• Transplantation
• Dead donor rule
• Definition/Determination of Death
• Vital organ donation
• Donation/Procurement of Organs/Tissues

The recent consensus statement from the American Thoracic Society perfectly captured the central ethical dilemma in organ procurement: ‘the tension between the need for both “live organs” and a “dead donor” has required the development of very explicit criteria for declaring the “moment” of death, despite the absence of a biological basis for this degree of precision’.1

As such, what is most notable about the paper by Dalle Ave et al2 is their description of how the transplantation community has twisted themselves into pretzels creating ethical justifications for increasingly contrived ways to extract functioning organs from people deemed to be dead. In so doing, they are sustaining ethical myths and illusions that have ceased to have any face validity in terms of common sense clinical practice. Let me explain.

The driving force behind these contortionist efforts is the so-called dead donor rule (DDR), which seeks to establish a bright line, or ethical firewall, between the dying process and organ procurement.3 But this bright line has always been an illusion. In donation following the diagnosis of brain death, for example, the living body of a person with a devastating brain injury is fully supported until after the organs can be removed. In donation after circulatory determination of death (DCDD), the dying process is entirely orchestrated around the procurement of the organs, often involving the need for surgical procedures and administration of before death non-therapeutic medications. Any notion that the two parts of this process can be ethically isolated is fantasy. Consider, for example, that the authors reject several perfectly plausible definitions of death precisely because they would not facilitate organ procurement.

Putting aside for a moment our historical allegiance to the DDR, let us take a clear-eyed look at the ethics of organ procurement.4 First, all of the patients involved are unequivocally dying. The DDR is focused on allaying a latent fear that a person who would not otherwise die could be killed by the removal of vital organs. But this is never the case. Patients who have been declared brain dead are soon disconnected from the ventilator regardless of whether they are an organ donor. And to my knowledge there has never been a DCDD patient who did not die, although sometimes not fast enough for the organs to be usable for transplantation. Indeed, imagine if this were not the case—what would we think if patients were prepared for DCDD, with surgical placement of cardiac bypass cannulas and administration of large doses of heparin, and then went on to survive?

If we can accept that all of these patients are dying, then the next question is how best to respect their interests and wishes during the dying process. All dying patients, regardless of whether they choose to be organ donors, deserve to be kept comfortable and free from unwanted pain or suffering. In addition, some will want to help save the lives of others by donating their organs. We should always assure the former, and we should seek to respect the latter by recovering organs in ways that maximise both the number and the quality of the organs procured.

In short, the ethics of organ procurement is straightforward and simple—patients should be free from unwanted suffering, and their choices around organ donation should be respected. Delivering on this ethical requirement is also uncomplicated—patients with devastating brain injuries such as ‘brain death’ and/or those who have chosen to die following the withdrawal of life-sustaining treatment should be allowed to donate their organs under anaesthesia and as part of the process of the withdrawal of life support.

Unfortunately, our current practices around DCDD do not live up to these ethical requirements. Most importantly, DCDD is typically limited to kidneys, given the ischaemic injury that the other organs suffer from our efforts to conform with the DDR. Allowing patients to donate organs as a part of the withdrawal of life support would make all of the organs potentially transplantable, and dramatically increase both the number and quality of the organs procured.5

The common sense and practical approach described here is dismissed out-of-hand by many clinicians and ethicists. First, they claim that physicians who remove organs prior to the legal declaration of death would be committing homicide. The correct interpretation, however, is far more complex. Historically, physicians refused to remove patients from ventilators because it would make them complicit in the dying process. In rejecting this view, the court in Quinlan acknowledged that even if ventilator withdrawal ‘were to be regarded as homicide, it would not be unlawful’.6 The Quinlan court recognised that doctors are inextricably intertwined in the process of dying, and their agency in the process does not alone determine whether their actions are ethical or legal.

Second, some commentators consider this proposal to be a ‘non-starter’ because it is allegedly out of step with the public's moral sensibilities. This ‘intuition’ is not, however, borne out in the sociological literature. One recent study, for example, found that about 70% of the US adults surveyed would donate their organs if they had devastating brain damage, even though the scenario clearly stipulated that removal of their organs would be the direct cause of their death.7 The point is not that everyone agrees with this view, but rather that honest discussion about the merits of the DDR is not a ‘non-starter’.

In sum, the DDR is built upon the illusion that there can be a bright line drawn between the dying process and organ procurement. This illusion has led to the myth that organ procurement is unethical if it does not comply with the DDR. In reality, organ procurement is ethical if it assures that the patient is free of unwanted pain and suffering and if it respects the patient’s altruistic wishes by procuring organs in ways that maximise the value of the donor's gift. This approach is ethical and would dramatically increase the number of lives that could be saved by organ transplantation. It is time we recognised the DDR for what it is, an impediment to good ethics for donors and recipients alike.