Should the “dead donor” rule be rescinded?


At Children’s Hospital in Denver, three babies recently had successful heart transplants from neurologically damaged donors who were not brain dead. The donors were removed from the ventilator in the operating suite, and their hearts were harvested within minutes after asystole.

In 2007, there were 793 cardiac-death donors (“non-heart-beating donors”), about 10 percent of all deceased donors, according to the United Network for Organ Sharing. Most recipients were adults who received a kidney or liver (Stephanie Nano, Associated Press 8/13/08).

Death statutes require the irreversible cessation of circulation and respiration or the irreversible cessation of brain functions. In the three controversial Denver cases, cessation of heartbeat was not irreversible; the hearts started up again after transplantation. One baby’s heart had been stopped for only 75 seconds. The only reason the donor could not have been resuscitated was the “do not resuscitate” order. It is not known how long a heart has to be stopped before “autoresuscitation” is impossible (Bernat JL. N Engl J Med 2008;359:670-673).

“Donor care” included placement of femoral venous and arterial sheaths, using local anesthesia; two heparin boluses of 100 U/kg and later 300 U/kg; sedation and analgesia considered appropriate for withdrawal of life support (fentanyl at a mean dose of 4 µg/kg and lorazepam at a mean dose of 0.1 mg/kg); and extubation.

Analgesic and sedating drug doses were stated to be lower than those used in infants who could not be considered for donation, and the heparin dose was within the range used for cardiopulmonary bypass (Bouck MM, et al. N Engl J Med 2008;359:709-714).

(The apnea test for brain death requires that the patient remain intubated, receive oxygen by continuous positive airway pressure to maintain saturation and an arterial pO2 >55 mm Hg, and be free of drugs that cause respiratory suppression.)

Boucek et al. note that using potential donors who die of cardiorespiratory causes could increase the donation rate by 70 percent (ibid.).

New England Journal of Medicine editorialists write that there is an “urgent need for more infant donors,” and that “meeting this need while being mindful of the ethical considerations has been challenging and complex” (Curfman GD, et al. N Engl J Med 2008:359:745-750). A free video roundtable on the ethical issues is available at

Bernat asks: “To what extent should society permit manipulation of an organ donor or alteration of the determination of human death for the good of organ recipients?”

Truog and Miller point out the difficulties posed by changing the definition of death to mean something other than “cold, blue, and stiff.” Many brain-dead patients retain neurologic functions such as the regulated secretion of hypothalmic hormones. If permanent unconsciousness is the justification for taking the organs, the same rationale should apply to patients in a persistent vegetative state.

“The reason it is ethical [to take the organs] cannot be that we are convinced they are really dead,” they write. “Irreversibility” means a “choice not to reverse.” Thus, instead of making unsupportable revisions of the definition of death, we should do away with the “dead donor” rule. At this point, it “has greater potential to undermine trust in the transplantation enterprise than to preserve it.” Instead, we should rely on “valid consent by the patient or surrogate” in order to “maximize the number and quality of organs available to those in need” (Truog RD, Miller FG. N Engl J Med 2008:359:674-675).

Some might consider Truog, and Miller to be “brain death deniers,” and argue against the right to choice of “criteria of death.” Offering “futile treatment” to a brain-dead patient to please the family might conflict with or undermine the “regulative ideals” of medicine. Accommodation to cross-cultural conflicts “has limits when it comes to real costs to others and society,” write Applbaum et al. Specifically, the definition of death is “not a matter of individual choice controlled by an advance directive or by medical surrogates” (Applbaum AI, et al. JAMA 2008;299:2188-2193).

It appears that, according to these views in prestigious medical journals, rights and ethical principles emanate from “society,” and can be changed by the accepted authorities in case of “need.”

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  1. I think the Denver DA should be initiating homicide investigations on all involved in this unholy enterprise.

    This reads more like something out of “coma” than what ethical physicians do in a civilized society. I can almost hear the doctor out of that dystopia intoning about how the ignorant public can’t make the hard choices, so doctors have to. It’s a short trip down that slippery slope to a computer-based system for selling the organs to the highest bidder.

    It is a sad day when our technical expertise has exceeded our wisom in applying it. Apparently that day has come for Denver Childrens Hospital.

  2. I am very concerned. How sick does a baby have to be in order for it to be considered a source of spare parts? If I were a parent of a sick baby I would feel guilty and ashamed for the rest of my life if I knew the death of someone else’s baby was hastened in order to help my baby.

  3. If these medical ethicists can even discuss the “inconvenience” of the dead donor rule for organ harvesting, I can’t see why anyone would want to risk being an organ donor. Corners are already being cut for both the non-heart beating donor criteria as noted above (it used to be a 5 minute rule of asytole) and for the criteria of “brain death” which is not always easy to document or clarify as evidenced by the AAPS synopsis noted above with reference to the O2 level in the Apnea test which is just ONE of the brain death criteria but the most complex: After pre-oxygenating for 15-30 min. with 100% O2, obtain ABGs and disconnect the ventilator if the pO2 is > or equal to 200mmHg and the pCO2 > or equal to 40 mmHg; then, while delivering 100% O2 by catheter to the level of the carina @8-12 L/min observe closely for respiratory movements for 5-10 (?) min and measure ABGs then reconnect the ventilator. If there were no spontaneous respirations and if the pCO2 increased to > or equal to 60mmHg–or 20mmHg increase over baseline, then the APNEA test was POSITIVE and supports one of the brain death criteria. If things go bad like a drop in BP below 90, or pulse oximeter indicates significant desaturation or if cardiac arrythmias occur,….etc., etc.).
    This is really inconvenient to do and when the situation with the potential organ donor seems otherwise hopeless, the need to obtain viable organs takes precedence over meeting the strict criteria of legal death. It would be a lot less hassle for surgeons involved in organ retrieval and much less legal responsibility if they could just get away with taking organs in any case where life support would otherwise be terminated w/o having to deal with the messy concept of legal death of the individual. The Surgeons involved with organ retrieval and transplantation walk a fine line between butcher and healer.

  4. I see it a bit differently than Dr. Lewer. Were I the parent of a baby where my wife and I had already made the decision to terminate life support, I’d find great consolation in the fact that these same “spare parts” could save the life of another baby. To the family that chooses to terminate support, the patient, at any age, is viewed as effectively dead. They will mourn the loss of their loved one and move on. Should the loved one “survive” once support is terminated, both the patient and the family will suffer indefinitely.

    On the flip side, were my child the recipient of an organ donation, I would feel forever grateful for the opportunity that the parents of the donor have given me. I would hope that they would feel the same sort of consolation that I know I’d feel were my child the donor.

  5. I contend that the wrong question is being asked here.

    In the cases presented, the parents – who properly have full responsibility for their dependents – consented to the removal from life-support of their infants with “little brain function” for the purposes of organ transplants. “The three donor infants had all suffered brain damage from lack of oxygen when they were born.” The parents had been informed of the the prognosis in each case and chose the course taken.

    If one or more others object to this practice of people with legal guardianship making this kind of decision, but instead think that life-support should continue, then these objecting individuals should attempt to arrange with the current guardian for a transfer of guardianship to themselves to become the guardian, thereby assuming all legal and financial responsibility for the dependent. Let the views of all determine the appropriateness of the actions of parents/guardian who either relinquish their parental/guardian role in such cases or refuse. It is not the place of government to make these decisions, but only that of parents/guardians – and it is a very difficult one considering that the vase majority of people look forward to the birth of a healthy child and are devastated when the prognosis for a modicum of normal brain function is nil. The same is true in the case of an older child who in some way becomes irrevocably brain damaged to a degree necessitating life-support. If some others want to socially preference against parents/guardians for making such a decision and against doctors for quickly acting on organ removal for transplants, let them do so. At the same time, those who support those decisions and actions would logically socially preference in favor of the parents and transplant physicians. In a truly free society, this is the only way that individual subjective ethical decisions can be objectified, with the practical consequence that those socially preferenced against, as well as observers of the situation, will be persuaded by such social pressure to correct their future actions accordingly to either correspond with the wishes of others or to take the consequences.

    Therefore the question should not be asked, “Should the “dead donor” rule be rescinded?”, but rather do individuals have full responsibility for their dependents? Do not individuals have full ownership of themselves and their property? Do individuals also not have full entitlement to decisions regarding their dependents? If some say “No” to this last, then who does? The State? Well, I say a resounding NO to that!

    Finally, concern by some of the view that “rights and ethical principles emanate from ‘society” and can be changed by the accepted authorities in case of ‘need’ ”, shows that the pseudoconcept of “rights” is fraught with problems. And the fact that someone has a need can never imply that some other person must be compelled to supply such need, or else self-ownership – the fundamental requirement of human life – is violated, since that would imply that someone who has a physical lack (ie. a properly functioning body organ) has a “right” to the property of someone else (ie. their functioning body organ). Rather what is needed to replace all notions of rights and ethics is a fundamental set of principles for human action based on the only reasonable purpose of each human being – namely to act in such a manner to rationally optimally increase hir lifetime happiness.

  6. Well, Kitty and Adam, the REAL question is at what point do you want to start carving up your kid with “little brain function” for “spare parts” while your child is still ALIVE on a respirator and yet somehow convince yourself that you still believe in the sanctity and dignity of human life? Perhaps if they just wheel the child out of the ICU to the OR, you won’t see it, won’t feel it and can hide from the reality. Without at least the prerequisite of DEATH, strictly legally defined, all humans in frail, debilitated, vunerable, near death states could be cashed in for their spare parts.

  7. Yes. The “organ donor” is alive and killed as the result of the process of organ excising.

    No. Vital organs from the truly dead are not suitable for organ transplantation.

    Yes. The “dead donor rule” has sufficed as a legal means to declare a living person dead when, in truth, the person is alive.

    No. We are not “to do evil that good may come from it.”

    2008 marks the fortieth anniversary of the “innocent” patients in American hospitals, defenseless and most venerable, having been reclassified as “nonpersons.” This dehumanizing process, in which is first and foremost, has been successfully achieved by a most simplistic means of labeling the person “hopeless,” “brain dead” and an “organ donor.” The “organ donor,” once considered a human person, a patient in need of medical treatment in protecting and preserving his/her life for his/her well-being, is conveniently considered a mere object; a subject and/or a specimen.

    This new class of human persons, the “organ donors,” having been rejected from the human family, are first stripped of their God-given inherent right to life and then, after the horrific, ongoing torturous treatment of chemical perfusion to enhance the viability of their vital organs for the betterment of another, they are “stripped for parts.” To be dissected while alive is a most violent and excruciatingly painful procedure to be forced to endure.

    Yes. The “organ donor” does indeed take his/her “last breath” of life and dies a true death after having had his/her vital organs excised. This is the ugly truth.

    Civil societies do not tolerate such human atrocities. The American citizens, a predominately Judeo-Christian people, have been deceived.

    We must protect all human persons. All are valuable and worthy. There are not persons lesser or greater than others. One’s value and worth cannot be determined by any means or measure derived by man. A person is not a ‘brain’ who is evaluated by his/her mental and/or physical capabilities. Rather, every human person is a masterpiece, a lump of Divine clay molded in God’s hands and created in His likeness and Image.

    We must protect the “innocent,” even those considered the “least” among us, and “speak out for those who cannot speak for themselves.”

    No longer can we allow the sacrificing of one life for the betterment of another. No longer can we condone the mutilation and death, this “gruesome harvest,” in the name of “good.”

    I am an “organ donor” mother. I have reviewed my son’s medical documents in which reveal, step-by-step, the horror and terror my son suffered. My son’s torture, mutilation and death occurred due to “the lack of knowledge.” My son, my family and I were deceived. Deception and ignorance are lethal.

    Enough is enough! We must stop “the shedding of innocent blood.”

  8. Bernice, my sympathy for your loss and for the additional trauma of being “deceived” into organ donation. I hope you have expressed your thoughts to UNOS. The campaign for “Organ Donors” has successfully utilized the “gift of life” propaganda without real “informed consent”—the average person who signs their organ donation on their driver’s license has absolutely no idea what is involved. (see the link above to “Twice Dead”). Unless, they view a video showing the process of organ harvesting from ICU to OR…from PATIENT to the “living” corpse, they have not had any real informed consent. Same thing should be done with women about to undergo an abortion…they should view a video of an abortion procedure and see the remains of a baby. If your human instinct says this is immoral, that is superior to any pragmatic, utilitarian scientific argument to the contrary.

  9. “Brain death” never was and never will be true death. This has been known by neurologists and organ transplanters since the beginning of the multi-billlion industry. So if a declaration of “brain death” is not true death, but organs are taken, why not continue to make the criteria less stringent? In the 10 years after the ad hoc Committee conjured up the Harvard Criteria, 30 more sets were reported by 1978. Every set became less stringent until there is a criterion that does not fulfill any of the “brain death” criteria? This is known as donation by cardiac death (DCD). Organs are obtained for transplantation by first getting a DNR order, then taking the patient off life support and wait until the patient is without a pulse (NOT WITHOUT A HEART BEAT!). At some time in the past they waited 10 minutes, then shortened the time to 5 minutes, then 4, then 2 and now in the NEJM the waiting time is only 1.25 minutes until they cut out the baby’s heart. How shameful can it get?

  10. Dear Dr Truog,

    Having read your position on the ethics of organ harvesting, may I ask you to clarify how you are able to rationalize past the spiritual needs of the dying person? I mean this in the most scientific way.

    You say that it is as ethical to remove a terminally ill person’s organs as remove them from life support when deciding to end their lives.

    I don’t see any similarity here. Put simply, a person needs all their organs to pull themselves through the death process which is more than a physical endeavor, but one which requires physical help. One cannot surmise that death happens without the involvement of the person or integral system of bodyparts it is happening to.

    I am certain that death is a major life experience. It requires a decision, no matter how subliminal, on the part of the dying person to let go. Upon doing that, the body must perform instinctively as must the spirit or sense of self. Put another way, a person is born equipped with the ability to die. This equipment must not be tampered with.

    I ask you not to speak quite so boldly and superficially on the process of death. It is a whole body experience just as it takes my body, and more, to write this letter and for you to write your articles.

    The dying need their organs. They have little else by which to negotiate what it is they have to do and how to do it with dignity and closure.

    Thank you for your consideration of this important point. I hope to read more of your growing awareness that organ harvesting is a cruel and criminal act.

  11. Further to my first posting I wish to suggest that ethics be removed from issues that no one can possibly pronounce on. Neither Dr Truog or anyone else on the planet can say how it feels to have one’s beating heart cut out.

    Just how “gutting” is it? How devastating, how sad, how disempowering?

    Christians donate more than other demographics. This is nothing short of weird… Jesus’ raison d’etre was “The spirit of God is in you. Don’t rely on others who call themselves experts…” There is nothing more or less to “his” philosophy than that. I say this historically, and not as a dogma.

    Just as it is today, anyone trying to second-guess the expert, or anyone trusting the expert in hopes of being rewarded for his “politeness” and “consideration” will find himself persecuted.

    Ethicists have invented for themselves a field of expertise. What is it they know that affords them this elevation from everyone’s basic instincts? The answer should be “we know what it feels like to be harvested for organs while still alive.” But it isn’t. So, so much for that.

    Where no one can possibly speak for another, it must not be pretended that they can. Dr Truog’s ethics, for one, can only reflect the issue of healthcare dollars. Who should get the help? In what direction should medical services go? There’s no real human worth awareness here. Only relative human worth and an arbitrary one at that.

    If two people are lost in the snow and the moment comes when they start looking at each other as the “next meal” can their thinking processes be called ethics at work? I don’t think it’s anything other than an exercise in justification or a quest to be guilt-free when committing a deed.

    Ethics must concern itself with vigorously avoiding as well as impeding any action that presumes another person’s predicament. This kind of “expertise” is heinously precocious. There is no ethic in killing the neurologically impaired. Leave it blank.

    Perhaps try instead to educate people to live healthy lives, drive less, have fewer children as a way to control demand on public services etc. Ethics have a place in living people’s lives, not those who cannot provide feedback because they are dead.