Hostname: page-component-7c8c6479df-995ml Total loading time: 0 Render date: 2024-03-28T11:33:47.245Z Has data issue: false hasContentIssue false

Contemporary Transplantation Initiatives: Where's the Harm in Them?

Published online by Cambridge University Press:  01 January 2021

Extract

Two contemporary strategies in cadaver organ transplantation, both with the potential to affect significantly expanding organ transplant waiting list sizes, have evolved: elective ventilation (EV) and use of nonheart-beating donors (NHBDs). Both are undergoing a period of critical review. It is not clear how widely EV is practiced around the world. In Great Britain, the Royal Devon and Exeter Hospital was the first hospital to develop an EV protocol (the Exeter Protocol), in 1988, after which other British hospitals followed suit. In the 1980s, new NHBD protocols of two distinct types were implemented worldwide, although both rely on death confirmed by traditional cardiopulmonary criteria. The first type involves the removal of organs immediately after death, the preeminent example being the University of Pittsburgh Medical Center Protocol (the Pittsburgh Protocol). The second involves the perfusion and cooling of kidneys immediately following death and subsequent organ removal. Protocols of this type have sprung up in Holland, Great Britain (for example, at Leicester General Hospital), Italy, France, Spain, Japan, and the United States (for example, the Regional Organ Bank of Illinois).

Type
Article
Copyright
Copyright © American Society of Law, Medicine and Ethics 1996

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

As of June 7, 1995, 29,058 persons were on the kidney transplant waiting list in the United States, compared to 24,973 persons as of December 31, 1993. UNOS Correspondence, Data Request No. 061395-2, June 14, 1995. In the United Kingdom, the renal transplant waiting list has grown from 1,923 in 1980 to 5,000 as of June 30, 1995. United Kingdom Transplant Support and Services Authority, Transplant Updates.Google Scholar
See Feest, T. et al., “Protocol for Increasing Organ Donation After Cerebrovascular Deaths in a District General Hospital,” Lancet, 335 (1990): 1133–35. Adopting the protocol doubled the donation rate over nineteen months. See Salih, M. et al., “Potential Availability of Cadaver Organs for Transplantation,” British Medical Journal, 302 (1991): 1053–55. Worldwide estimates are that there are about forty potential candidates for EV per million. See Hibberd, A. et al., “Potential for Cadaveric Organ Retrieval in New South Wales,” British Medical Journal, 304 (1992): 1339–43.CrossRefGoogle Scholar
Studies in the 1970s, by Starzl, Turcotte Schweizer, Bankowski Garcia-Rinldi, Johnson, and others established the feasibility of preserving and using organs from NHBDs. See Rapaport, F.T., “Alternative Sources of Clinically Transplantable Vital Organs,” Transplantation Proceedings, 25 (1993): 4244.Google Scholar
In Maastricht, Holland, 20 percent more kidneys were procured by these means over a ten-year period. See Koostra, G. et al., “Twenty Percent More Kidneys Through a Non-Heart-Beating Program,” Transplantation Proceedings, 23 (1991): 910–11. In the United Kingdom, Leicester reported a 38 percent increase in donor organs as a consequence of implementing this strategy. Nathan estimates that implementation of Pittsburgh-style protocols could result in a 20 to 25 percent increase in donor organs. See De Vita, M.A. et al., “History of Organ Donation by Patients with Cardiac Death,” Kennedy Institute of Ethics Journal, 3 (1993): At 125.Google Scholar
The patient must be apneic and unresponsive, for at least two minutes, to one of three electrocardiographic criteria. See Youngner, S.J. et al., “Ethical, Psychosocial, and Public Policy Implications of Procuring Organs from Non-Heart-Beating Cadaver Donors,” JAMA, 269 (1993): At 2771. The Pittsburgh Protocol is set out in the Kennedy Institute of Ethics Journal, 3 (1993): A1–A15. A similar protocol has been in place at the King's College Hospital, Dulwich, England, since 1988. See Phillips, A.O. et al., “Renal Grafts from Non-Heart Bearing Donors,” British Medical Journal, 308 (1994): 575–76.Google Scholar
Potential donors are those who have come off bypass during cardiothoracic surgery, intraoperative neurosurgical deaths, rapidly deteriorating intracerebral bleeds and subarachnoid hemorrhages, failed resuscitation in coronary care units, cardiac arrests on hospital wards, deaths in accident and emergency departments, or deaths from primary brain rumors in a hospice environment.Google Scholar
NHBDs initially became less popular because of concerns about the viability of organs from such donors. Even today, some of these organs fail to function and there is an increased incidence of acute tubular necrosis. NHBDs are still the main source of cadaver donors in countries such as Japan where the society is generally reluctant to accept fully the concept of brain death.Google Scholar
Acute Services Policy Unit, Identification of Potential Donors of Organs for Transplantation (Health Services Guidelines (84)1, 1994).Google Scholar
King's Fund Institute Report, A Question of Give and Take: Improving the Supply of Donor Organs for Transplantation (London: King's Fund Institute, Research Report 18, 1994): At 64.Google Scholar
Law Commission Report, Mental Incapacity (London: HMSO, Law Comm. No. 231, 1995): At para. 6.26. The commission also thought that EV is illegal in Great Britain.Google Scholar
Although some controversy arises over the issue, I do not intend to debate whether patients subjected to EV are truly dead, an issue which also recurs in debates about the application of the Pittsburgh Protocol, nor whether EV is unethical either because it constitutes an improper use of intensive care facilities (especially where such facilities are in short supply) or because of the risk that the practice itself will increase the risk of persons ending up in PVS.Google Scholar
British Medical Association, Medical Ethics Today: Its Practice and Philosophy (London: BMA, 1993): At 323. The British Transplantation Society, the ethical committee of the Royal College of Physicians, and the Royal College of Nursing have all expressed similar views.Google Scholar
De Vita, M.A. et al., “Procuring Organs from a Non-Heart-Bearing Cadaver: A Case Report,” Kennedy Institute of Ethics Journal, 3 (1993): At 380.Google Scholar
Lynn, J., “Are the Patients Who Become Organ Donors under the Pittsburgh Protocol for ‘Non-Heart-Beating Donors’ Really Dead?,” Kennedy Institute of Ethics Journal, 3 (1993): At 168.CrossRefGoogle Scholar
Youngner, et al., supra note 5, at 2770.Google Scholar
May has noted a “tinge of the inhuman in the humanitarianism of those who believe that the perception of social need easily overrides all other considerations.” May, W., “Attitudes Towards the Newly Dead,” Hastings Center Studies, 1, no. 2 (1973): At 5. While May is referring to the routine cutting up of corpses for organ removal, his remark has equal force in this analogous situation.CrossRefGoogle Scholar
Feinberg, J., “The Mistreatment of the Dead,” Hastings Center Reports, 15, no. 1 (1985): At 31. Sidney Callahan, by contrast, states that “[u]nlike Feinberg, I would be especially slow to label the moral sentiments or responses of others as squeamishness, or sentimentality, or irrationality,” and he advocates an approach to ethical decision making involving a personal equilibrium in which emotion and reason are both activated and in accord. See Callahan, S., “The Role of Emotion in Ethical Decisionmaking,” Hastings Center Reports, 18, no. 3 (1988): At 9, 14. It should be noted, though, that Feinberg also recognizes that harm can be caused (posthumously) to the now deceased by obstructing the fulfillment of certain interests.Google Scholar
May, W., “Religious Justifications for Donating Body Parts,” Hastings Center Reports, 15, no. 1 (1985): At 38.Google Scholar
Law Reform Commission Report, Procurement and Transfer of Human Tissues and Organs (Ottawa: Law Reform Comm., Working Paper 66, 1992): At 45.Google Scholar
Gaylin, W., “Harvesting the Dead,” Harpers, 249 (1974): 2328.Google Scholar
See Miedema, F., “Medical Treatment after Brain Death: A Case Report and Ethical Analysis,” Journal of Clinical Ethics, 2, no. 1 (1991): 5052.Google Scholar
It is reported that four babies have been born as a result of such a practice. See Mason, J. McCall Smith, A., Law and Medical Ethics (London: Butterworths, 4th ed., 1994): At 289.Google Scholar
See Law Reform Commission, supra note 19, at 114.Google Scholar
In Re F (Mental Patient: Sterilisation), [1990] 2 A.C. 1 (H.L.).Google Scholar
Airedale NHS Trust v. Bland, [1993] 1 All E.R. 821 (H.L.).Google Scholar
An alternative, “not against the interests” test, has been applied to nontherapeutic procedures performed on minors. See S v. S. [1970] 3 All E.R. 107 (H.L.). But with respect to adults, unlike children, no one is there to make the decision on their behalf or to be accountable for it. In fan, even in Bland, Lord Mustill had reservations about the best interests test as applied to PVS patients. See Airedale NHS Trust, All E.R. at 894 (stating that such individuals have “no best interests of any kind”).Google Scholar
The Law Commission also generally approved the application of the best interests test in the context of medical procedures performed on the mentally incompetent. See Law Commission Report, supra note 10. It did consider that the test would not be appropriate for determining decisions relating either to elective ventilation or to the withdrawal of artificial nutrition or hydration. Id. at paras. 6.17–6.39, 6.24.Google Scholar
The High Court of Justice reached such a view in the case of a PVS patient in Re G, [1995] 3(1) Med. L. Rev. 80. In Bland and Re F, the House of Lords specifically rejected the substituted judgment approach that is prevalent in the United States.Google Scholar
See Strunk v. Strunk, 445 S.W.2d 145 (Ky. 1969) where the Kentucky Court of Appeals permitted an adult mentally incompetent twin to donate a kidney to his brother using a substituted judgment approach. The court found that, on balance, the procedure would do more (psychological) good than (physical) harm and would thus benefit the incompetent twin. Similarly, in cases like Hart v. Brown, 289 A.2d 386 (Conn. 1972), the Connecticut Superior Court permitted a twin to donate a kidney to his seven-year-old identical twin, utilizing a substituted judgment approach. That court found that benefit would accrue to the donating twin from the procedure. However, certain U.S. courts, for example, the Wisconsin Supreme Court, in In re Guardianship of Richard Pescinski, 226 N.W.2d 180 (Wis. 1975), have denied a power to authorize such a procedure on the basis of substituted judgment.Google Scholar
See U.A.G.A. §§ 1, 3 U.L.A. (1987). The Uniform Anatomical Gift Act has been enacted in all fifty U.S. states.Google Scholar
Airedale NHS Trust v. Bland, [1993] 1 All E.R. 821, 882–83. This was the majority opinion (Lords Lowry and Goff concurring).Google Scholar
Law Reform Commission Report, supra note 19, at 173.Google Scholar
Bland, [1993] 1 All E.R. at 848.Google Scholar
Williams v. Williams (1882) Ch.D. 659. Greater rights generally exist in the United States for a deceased to direct the manner and place of his burial. See Sadler, A. Sadler, B., “Transplantation and the Law: The Need for Organized Sensitivity,” Georgetown Law Journal, 57 (1968–69): At 5.Google Scholar
Law of 13 June 1986, § 12. Austrian law states that organ removal may not result in “disfigurement of the cadaver that is incompatible with the dignity of the deceased.” Bundesgesetzblatt für die Republik Österreich, June 1, 1982, § 62a(1).Google Scholar
White, S., “An End to D-I-Y Cremation?,” Medicine, Science and the Law, 33 (1993): At 151.CrossRefGoogle Scholar
For instance, in California it is an offense to mutilate a corpse. See Cal. Health & Safety Code, § 7052 (West Supp. 1988). In Pennsylvania, it is an offense to abuse a corpse. See 18 Pa. Con. Stat. Ann., § 5510 (Supp. 1990). Section 182(b) of the Canadian Criminal Code states that “[e]veryone who … improperly or indecently interferes with or offers any indignity to a dead human body or human remains … is guilty of an indictable offence.” Canadian Criminal Code, 1892, 55 & 56 Via., ch. 29 (Can.).Google Scholar
In Re A, [1992] 3 Med. L. Rev. 303.Google Scholar
Nuffield Council on Bioethics Report, Human Tissue: Ethical and Legal Issues (London: Nuffield Council, 1985): At 64.Google Scholar
Anaise, D. et al., “An Approach to Organ Salvage from Non-Heartbeating Cadaver Donors under Existing Legal and Ethical Requirements for Transplantation,” Transplantation, 49 (1990): At 293. See also People v. Bullington, 80 P.2d 1030 (Cal. Dist. Ct. App. 1938).CrossRefGoogle Scholar
King's Fund Institute Report, supra note 9, at 66. Such procedures are not disfiguring and may not even result in any apparent change in the physical appearance of the corpse.Google Scholar
Department of Health, Cadaveric Organs for Transplantation (London: Dept. of Health, 1983): Paras. 22, 26. Interestingly, this latter paragraph does not appear in the Australian Code, thus entirely reversing the effect of their guidelines on EV. See National Health and Medical Research Council, An Australian Code of Practice for Transplantation of Cadaveric Organs and Tissues (Canberra: The Council, 1989): § 6. Resuscitation is always permissible where breathing has stopped; but it is not clear whether the person is brain dead or whether brain death will inevitably occur. In these cases, the intervention is intended to be therapeutic for the patient.Google Scholar
Harris, J., The Value of Life (London: Routledge, 1985): At 242.Google Scholar
De Vita, Michael et al have made similar remarks in respect of the Pittsburgh Protocol, arguing that “[n]either procedure harmed that patient, but clearly neither provided benefit to or was indicated for that patient.” De Vita et al., supra note 13, at 378.Google Scholar
King's Fund Institute Report, supra note 9, at 65.Google Scholar
For example, Park, et al., letter, “Organ Donation,” British Medical Journal, 306 (1993): 145, in response to reports of EV practices.CrossRefGoogle Scholar
Ramsey, P., The Patient as a Person (New Haven: Yale University Press, 1970): At 210.Google Scholar
Kuhse, H. Singer, P., “Prolonging Dying is the Same as Prolonging Living—One More Response to Long,” Journal of Medical Ethics, 17 (1991): 205–06.CrossRefGoogle Scholar
Speaking extrajudicially, in 1976, Lord Hailsham, the former Lord Chancellor, said that “[t]he law at the moment is perfectly plain: If you have got a living body, you have to keep it alive, if you can.” See The Listener, July 8, 1976, at 15.Google Scholar
Airedale NHS Trust v. Bland, [1993] 1 All E.R. 821. See, for example, Goff, Lord, id. at 870.Google Scholar
Id. t 851.Google Scholar
Nancy B v. Hôtel Dieu de Québec, (1992) 86 D.L.R. (4th) 385 at 391.Google Scholar
Youngner, , supra note 5, at 323.Google Scholar
May has commented that the complete identification of person with body “does not terminate abruptly with death.” May, supra note 16, at 3. Kass graphically describes our instinctive responses to the cadaver. He suggests that our instinctive response (which he considers sound) is to treat the mortal remains of the deceased person with respect. Kass, L., “Thinking about the Body,” Hastings Center Reports, 15, no. 1 (1985): 2030.CrossRefGoogle Scholar
Law Reform Commission Report, supra note 19, at 40.Google Scholar
As in the public dissection of William Burke, who was convicted and executed for murdering individuals whose bodies he sold to Scottish anatomists.Google Scholar
Smith, Adam remarked that “[t]he idea of that dreary and endless melancholy which the fancy naturally ascribes to their condition … arises altogether from our lodging … our own living souls in their inanimated bodies, and thence conceiving what would be our emotions in this case.” See Raphael, D.D. Macfie, A.L., eds., Adam Smith: Theory of Moral Sentiments (Oxford: Oxford University Press, 1976): At 13. This does nor accurately encapsulate the nature of the harm inflicted.Google Scholar
Partridge, E., “Posthumous Interests and Posthumous Respect,” Ethics, 91 (1981): At 243–44. See also Levenbook, B.B., “Harming Someone After His Death,” Ethics, 94 (1984): 407–19. Callahan argues that interests can survive a person's death but can only be carried on by living interest-bearers. See Callahan, J., “On Harming the Dead,” Ethics, 97 (1987): 341–52.CrossRefGoogle Scholar
Steinbock, B., Life Before Birth: The Moral and Legal Status of Embryos and Fetuses (New York: Oxford University Press, 1992): At 26. This view parallels that of George Pitcher, who stated that “if we allow our unfettered intuition to operate on certain examples, it becomes abundantly clear that we think the dead can indeed be wronged.” See Pitcher, G., “The Misfortunes of the Dead,” American Philosophical Quarterly, 21, no. 2 (1984): 183–88. However, he also argues that it is only anti-mortem not post-mortem persons who are capable of being harmed after the person has died.Google Scholar
See Belliotti, R., “Do Dead Human Beings Have Rights?,” The Personalist, 60 (1979): 201–10. Feinberg also asserts that the dead are harmed whenever their interests are “set-back” in any way. See Feinberg, J., Harm to Others (Oxford: Oxford University Press, 1984): At 34.Google Scholar
Scott, R., The Body as Property (New York: Viking Press, 1981): At 260.Google Scholar
Law Reform Commission Report, supra note 19, at 45.Google Scholar
Id. at 114–15.Google Scholar
Feinberg, , supra note 60, at 45.Google Scholar
See generally the British Medical Association, Code of Practice, Advance Statements about Medical Treatment (London: BMJ Publishing Group, 1995); Airedale NHS Trust v. Bland, [1993] 1 All E.R. 821; Re T (Adult: Refusal of Treatment), [1992] 4 All E.R. 649; and Re C (Adult: Refusal of Medical Treatment), [1994] 1 W.L.R. 290. In the United States, most states have living will statutes. See Kennedy, I. Grubb, A., Medical Law: Text with Materials (London: Butterworths, 2nd ed., 1994): At 1334–39; and Patient Self-Determination Act, 42 U.S.C. §§ 1395cc, 1396a (1994).Google Scholar
Buchanan, A., “Advance Directives and the Personal Identify Problem,” Philosophy and Public Affairs, 17 (1988): At 278.Google Scholar
British Medical Association, supra note 12, at 28.Google Scholar
Royal College of Nursing, Review of the Legal, Ethical and Nursing Issues of Harvesting of Organs (London: RCN, Mar. 1993).Google Scholar
King's Fund Institute Report, supra note 9, at 66.Google Scholar
In England and the United States, relatively few persons complete and carry donor cards or other expressed authorization for organ donation. In the United Kingdom in 1992, approximately 27 percent of persons had donor cards, but only one in five persons actually carried one. See King's Fund Institute Report, supra note 9, at 66. This compares with a figure of 25 percent of persons found in 1987 to be carrying such cards/authorizations at any one time in the United States. See Evans, R.W. Manninen, D.L., “US Public Opinion Concerning the Procurement and Distribution of Donor Organs,” Transplantation Proceedings, 20 (1988): 781–85.Google Scholar
In the United Kingdom and the United States, existing relatives are always contacted prior to organ removal, although this is not legislatively mandated. In presumed consent systems, the wishes of relatives typically have a central place, subordinate only to the wishes of the deceased.Google Scholar
Department of Health, supra note 42, paras. 24, 32, 34.Google Scholar
Auckland Health Board v. Attorney-General, [1993] 1 N.Z.L.R. 235, 245.Google Scholar
Norman Cantor has stated that “[i]t is useful for every citizen to know that, in the event he or she is incompetent during the dying process, human dignity will be respected.” See Cantor, N., “Conroy, Best Interests, and the Handling of Dying Patients,” Rutgers Law Review, 37 (1985): At 570.Google Scholar
Steinbock, , supra note 59, at 30.Google Scholar
Airedale NHS Trust v. Bland, [1993] 1 All E.R. 821, 853.Google Scholar
Nuffield Council on Bioethics Report, supra note 39, at 6.7–6.9.Google Scholar
King's Fund Institute Report, supra note 9, at 65. Commentators like Ivan Illich have linked the lack of dignity in contemporary notions of death and dying to the “medicalization” of death and the invasion of life by technology. See Illich, I., Medical Nemesis: The Exploration of Health (London: Calder & Boyars, 1975).Google Scholar
Madan, T.N., “Dying with Dignity,” Social Science and Medicine, 35 (1992): At 431.CrossRefGoogle Scholar
See Harris, , supra note 43, at 221–22.Google Scholar
Orlowski, J. Kanoti, G. Mehlman, M., “The Ethical Dilemma of Permitting the Teaching and Perfecting of Resuscitation Techniques on Recently Expired Patients,” Journal of Clinical Ethics, 1 (1990): At 203.Google Scholar
Hardwig, J., “Treating the Brain Dead for the Benefit of the Family,” Journal of Clinical Ethics, 2 (1991): At 55.Google Scholar
Feinberg, , supra note 60, at 93.Google Scholar
I largely ignore Derek Parfit's contentious assertions that the competent and incompetent individual are separate “persons.” I argue, as does Buchanan, that in cases where the individual has suffered catastrophic neurological damage, no new, different person can exist even if the earlier “person” has ceased to exist. Buchanan, , supra note 66, at 283.Google Scholar
The latter strategy is favored by McHale, Jean. See McHale, J., “Elective Ventilation—Pragmatic Solution or Ethical 'Minefield?,” Professional Negligence, 11, no. 1 (1995): At 25. In Great Britain, a new central computerized registry was set up in 1995; it might feasibly record individuals' wishes regarding EV.Google Scholar
The Leicester NHBD protocol was advertised in the local press (Leicester Mercury) without any adverse comment. See Varty, K. et al., “Response to Organ Shortage: Kidney Retrieval Programme Using Non-Heart Beating Donors,” British Medical Journal, 308 (1994): 575.CrossRefGoogle Scholar
It would appear that, in the Netherlands, the implementation of such NHBD protocols without relatives permission is unlawful because relatives' permission is required by law for any medical procedure carried out on a cadaver. See Booster, M. et al., “In Situ Perfusion of Kidneys from Non-Heart Beating Donors: The Maastricht Protocol,” Transplantation Proceedings, 25 (1993): 1503–04.Google Scholar