Organ Donation without Brain Death?

In this issue, Winston Chiong joins the long list of scholars who have argued that the current justifications for whole brain death are incoherent. Chiong instead recommends "brain death without definitions." To put his article in perspective, however, it is important to remember that the only reason a concept of brain death is needed at all is to facilitate the recovery of organs for transplantation. In other words, if we could consider "organ donation without brain death," we could obviate the need to find ever more creative ways of supporting this beleaguered concept.

Brain death is needed, the argument goes, so we can conform with the so-called "dead donor rule," which is an implicit assumption that vital organs should never be removed from patients before they have been declared dead. If a physician removed a vital organ from a patient before the patient was declared dead, then the physician would be guilty of homicide. Brain death is needed because it allows for a patient to be declared dead while the patient's organs are still being perfused by a beating heart.

Consider, however, that the majority of all deaths that occur in an intensive care unit follow the physical removal of mechanical ventilation. In these cases, just as in the case of a physician removing organs before a patient is declared dead, an action of the physician is the proximate cause of death. Nonetheless, the death is attributed to the disease, not to the physician. Why do we attribute moral responsibility to the disease in one case, and to the physician in the other? Clearly this point is only a hint of an alternative ethical perspective. Much more would need to be said before we ever let a physician remove a patient's vital organs before the patient was dead. But it helps show that the idea is not outlandish.

There is also little reason to think that this idea would cause any public outrage. Leading newspapers frequently report that patients were kept alive so that their organs could be removed, yet one never sees letters to the editor wondering why doctors are killing patients. A recent survey showed that a third of the public would accept organ removal from patients they considered alive.¹ Nor is it only the "uninformed public" that holds these views. Consider the comments of Dr. Sanjay Gupta, a neurosurgeon in Atlanta and senior medical correspondent for CNN, on a recent segment of Larry King Live devoted to the case of Susan Torres, a pregnant brain-dead woman who was sustained until her fetus was viable.²

Larry King: And, Dr. Gupta, we should explain again, in your—medically, is a brain dead person dead?

Dr. Sanjay Gupta: Well, you know, a dead person really means that the heart is no longer beating. I mean, that's going to be the strict definition of it. So a brain dead person is someone who has no chance of recovery, has no brain function, is requiring artificial support to be alive, but people do draw a distinction between brain dead and dead. This is where the whole field of organ transplantation sort of came to be, Larry, based on that distinction.

Larry King: So in other words, you wouldn't transplant an organ from Susan?

Dr. Sanjay Gupta: Well, you actually could, because she is brain dead. Her brain is not going to recover. If that was a choice that was being made, you could actually transplant an organ from a brain dead person into someone else.

These comments are completely erroneous from the perspective of the "dead donor rule" and our current dogma about brain death, but they are entirely compatible with an approach involving the removal of organs before the diagnosis of death. Dr. Gupta articulates an alternative view that sees brain death not as a diagnosis, but as a prognosis, and death not as the loss of brain function, but of cardiac function.

Brain death and the dead donor rule are widely viewed as the central pillars of our approach to the ethics of organ donation. They are not the views of the public...