cases. Available at: http://thebioethicsprogram.wordpress.com/2014/02/05/statepregnancy-exclusions-are-bad-law
Taylor, K. A. 1997. Compelling pregnancy at death’s door. Columbia Journal of Gender and Law 7(1): 85–165. Woodward, A. 2014. Lege committee backs bill to keep pregnant women on life support. Gambit: Best of Neworleans.com, April 28. Available at: http://www.bestofneworleans.com/gambit/ medical-child-support/Content?oidD2426925
Should We Scrap the Dead Donor Rule? Downloaded by [University of Louisville] at 22:50 02 February 2015
John Robertson, University of Texas Franklin Miller and Robert Truog (2014) argue that total brain death as a definition of death is biologically incorrect. They perceive a supported brain dead individual as still having biologically integrative functions such as hormonal balance, control of temperature, and the ability to heal wounds, fight infection, and even gestate a fetus. To them the concept is a legal fiction that should be scrapped for a more honest conversation about how to facilitate vital organ procurement. James Bernat (2014) and other scholars have proposed an organism as-a-whole approach to death, which they believe that total brain criteria of death would satisfy. The Bernat camp also argues that brain death is so well accepted nationally and internationally that whatever confusion exists can be cured by increased education and more biophilosophical analysis (Bernat 2014; Magnus et al. 2014). One implication of the Truog and Miller approach is the need to dump the “dead donor rule” (DDR) so that vital organs can be retrieved before the individual is biologically dead (Miller and Truog 2008; Robertson 1999; Truog and Miller 2014). As an ethical concept, the DDR protects against harming or wronging persons. The DDR also has a legal dimension. If the organ donor is not dead, removing vital organs would cause death and potentially be punishable as homicide. For vital organ procurement to occur legally under their approach, the DDR would have to be changed to be inapplicable to biologically alive brain-dead individuals on the ground that they lack interests and thus are neither harmed nor wronged by causing their biologic death by organ removal. The authors also think that scrapping the DDR would improve the coherence of donations after circulatory death (DCD) by allowing individuals to make advance directives that would permit vital organ removal when they have reached a state in which life-sustaining treatment is withheld (Miller and Truog 2008; Truog and Miller 2014). This would avoid the problem they think
exists in DCD. Once treatment is withheld and the heart stops for 2–5 minutes, the stoppage is considered irreversible because neither patient nor family have consented to resuscitation. If they had, the heart could still be resuscitated. The argument here is essentially one about truth or consequences, as the authors note elsewhere (Miller and Truog 2008). The authors are uncomfortable with the legal fictions of brain death and irreversibility in DCD, and think that more honesty would eliminate fictions without necessarily lowering organ supply. In scrapping the DDR in whole-brain death and DCD, one should keep in mind the implications of doing so. It would mean accepting the premise that death could be caused when an individual suffers no setback in interests. Whole-brain death is an example of such a case, but so are cases of anencephaly, persistent vegetative states, and perhaps other situations. A person could no longer actively murder a brain dead, anencephalic, or PVS patient because although alive, they lack the capacity to experience the harm or wrong that conscious individuals ordinarily would. Nor would it prevent doctors with proper consent from taking patients’ organs and thereby causing biologic death, regardless of whether patients are on life support at the time. Of course, the revision of the DDR could be limited to whole-brain death alone and none of the others. But to deny it to the other cases would be to maintain a fiction that those individuals have interests when they have none. With regard to DCD, Miller and Truog argue for allowing organs to be removed before biologic death has occurred when the individual has made an advance directive to have treatment withheld (it is unclear whether the individual would also have to consent to death by vital organ removal) (Miller and Truog 2008). Alternatively, a proxy could make the decision. In essence, someone who is alive and presumably has interests at that point (if they do not, then why require the advance directive?) may waive them at Time 2 when incompetent on the basis of a
Address correspondence to John Robertson, University of Texas, School of Law, 3508 Bridle Path, Austin, TX 78703, USA. E-mail: [email protected]
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Brain Death
competent Time 1 directive. But this expands further the universe of direct killings, in this case by advance directives. Imminent death has never justified active killing, but it would here and by advance directive, not contemporaneous competent choice. The idea that Time 1 directives represent the interests or wishes of an incompetent individual at Time 2 is itself a legal fiction. It may well describe what a Time 1 individual would want done if competent at Time 2 to say (if that is the case, the person could say so directly). At Time 2 the individual is not competent and has a different set of interests than the person had at Time 1. A Time 1 competent directive is prone to Time 1 bias and thus error at Time 2 for what would best serve the Time 2 person’s interests or wishes (Dresser and Robertson 1989). The conflation of Time 1 and Time 2 wishes/interests is a deeply embedded fiction in bioethical, legal, and policy thinking. It is as much a legal fiction as Miller and Truog claim that brain death is. Like brain death as legal death, it might not often lead to different outcomes, but sometimes it will. This is evident in the claim by many in the Mu~ noz case that maintaining a pregnancy once a woman was dead violated her rights (Robertson 2014). Reopening the conversation about brain death may indeed be useful, but it will lead into deeper and even more troubling waters. Trading one fiction for another may be desirable, but fiction still there is. Attempts to
August, Volume 14, Number 8, 2014
recabin the new limits might work, but one can also question whether scrapping the DDR is worth the effort, particularly if there are other plausible accounts of why brain death might be death and the concept is now so widely accepted. &
REFERENCES Bernat, J. L. 2014. Whither brain death? American Journal of Bioethics 14(8): 3–8. Dresser, R. S., and J. A. Robertson. 1989. Quality of life and nontreatment decisions for incompetent patients: A critique of the orthodox approach. Law, Medicine & Health Care 17(4): 234–245. Magnus, D. C., B. S. Wilfond, and A. L. Caplan. 2014. Accepting brain death. New England Journal Medicine 370(10): 891–894. Miller, F. G., and R. D. Truog. 2008. Rethinking the ethics of vital organ donation. Hastings Center Report 38(6): 38–46. Robertson, J. A. 1999. The dead donor rule. Hastings Center Report 29(6): 6–14. Robertson, J. A. 2014. Advance directives, pregnancy, and brain death. Bill of health. Available at:http://blogs.law.harvard.edu/ billofhealth/2014/03/24/advance-directives-rights-and-braindeath-pregnancies Truog, R. D., and F. G. Miller. 2014. Changing the conversation about brain death. American Journal of Bioethics 14(8): 9–14.
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The American Journal of Bioethics Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/uajb20
Should We Scrap the Dead Donor Rule? John Robertson
a
a
University of Texas Published online: 21 Jul 2014.
Click for updates To cite this article: John Robertson (2014) Should We Scrap the Dead Donor Rule?, The American Journal of Bioethics, 14:8, 52-53, DOI: 10.1080/15265161.2014.929755 To link to this article: http://dx.doi.org/10.1080/15265161.2014.929755
PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http:// www.tandfonline.com/page/terms-and-conditions
The American Journal of Bioethics
Pope, T. M. 2013. Clinicians may not administer life-sustaining treatment without consent: Civil, criminal, and disciplinary sanctions. Journal of Health & Biomedical Law 9(2): 213–296. Taylor, K. 2014. State pregnancy exclusions are bad law. Online symposium on the Munoz and McMath cases. Available at: http://thebioethicsprogram.wordpress.com/2014/02/05/statepregnancy-exclusions-are-bad-law
Taylor, K. A. 1997. Compelling pregnancy at death’s door. Columbia Journal of Gender and Law 7(1): 85–165. Woodward, A. 2014. Lege committee backs bill to keep pregnant women on life support. Gambit: Best of Neworleans.com, April 28. Available at: http://www.bestofneworleans.com/gambit/ medical-child-support/Content?oidD2426925
Should We Scrap the Dead Donor Rule? Downloaded by [University of Louisville] at 22:50 02 February 2015
John Robertson, University of Texas Franklin Miller and Robert Truog (2014) argue that total brain death as a definition of death is biologically incorrect. They perceive a supported brain dead individual as still having biologically integrative functions such as hormonal balance, control of temperature, and the ability to heal wounds, fight infection, and even gestate a fetus. To them the concept is a legal fiction that should be scrapped for a more honest conversation about how to facilitate vital organ procurement. James Bernat (2014) and other scholars have proposed an organism as-a-whole approach to death, which they believe that total brain criteria of death would satisfy. The Bernat camp also argues that brain death is so well accepted nationally and internationally that whatever confusion exists can be cured by increased education and more biophilosophical analysis (Bernat 2014; Magnus et al. 2014). One implication of the Truog and Miller approach is the need to dump the “dead donor rule” (DDR) so that vital organs can be retrieved before the individual is biologically dead (Miller and Truog 2008; Robertson 1999; Truog and Miller 2014). As an ethical concept, the DDR protects against harming or wronging persons. The DDR also has a legal dimension. If the organ donor is not dead, removing vital organs would cause death and potentially be punishable as homicide. For vital organ procurement to occur legally under their approach, the DDR would have to be changed to be inapplicable to biologically alive brain-dead individuals on the ground that they lack interests and thus are neither harmed nor wronged by causing their biologic death by organ removal. The authors also think that scrapping the DDR would improve the coherence of donations after circulatory death (DCD) by allowing individuals to make advance directives that would permit vital organ removal when they have reached a state in which life-sustaining treatment is withheld (Miller and Truog 2008; Truog and Miller 2014). This would avoid the problem they think
exists in DCD. Once treatment is withheld and the heart stops for 2–5 minutes, the stoppage is considered irreversible because neither patient nor family have consented to resuscitation. If they had, the heart could still be resuscitated. The argument here is essentially one about truth or consequences, as the authors note elsewhere (Miller and Truog 2008). The authors are uncomfortable with the legal fictions of brain death and irreversibility in DCD, and think that more honesty would eliminate fictions without necessarily lowering organ supply. In scrapping the DDR in whole-brain death and DCD, one should keep in mind the implications of doing so. It would mean accepting the premise that death could be caused when an individual suffers no setback in interests. Whole-brain death is an example of such a case, but so are cases of anencephaly, persistent vegetative states, and perhaps other situations. A person could no longer actively murder a brain dead, anencephalic, or PVS patient because although alive, they lack the capacity to experience the harm or wrong that conscious individuals ordinarily would. Nor would it prevent doctors with proper consent from taking patients’ organs and thereby causing biologic death, regardless of whether patients are on life support at the time. Of course, the revision of the DDR could be limited to whole-brain death alone and none of the others. But to deny it to the other cases would be to maintain a fiction that those individuals have interests when they have none. With regard to DCD, Miller and Truog argue for allowing organs to be removed before biologic death has occurred when the individual has made an advance directive to have treatment withheld (it is unclear whether the individual would also have to consent to death by vital organ removal) (Miller and Truog 2008). Alternatively, a proxy could make the decision. In essence, someone who is alive and presumably has interests at that point (if they do not, then why require the advance directive?) may waive them at Time 2 when incompetent on the basis of a
Address correspondence to John Robertson, University of Texas, School of Law, 3508 Bridle Path, Austin, TX 78703, USA. E-mail: [email protected]
52 ajob
August, Volume 14, Number 8, 2014
Downloaded by [University of Louisville] at 22:50 02 February 2015
Brain Death
competent Time 1 directive. But this expands further the universe of direct killings, in this case by advance directives. Imminent death has never justified active killing, but it would here and by advance directive, not contemporaneous competent choice. The idea that Time 1 directives represent the interests or wishes of an incompetent individual at Time 2 is itself a legal fiction. It may well describe what a Time 1 individual would want done if competent at Time 2 to say (if that is the case, the person could say so directly). At Time 2 the individual is not competent and has a different set of interests than the person had at Time 1. A Time 1 competent directive is prone to Time 1 bias and thus error at Time 2 for what would best serve the Time 2 person’s interests or wishes (Dresser and Robertson 1989). The conflation of Time 1 and Time 2 wishes/interests is a deeply embedded fiction in bioethical, legal, and policy thinking. It is as much a legal fiction as Miller and Truog claim that brain death is. Like brain death as legal death, it might not often lead to different outcomes, but sometimes it will. This is evident in the claim by many in the Mu~ noz case that maintaining a pregnancy once a woman was dead violated her rights (Robertson 2014). Reopening the conversation about brain death may indeed be useful, but it will lead into deeper and even more troubling waters. Trading one fiction for another may be desirable, but fiction still there is. Attempts to
August, Volume 14, Number 8, 2014
recabin the new limits might work, but one can also question whether scrapping the DDR is worth the effort, particularly if there are other plausible accounts of why brain death might be death and the concept is now so widely accepted. &
REFERENCES Bernat, J. L. 2014. Whither brain death? American Journal of Bioethics 14(8): 3–8. Dresser, R. S., and J. A. Robertson. 1989. Quality of life and nontreatment decisions for incompetent patients: A critique of the orthodox approach. Law, Medicine & Health Care 17(4): 234–245. Magnus, D. C., B. S. Wilfond, and A. L. Caplan. 2014. Accepting brain death. New England Journal Medicine 370(10): 891–894. Miller, F. G., and R. D. Truog. 2008. Rethinking the ethics of vital organ donation. Hastings Center Report 38(6): 38–46. Robertson, J. A. 1999. The dead donor rule. Hastings Center Report 29(6): 6–14. Robertson, J. A. 2014. Advance directives, pregnancy, and brain death. Bill of health. Available at:http://blogs.law.harvard.edu/ billofhealth/2014/03/24/advance-directives-rights-and-braindeath-pregnancies Truog, R. D., and F. G. Miller. 2014. Changing the conversation about brain death. American Journal of Bioethics 14(8): 9–14.
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