Due to the worldwide shortage of organs for transplantation, there has been an increased use of organs obtained after circulatory death alone. A protocol for this procedure has recently been approved by a major transplant consortium. This development raises serious moral and ethical concerns. Two renowned theologians of the previous generation, Paul Ramsey and Moshe Feinstein, wrote extensively on the ethical issues relating to transplantation, and their work has much relevance to current moral dilemmas. Their writings relating to definition of death, organ transplantation and the care of the terminally ill are briefly presented, and their potential application to the moral problem of organ donation after circulatory death is discussed.
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Worldwide there is a dearth of organs available for solid organ transplantation. Currently there are close to one hundred thousand people on waiting lists for organ donation in the USA. As a result of this situation, various proposals have been suggested to increase the number of organs available for transplantation. They include donation by default and priority for receiving of organs to those willing to donate. In addition, many patients travel to foreign countries, sometimes under dubious and ethically problematic conditions.
In order to increase the potential donor pool, reliance upon cardiac death in order to harvest organs has recently been suggested. Elements of the protocol commonly referred to as donation after circulatory death (DCD) are as follows:
Patients who have non-recoverable and irreversible neurological injury, end-stage musculoskeletal disease, pulmonary disease and high spinal cord injury who do not fulfil brain death criteria are suitable candidates for DCD.
No donor-related medications or procedures may be performed without consent.
No members of the transplant team may be present for the withdrawal of life-sustaining measures or participate in the administration of palliative care.
Death may not be declared by any members of the organ recovery team and must meet the legal definition of irreversible cessation of circulatory and respiratory function.
No donor-related charges may be passed on to the donor family.1
In 2006, 645 organs were received through the use of this protocol and in some networks such organs account for more than 20% of all donated organs.1 With the official adoption of this protocol by the Organ Procurement and Transplantation Network and the United Network for Organ Sharing in July 2007, there is an urgent need to readdress the complex ethical and moral issues raised by DCD.
From a Western secular perspective, the ethical legitimacy of DCD needs to be judged according to the accepted principles of modern bioethics—primarily the need to respect the autonomy of the patient and the desire for a fair and just healthcare system. However, in this essay I discuss DCD and other ethical issues relating to organ transplantation from a theological perspective, focusing on the works of two traditional thinkers, one well known to the ethics community and one less well known. Professor Paul Ramsey was arguably the most influential Protestant medical ethicist of the last generation. His landmark book The patient as person heralded a new era in theological thinking and contributions to medical ethics. Rabbi Moshe Feinstein was undoubtedly the most influential traditional Jewish medical ethicist of the last century, but his work is unknown to the general bioethics community for a number of reasons. He communicated his thoughts via responses to questions on all topics in Jewish law sent to him from all over the world. These collected answers, known as responsa, were written in highly technical Hebrew accessible to only serious Talmudic scholars. In addition, he requested that his responses not be translated into English for fear of misrepresentation of his work. His ideas are known to non-Hebrew-speaking scholars primarily through the writings of his students, Rabbi Dr Moshe Tendler and Dr Fred Rosner, who attempt to faithfully transmit his ethical thinking. Both Ramsey and Feinstein made great efforts to become highly proficient in the technical and medical facts relevant to their ethical discussions. Ramsey participated in biweekly conferences on medical ethics with physicians from Georgetown Medical School and Feinstein spent 2 years studying the medical facts relevant to organ transplantation with numerous doctors.
Professor Daniel Callahan and others have commented on the lack of impact of religious thinking in modern bioethical discourse and the negative effect this has had on the discipline. According to Callahan, this secularisation weakens the discipline in many ways. It has led to a combination of detached neutrality and a culture-free, rationalistic universalism that has intimidated religion from speaking in its own distinctive voice. In addition, it has left us too dependent on the law and missing the collected moral insights of long-established religious traditions.2
In the case of DCD, the wisdom of Ramsey and Feinstein has much to contribute to the ethical and moral discussion. Both commented extensively on the problem of defining death and the ethical issues involved in organ transplantation, and in many instances these respected theologians, writing from very different religious traditions, came to remarkably similar conclusions. Ramsey, writing from a Protestant theological perspective, believed that the origin of ethical behaviour is an imitation of the covenantal relationship between man and God, which man must emulate in his relationship with his fellow man. This relationship is based on charity, loyalty and, above all, love. Feinstein based his ethical decision-making on the Halakah (Jewish law). In this system, the decisor analyses the ancient sources, primarily the Mishnah (compiled c. 200 CE), the Talmud (compiled c. 500–600 CE), the medieval codes and the responsa literature to find relevant sources and precedents from which a judgment may be rendered.3
DEFINITION OF DEATH
The driving force behind the medical community’s striving for a definitive definition of death in the 1960s was primarily the advances in solid organ transplantation. After much work, the scientific, ethical, legal and lay publics eventually accepted the Harvard criteria of brain death. Professor Ramsey and Rabbi Feinstein also struggled with this issue. Both insisted that their eventual agreement with this definition had nothing to do with a new definition of death but, in the words of Ramsey, was just an updating of the traditional definition. He recognised the need for a definition of death because we “need some procedure for determining when a life is still with us, making its moral claims upon us, and when we stand instead in the presence of an unburied corpse”.4 Ramsey forcefully maintained (p59) that the traditional definition of death, “the irreversible cessation of spontaneous cardiac activity and spontaneous respiratory activity,”4 remains the definition of death; the fact that a ventilator can maintain respiration artificially should not impact on this definition. Therefore, death is defined as the inability to breathe spontaneously, and this action is now known to be controlled by the brainstem. What is updated in the definition of death is not the definition but an understanding of its physiologic basis and the use of new technology to document it. This formulation is remarkably similar to Feinstein’s. As opposed to other traditional Jewish authorities, he maintained that the classic Jewish definition of death is solely the absence of spontaneous respiration. He based this on an ancient Talmudic passage:
If a building collapses on Shabbat and someone may be trapped in the rubble, one must desecrate the Shabbat, to try to save the victim. If one finds him alive one extricates him and tries to save his life. If he is found dead, one leaves him there until the end of Shabbat. How far does one dig to determine whether he is alive or dead? Up to the nose. An additional view is up to the heart. The main sign of life is in the nose, as it is written “All in whose nostrils is the breath of the spirit of life”.5
The law is codified that “if one cannot detect signs of respiration at the nose, then he is certainly dead.”6 Based on his interpretation of this passage, Feinstein explicitly accepted the Harvard criteria. In his own words, “the definition [of death] called the Harvard criteria is considered as if the patient is decapitated because the brain has already been destroyed. And even if the heart is able to beat for a few days; all the time the patient has no ability to breathe independently he is considered dead” (p182).7
Both Ramsey and Feinstein maintained that an accepted definition of death is morally necessary in order to know when it is acceptable to stop caring for the patient. Feinstein also emphasised that once a patient is declared dead, one is obliged to stop treatment and to treat the body with the respect due a corpse in Jewish tradition.
Some authorities have recognised the moral ambiguity associated with DCD and have advocated abandonment of the dead-donor rule.8 The reason for this shift is that these authorities recognise that the nominal periods of cardiac arrest necessary for organ donation do not meet the definition of irreversible cardiac death. This proposition would be morally reprehensible to both Ramsey and Feinstein. Ramsey stated that “the canons of highest loyalty to the primary patient can best be secured if neither the procedures for stating death nor a decision that death has occurred are distorted by any reference to someone else’s need for organs” (p112).4 He emphasised this point over and over again in his writing: that there has to be no connection between the definition of death and the need for organs. The basis of this position is the principle that the loyalty a physician owes his patient is the dominant element of the doctor–patient relationship. Feinstein also explicitly wrote that he considered it murder to take organs in any circumstance from a donor who is not yet brain dead (p196).7 He also stressed the covenantal relationship that a physician has with an individual patient. He ruled that in a situation of limited resources where a physician is only able to treat one patient, the physician should preferentially treat the one with the better chance to live. However, if the doctor has already begun to treat the patient with the lesser chance to live, the doctor may not leave that patient, because one has already established an inviolable relationship that cannot be broken (p157).7
Professor Ramsey felt strongly that organ donation should be an act of charity from one individual to another. Consequently, he rejected the claim of some Catholic theologians that the ethical imperative for organ donation be based on totality. This principle justifies the giving of organs on the basis of the spiritual and psychological well-being that the donor receives and thus can theoretically be extended to minor donors who would benefit from the donations. In the spirit of his long-held preoccupation with the protection of the rights of minors in medical care, Ramsey rejected this line of reasoning out of the belief that organ donation is first and foremost an act of charity from one consenting individual based on the Christian notion of love. For similar reasons, he preferred a public policy of uniform giving of cadaveric organs as opposed to the routine salvaging of cadaver organs. He explained that “a society will be a better human community in which giving and receiving is the rule, not taking for the sake of good to come” (p210).4
There is an ancient Jewish debate over whether one is allowed to put oneself in danger to save another person’s life. Modern authorities have extended this debate to the question of whether one is allowed to donate an organ. The debate was more relevant in the beginning of the era of organ transplantation, when the risks to donors were less clear. Feinstein ruled that one is not required to be an organ donor but it is certainly a charitable and praiseworthy act (p204).7 Despite the long-standing Jewish tradition regarding the sanctity of a corpse, he felt the same way regarding cadaveric organs. Like Ramsey, he felt that the moral imperative for organ donation is based on human charity. When he first began espousing these positions, they were rejected by many contemporary rabbinical authorities, but thanks to his influence they have became the norm in the traditional Jewish community.
Both Professor Ramsey and Rabbi Feinstein took issue with the ethical underpinnings of the early transplantation movement. Ramsey felt strongly that because of the excess mortality associated with the procedure, early cardiac transplantations should have been viewed as investigational treatments, as opposed to medical treatments. The ramifications of this formulation are twofold. First, patients needed to be presented with other treatment options, and, second, adequate informed consent needs to obtained before the surgery. In Ramsey’s words, “Such remedies are not mandatory upon any patient’s choice, or imperative to be done to save the life of any man, unless he affirmatively chooses them by a participatory consent that is adequately informed and free of overriding desperation. To make room for that decision, to seek and strengthen it, is the beginning and the foundation of care for an end-stage patient” (p237).4
Rabbi Feinstein condemned the early transplants in harsher terms, as “murder of two people (e.g. the donor and recipient)”.7 He considered the operation murder of the donor if the heart is removed before the patient is brain dead and murder of the recipient because the overwhelming majority of these patients died soon after the transplant. In addition, he was concerned about the ability to obtain voluntary consent in these desperate patients. He also condemned the practice of artificially extending the life of patients in the intensive care unit in order to retain their suitability as organ donors. He was concerned that in the midst of extending their lives, physicians might also be increasing the suffering of the dying patients, which is morally reprehensible.
Both Professor Ramsey and Rabbi Feinstein were sceptical about the exuberant optimism towards cardiac transplantation expressed by its early practitioners and innovators, who viewed it as life-saving treatment. Ramsey felt that it should be at best considered investigational treatment and that this knowledge should have formed the basis of the contract between physician and patient. Feinstein felt that in the enthusiastic touting of the procedure to patients and the public, there existed serious moral lapses in judgment. Because of his sensitivity towards human life, he was very concerned about risk-taking in the context of medical care. Apparently, he felt that the early attempts at cardiac transplantation should have been preceded by more animal experimentation or delayed until the advent of more powerful immunosuppressive medications. When brain death became the accepted definition of death and the mortality from transplantation was dramatically reduced by new medications and improved surgical technique, Feinstein eventually allowed the procedure.
Much of Professor Ramsey and Rabbi Feinstein’s hesitancy regarding the early attempts at organ transplantation was due to their heightened sensitivity to end-of-life care. Ramsey maintained that at some point in the dying process, the physician’s role changes from attempting to cure the patient to only caring for the patient. This imperative to care is based on the loyalty a physician owes the patient and the ethical demands of charity and love. Therefore, at times it is appropriate to withdraw or limit care in a dying patient, but active euthanasia is never condoned. Ramsey felt that “acts of caring for the dying are deeds done bodily for them which serve solely to manifest that that they are not lost from human attention, that they are not alone … If we seriously mean to align our wills with God’s care here and now for them, there can never be any reason to hasten them from the here and now in which they still claim a faithful presence from us” (p153).4 It would be a gross violation of this covenantal relationship, therefore, to end the life of a patient prematurely or, conversely, to extend life artificially in order to create a suitable organ donor.
With the advent of artificial means to extend life and potentially toxic new medications, the question arose of whether in all instances according to Jewish law one is required to do everything to extend life as much as possible. Because of the traditional value that Jewish ethics places on life, many laymen and even respected decisors felt that this is indeed the case. Rabbi Feinstein thought they were mistaken and attempted to prove from Talmudic and other authoritative sources that Judaism does not mandate the extending of life in the dying and suffering patient (p157).7 For him, the dominant element is the amount of suffering. Life is a supreme value, but not all life is worth fighting for. He vehemently rejected the extension of this principle to non-suffering or non-terminal patients. The parameters of his decision need to be further delineated, but nonetheless it demonstrates the dominant role of suffering in medical decision-making at the end of life in his thought. Like Ramsey, he felt that there is a time when the physician is no longer required to attempt to cure the patient but at all times must care for the patient. However, one is never allowed to do anything to actively hasten the death of a patient. Therefore, potential organ donors are not allowed to suffer by having their life extended or shortened in order to be more suitable as donors.
Writing a generation ago from an unabashedly religious perspective, Professor Ramsey and Rabbi Feinstein still have much wisdom of relevance to the current debate on DCD and on medical ethics in general. They both maintained that there must continue to be an absolute, inviolable definition of death and that the physician’s primary loyalty must always be to the patient currently being cared for. Interestingly, there are now countries where the decision on how to define death is an individual choice left to patients and their families.9 Even in an era of a tragic shortage of organs, donation must always be viewed as a voluntary, charitable act that has the potential to morally elevate humankind, as opposed to the danger of viewing the human body as a repository of body parts. Ramsey and Feinstein maintained a healthy respect for physicians but recognised the need for ethical oversight of the profession. Even in the era of almost unimaginable advances in medical science, concern for the individual patient’s humanity and suffering needs to be the foremost concern of the practising physician. Medicine based on these principles has the potential to be the utmost expression of charity and caring in this world.
The author would like to thank Professor Shimon Glick for his thoughtful comments.
Competing interests: None.