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The American Journal of Bioethics 3.1 (2003) 15-16



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The Theoretical and Practical Importance of the Dead Donor Rule

James J. McCartney
Villanova University

Elysa R. Koppelman (2003) claims to be concerned about both the utilitarian goal of increasing the organ supply and the deontologic concern about respect for persons. While her concern may be genuine, I will try to show that her solution—abrogating the dead donor rule and focusing instead on particular persons' history and interests—is misguided because respect for persons is much more than respect for personal autonomy and because introducing ambiguity about death will make people even more reluctant to donate organs, thus destroying her utilitarian goal.

In 1979 the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research issued The Belmont Report. This report was one of the first (and best, in my opinion) to articulate principles that were applicable not only for research involving human subjects, but also for bioethical issues in general. The Commission's first principle, respect for persons, is described thus:

Respect for persons incorporates at least two ethical convictions: first, that individuals should be treated as autonomous agents, and second, that persons with diminished autonomy are entitled to protection. The principle of respect for persons thus divides into two separate moral requirements: the requirement to acknowledge autonomy and the requirement to protect those with diminished autonomy. (4-5)

This latter dimension, the requirement to protect those with diminished autonomy, appears to be the basis and grounding for the dead donor rule, because those who are dying could easily be exploited and killed in order to achieve some admittedly worthwhile utilitarian goal (harvesting more organs). But Koppelman would argue that some who are dying are in a slippery or suspended state between life and death, and would further argue that death itself is an ambiguous concept, a position she believes other philosophers have ably shown. Thus she holds that the focus on life versus death, the basis for the dead donor [End Page 15] rule, is misguided and that we should focus instead on respect versus harm, not realizing that if respect is understood as broadly as it is presented in The Belmont Report, then it is respect for human life that is at issue, not respect for personal autonomy, and that the harm the dead donor rule wants to protect against is homicide committed for the sake of benefiting someone else or possibly even the person herself if she has previously chosen to be killed. Koppelman does understand that autonomy has its limits; however, she seems to forget that public policy in the United States and just about everywhere else limits that autonomy when one wishes to take one's own life or have someone else take it for him (even Oregon does not allow beneficent homicide!).

This approach to public policy assumes, of course, that death is not as ambiguous as she claims. In an article published in the Hastings Center Report in 1998, Bernat provides many persuasive arguments in defense of the whole-brain concept of death. He claims that this understanding of death "now has reached a degree of societal acceptance rare for bioethical issues, one that has been sufficient for nearly all jurisdictions in the United States" (14).

What is meant by the "whole-brain concept of death?" To me, it indicates that an individual organism of the human species no longer exists who recently did exist (death as event) and that this has been determined by the clinical observation that all the brain, including the brain stem, has irrevocably ceased functioning. While using the criterion "an individual organism of the human species" as a basis for human life raises many questions at the beginning of life, as I have tried to demonstrate elsewhere (McCartney 2002), I believe it raises few questions at the end of life.

I accept that the process of dying is indeed laden with many value judgments and cultural norms and taboos, but I agree with Bernat that death itself is a...

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