Downloaded from jme bmjjournals com on 29 October 2006 Does it matter that organ donors are not dead Ethical and policy implications M Potts and D W Evans J Med Ethics 2005 31 406 409 doi 10 1136 jme 2004 010298 Updated information and services can be found at http jme bmjjournals com cgi content full 31 7 406 These include References This article cites 14 articles 5 of which can be accessed free at http jme bmjjournals com cgi content full 31 7 406 BIBL 1 online articles that cite this article can be accessed at http jme bmjjournals com cgi content full 31 7 406 otherarticles Rapid responses Email alerting service Topic collections You can respond to this article at http jme bmjjournals com cgi eletter submit 31 7 406 Receive free email alerts when new articles cite this article sign up in the box at the top right corner of the article Articles on similar topics can be found in the following collections Other Ethics 1407 articles End of Life Decisions 416 articles Organ Donation 131 articles Notes To order reprints of this article go to http www bmjjournals com cgi reprintform To subscribe to Journal of Medical Ethics go to http www bmjjournals com subscriptions Downloaded from jme bmjjournals com on 29 October 2006 406 LAW ETHICS AND MEDICINE Does it matter that organ donors are not dead Ethical and policy implications M Potts D W Evans J Med Ethics 2005 31 406 409 doi 10 1136 jme 2004 010298 See end of article for authors affiliations Correspondence to Professor M Potts 5400 Ramsey Street Fayetteville NC 28311 1498 USA gratiaetnatura yahoo com Received 11 August 2004 In revised form 29 September 2004 Accepted for publication 11 October 2004 I The standard position on organ donation is that the donor must be dead in order for vital organs to be removed a position with which we agree Recently Robert Truog and Walter Robinson have argued that 1 brain death is not death and 2 even though brain dead patients are not dead it is morally acceptable to remove vital organs from those patients We accept and defend their claim that brain death is not death and we argue against both the US whole brain criterion and the UK brain stem criterion Then we answer their arguments in favour of removing vital organs from brain dead and other classes of comatose patients We dispute their claim that the removal of vital organs is morally equivalent to letting nature take its course arguing that unlike allowing to die it is the removal of vital organs that kills the patient not his or her disease or injury Then we argue that removing vital organs from living patients is immoral and contrary to the nature of medical practice Finally we offer practical suggestions for changing public policy on organ transplantation n a recent article Robert Truog and Walter Robinson note The practice of organ transplantation has been wedded to the concept of brain death for most of its history 1 The link is the dead donor rule which requires that patients be declared dead before the removal of unpaired vital organs for example heart liver or two paired vital organs such as kidneys 1 Movement toward changing the criteria of death from cardiopulmonary to brain based criteria was already taking place at Cape Town in 1967 due to pressure for a viable heart for transplantation 2 8 The consequence of the recipient s short survival was as the BMJ s deputy editor put it a euphoric uncontrolled epidemic of heart transplantation around the world 9 This together with demand for other organs which required that they be perfused until their removal necessitated the production of a set of legal and philosophical justifications 2 for procedures that would otherwise be seen as assault In the United States the Harvard ad hoc committee for the determination of brain death proposed in 1968 a new set of criteria for death based on irreversible coma with no discernible central nervous system activity 10 italics in original This report paved the way for the 1981 President s Commission report 11 which supported whole brain criteria for death criteria enshrined in the Uniform Determination of Death Act UDDA which is now law in almost all US states and the basis of accepted practice in many parts of the world Despite attacks upon the coherence and empirical adequacy of such whole brain criteria 12 13 the President s Commission report and UDDA remained the bible for diagnosis of death in the US In the last ten years fresh attacks on brain death criteria14 17 have eroded their perceived invulnerability Their conceptual and empirical foundations are collapsing Calixto Machado and Alan Shewmon in a newly published anthology 18 note that there are still worldwide controversies over the very concept of human death and the putative neurological grounds for diagnosing it whole brain brain stem and higher brain formulations of death There are also disagreements over the diagnostic criteria of brain death whether clinical alone or clinical plus ancillary tests Moreover a group of scholars who were strong defenders of brain based criteria of death are now favouring a circulatory respiratory view Hence the debates on human death are far from concluded www jmedethics com This trend is reflected in the paper by Truog and Robinson who note that the concept of brain death fails to correspond to any coherent biological or philosophical understanding of death 1 We believe this claim well founded There were never sound empirical grounds for criteria of death based on the loss of testable brain function while the body remains alive One difficulty is the near impossibility of diagnosing with the necessary certainty the irreversible cessation of all functions of the entire brain including the brain stem 11 while the rest of the body remains alive The Harvard tests essentially of brain stem mediated reflexes and ventilator dependence in patients whose coma appeared irremediable clearly lacked the power to make that diagnosis The many protocols now in use worldwide fail similarly Indeed their very number19 20 proclaims the fact that the syndromes they diagnose cannot be one and the same true entity And prominent among the variations is the apnoea test which may lead to the misdiagnosis of respiratory centre failure if inadequately stimulating and if stringently applied may itself be the cause of death 21 Truog and Robinson acknowledge that many patients currently diagnosed brain dead do not in fact meet the American legal requirements governing that practice They