It is commonly stated that all religions approve of organ donation (Ivan and with contributions by Melrose
2007; Woien et al.
2006); however, some states in the United States allow religious beliefs to take precedence over the concept of brain death (Capron
2001). Indeed, in response to the objection of some Orthodox Jews to the use of neurological criteria in diagnosing death, a 1987 New York regulation requires hospitals to have procedures for the “reasonable accommodation” of patients’ religious or moral objections to the standards used to determine death (New York State Department of Health
2005). In 1991, New Jersey enacted a statute that has separate sections recognizing “traditional cardio-respiratory criteria” and “modern neurological criteria,” and that prohibits the physician from using the latter when he or she “has reason to believe” that “a declaration [on the basis of neurological criteria] would violate the personal religious beliefs of the individual (New Jersey Office of the Attorney General
2007).” It is interesting to note that most of the discussion of organ donation stems from the focus on brain death or heart-beating donation. It is commonly assumed, without further formal discussion among religious leaders, that the justification of the more recent protocols of organ procurement in NHBOD, including in other states of impaired consciousness, can be derived from the agreement, on principle, that organ donation is a genuine act of beneficence. However, recent events and developments in organ procurement procedures have triggered a response from religious institutions. Scholars from diverse religious affiliations have revisited the opinions on brain death in light of contemporary medical knowledge (Brown
2007; Diamond
2007; Kunin
2004; Shea
2007). The House of Lords European Union Committee published the 17th Report of Session 2007–2008 on Increasing the Supply of Donor Organs within the European Union (House of Lords European Union Committee
2008). The report recognizes that several major religious groups (as well as some individuals with no faith group affiliation) had major reservations about the concept of brain death and opposed organ donation from donors whose death has been defined solely on the basis of brain death. Several diverse religious groups oppose organ donation because of a fundamental belief that the human body is a trust that has been given and owned by God and, therefore, should not be physically violated by removing organs. Although Pope Pius XII declared that rigorously applying the criteria for ascertaining brain death suffices for arriving with moral certitude at the conclusion that death has occurred, Pope Benedict XVI has asked that the debate on brain death and organ procurement be revived (Shea
2007; Timesonline
2008). Pope Benedict XVI stated that vital organs can be extracted “ex cadavere” [from a dead body], if and only if, the donor’s true death can be certified beyond a doubt (Pope Benedict XVI
2008). If the medical assumption of the moral certitude of brain death criteria turns out to be wrong, then we would no longer be able to use brain-death criteria with moral certainty (Brown
2007). In addition, it must be noted that, in 1957, a group of anesthesiologists posed the ethical problem of medical prolongation for life to Pope Pius XII and asked for instruction (Giacomini
1997). In 1958, Pope Pius XII referred the dilemma back to the doctors, affirming that the criteria for
timing (not defining) death
under artificial life support should be left to the attending physician. It is important to point out that, at that time, neither the press nor physicians interpreted the Pope’s statement as a call to redefine death itself (Giacomini
1997). It is also widely recognized that the degree of certitude required in determining death is influenced by the anticipated removal of organs for transplantation (Diamond
2007). Shewmon argued that the medical community has fallen into the logical fallacy of accepting that the absence of evidence of conscious activity constitutes evidence of its absence (Shewmon
1997). Diamond concluded that the debate about brain death should be elevated to a truly scientific dialog about the significance of certain irreversible losses of function (Diamond
2007). It is therefore premature to conclude that no religious opposition exists to organ procurement procedures. We speculate that religious leaders will reopen the discussion on these issues in the near future.
Studies have shown that patients consider the most important end-of-life decision to be their wish to not be kept alive on life support when there is little hope for a meaningful recovery (Ivan and with contributions by Melrose
2007). If the clinical guidelines used in medical practice and accepted as medical standards for the determination of either brain death or other states of impaired consciousness cannot exclude catastrophic diagnostic errors or uncertainty about human death, then heart-beating organ donation and NHBOD are effectively physician-assisted death. We agree with Truog’s analysis that formulation of the Harvard criteria for brain death and organ donation in 1968 marked the beginning of medical experimentation with physician-assisted death in the United States (Truog
2008). A concept of brain death may meet the criteria of a necessary condition for death but fails as a sufficient condition for a comprehensive understanding of death. The President’s Council on Bioethics recognizes and acknowledges that there is no clinical or scientific evidence proving that death based on only neurological criteria thus indeed fully encompasses the concept of human death (The President’s Council on Bioethics
2008, pp. 54–57). The Council reappraises the reality that the neurological standard of “
whole brain death” corresponds to a ‘‘condition of profound incapacity, diagnostically distinct from all other cases of severe injury” (p. 38). Although the Council does not state it in so many words, it implies that over the past 40 years, all statutory death laws, all diagnostic criteria for “brain death,” and all transplantations from heart-beating donors have, in retrospect, been based on an invalid conceptual framework and incorrect empirical facts. The validity of the Council’s new philosophical rationale for continued justification of the concept of brain death has already been questioned (Shewmon
2009). Because of this, significant changes would be required in how we think about death and dying, how we provide and withdraw medical care from brain-dead patients and those in other states of impaired consciousness, and how we make decisions about the ethical permissibility of NHBOD. We have also previously argued that applying circulatory criterion for determining irreversible cessation of circulation and respiration (of the brain stem) in compliance with the UDDA, is not compatible with recovering transplantable organs in NHBOD (Verheijde et al.
2007a).
What are the practical implications for bedside clinicians? From medical and ethical perspectives, surgically procuring organs without general anesthesia, while failing to recognize that donors may not be really dead, can inflict unnecessary harm at the end of life. Harm includes the possibility of active inner awareness as well as the experience of pain and other primary-process affects in incipiently dying donors during surgical procurement (Giacino
1997). Death by organ procurement may also violate deeply rooted personal end-of-life values and beliefs of some donors. Procuring organs based on unsubstantiated criteria of death also raises legal questions about the compliance with homicide statutes (McGregor et al.
2008). Consenting to organ donation after death cannot be construed as consenting for physician-assisted death in order to procure transplantable organs. Donors or surrogates cannot consent to their own death unless such actions have already been legalized in society. For these reasons and in order to continue the current practice of organ procurement, we posited that recovery of transplantable organs from decedents requires a paradigm change in the ethics of organ donation (Verheijde et al.
2007a). Within the revised paradigm, the uncertainties about clinical determination of states of impaired consciousness and death in human beings, which also include brain death, are disclosed and discussed publically to maintain trust in the integrity of the medical profession. Furthermore, if the general public and society judge that the current degree of clinical uncertainty is acceptable, then establishing a legal definition of end-of-life care that would include physician-assisted death can be an option to resolve the existing conflicts in procuring transplantable organs from patients who have little hope for a meaningful recovery and who may be in states of impaired consciousness (Ivan and with contributions by Melrose
2007).