Abstract
The papers in this issue stem from a symposium on the relationship between brain death and organ transplantation held in Swansea in October 2011, and which was funded by the Wellcome Trust (Award reference: 096455/Z/11/Z). The symposium was attended by a range of people interested in the topic from different perspectives, including those who represent the interests of people in need of donor organs, health-care professionals involved in the process, those with a philosophical and ethical interest in the area, people representing a so-called ‘lay’ perspective and those with a theological perspective on the issues. Of the papers in this special issue, three are versions of papers presented on the day, and the other is contributed by a philosopher sceptical about the concept of presumed consent.
As is explained in the first paper by Dr Peter Matthews,
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a hospital consultant involved in the process of organ donation, organ transplantation is of particular concern to people living in Wales at the present time. This is because the Welsh Assembly Government is planning to introduce a system of presumed consent or ‘opt out’ to citizens living in Wales. In the rest of the UK those who wish to donate organs after their death can formally register their wish via an online organ donor register (
Matthews’ paper 1 provides the medical context for the subsequent papers and provides an invaluable resource for those outside the medical practice of organ transplantation. Of particular interest, in my opinion, is the distinction drawn between donation after brain death (DBD) and donation after cardiac death (DCD). As Matthews explains, usage of the latter method is increasing in the UK and elsewhere. It involves a planned withdrawal of life-sustaining measures with the intention of causing the heart to stop beating. Once this has occurred for a period of five minutes (according to UK guidelines), then the process of organ removal can begin. Of ethical concern is the fact that the management of the patient is altered in order to facilitate the removal of the organs for transplantation, but another concern is the coherence of referring to two types of death, brain stem and cardiac. One of the primary cases in support of defining human death by reference to death of the brain stem was claimed to be that that system is the ‘critical system’ and so once that irreversibly loses the capacity to function, the human being considered as a biological organism is dead. So the true significance of absence of heart beat – as is induced in DCD – is that it is a sign of imminent or existing brain stem death. The cessation of heartbeat itself does not constitute death since it is conceivable that if efforts were made to resuscitate such a person, the heart may re-commence. Thus the patient might not yet be ‘brain stem dead’ even after the five-minute period of induced cessation of heartbeat. So contrary to the distinction claimed in the DCD/DBD terminology which is now routinely employed, there really is only one definition of death, and that, officially at least in the UK, is brain stem death. This priority of brain death over absence of cardiac function is something which has been stressed by those who have defended a brain stem definition of death over the years. 2,3 Thus it was claimed that humans have always implicitly subscribed to the view that brain stem death is the death of the human being, but they mistakenly equated that with permanent loss of cardiac function. Their mistake was to fail to see that the significance of loss of cardiac function is tied to its effects on the brain stem: without oxygenated blood, brain stem death will occur.
Professors Truog and Miller, 4 however, mount a severe challenge to the attempt to define death by reference to irreversible loss of brain function. As they explain, the definition of death which informs medical practice in the USA differs from that which is invoked in the UK – something which is puzzling from a lay perspective of course, since if defining death is a merely scientific matter, one would expect countries which share the same scientific tradition to agree on something so fundamental. But the medical establishments in the two countries do at least agree that irreversible loss of brain function is both necessary and sufficient for human death. As they explain, the main rationale for this is that if one considers the human being as a biological organism, irreversible loss of brain function is thought to entail the irreversible loss of the capacity to function as an organism as a whole. Yet, cases in which pregnant women, diagnosed as brain dead (according to UK or USA standards), are sustained in order to help the fetus continue to develop in the womb seriously call into question the assumption that a functioning brain is necessary for possession of the capacity for holistic function. It is argued that if that assumption were true, the bodies of such women would simply decay, and necrosis would set in, irrespective of how much effort was made to sustain them. This does not happen apparently, and this seems to show that the capacity for holistic function can be present even after brain death is diagnosed, and therefore that brain death does not equate to the death of the human organism. So, in order to sustain the practice of organ transplantation it would seem necessary to remove vital organs from patients who are dying but, nonetheless, not yet dead – to violate the ‘dead donor rule’ as Truog and Miller put it. 4 In light of this, they advance the radical idea that removal of vital organs from living donors, who have agreed that this can be done, is the most defensible solution to the problem.
The paper by Dr David Albert Jones 5 provides a Catholic perspective on the problems which ensue if one accepts that defining death in relation to irreversible loss of brain function is implausible, in particular what implications will this have for the practice of organ transplantation. Perhaps unsurprisingly, his response to the problem differs strikingly from that offered by Truog and Miller; 4 unsurprisingly since the removal of vital organs from living humans violates Catholic theological doctrine, as he explains. Following a detailed appraisal of possible responses, which interestingly tracks the evolution of Alan Shewmon's influential work on this topic, he concludes by comparing current practice in relation to organ procurement with euthanasia. In other words, that just as the latter is unethical, so too is the former. For obvious reasons this is also a very radical conclusion since it seems to imply organ transplantation cannot be justified from the viewpoint of Catholic doctrine. When the demand for donor organs is increasing, such a conclusion is not likely to be well received by many in need of a donor organ.
The final paper is a careful analysis of the concept of presumed consent by Dr Hugh Upton. 6 He argues that appeals to presumed consent in the context of opt-out are essentially counter-factual in nature; thus they are of the form: ‘if x were able to express their view, they would consent to donate their organs’. But Upton shows that such contexts cannot plausibly be claimed to involve the consent of the donor, and in any case, all the ethical force carried by the counter-factual stems from considerations which are not necessarily consent related – notably, the benefits which those in receipt of donor organs can expect to derive from the organs.