The living and the dead
Transplantation medicine is beginning to take its leave from the "dead-donor rule"
Linus S. Geisler
The "dead-donor rule",
which has been accepted by transplantation medicine for some 40 years,
requires that vital organs be taken only from dead patients; living
patients must not be killed by organ removal. Novel concepts of death –
such as "brain death" and "cardiac death" – having failed to satisfy
the demand on this basis, there are now moves to justify the removal of
organs for transplantation from the undeniably living. Linus S. Geisler
warns against breaking a fundamental taboo.
An everyday scenario in the
world of transplantation medicine: A young man, with no external
injuries, is in an intensive care unit, on mechanical ventilation. He
seems to be asleep. His heart is beating, his circulatory system is
functioning, his kidneys are working as well as his metabolism; from
time to time when somebody touches him he makes certain movements.
Actually he looks healthier than some fellow-patients in the intensive
There might also be a young pregnant woman in the
ICU. Not only theoretically, but in fact it would be possible to
sustain her in intensive care, after diagnosis of "brain death", until
she gave birth to a healthy child (by Caesarean section) – a dead woman
capable of giving birth to a child? Several such successful courses of
pregnant "brain dead" women have been reported in the medical
But the young woman or the young man are regarded
not as living but as dead – contrary to all appearances. The
traditional signs of death that have been known from time immemorial –
paleness, coldness, rigor mortis, motionlessness – are not
"Brain dead" patients are individuals whose
bodies (97 percent of them) are alive. Only 3 percent of them – their
brain – is diagnosed as dead. De facto, that diagnosis means that their
brain is so severely damaged that they can be expected to die within a
short period of time even if intensive care measures, particularly
artificial ventilation, are continued. According to the criteria of an
Ethical Committee in Harvard in 1968 (Harvard Committee) they have to be
regarded as dead and may be treated as dead; life sustaining measures
may be ended but, before they are, their organs may be removed for the
purpose of organ transplantation while they are in that state.
if "brain dead" patients are treated intensively for a longer period,
days or weeks, a very few of them can regain a stable state, their
circulation, kidneys, digestive system and metabolism maintaining or
resuming normal function. Survival for years is then possible. The
American neurologist Alan Shewmon reported 57 such cases of "chronic
Most families regard the "brain dead" not as
dead but as alive. The statement of the doctors that they are only
apparently alive but dead in fact (only feigned living) is inconsistent
with any traditional concept of death. This massive violation of human
intuition is one of the main causes for doubting the rightfulness of
organ retrieval from the so-called brain dead.
For more than
40 years, the "dead-donor rule" has been accepted worldwide in the
practice of transplantation medicine – although there exists a
multitude of different diagnostic brain death criteria. The "dead-donor
rule" has made it possible for thousands of persons to live on thanks
to vital organs, like hearts, livers and lungs, taken from the "brain
But from the very beginning the concept of "brain
death" has not been accepted without contradiction, neither by the
public nor by the entirety of scientists. Numerous physicians,
philosophers, ethicists, theologians and lay people have been debating
endlessly if "brain dead" individuals are really dead. They wonder if
their death is only a legal construct for transplantation purposes and
what practical consequences these doubts should have for that
The brain death concept is like a gloomy shadow
over transplantation medicine, a shadow it would like to get rid of but
can’t. Those involved in the activity are aware of the fact that any
discussion about brain death will end in contradictions that are
Because of the difficulties in
conveying the brain death concept to the public, and in order to
increase the supply of organs, transplantation medicine has now
resorted to new means of procuring organs – from donors who suffer
apparently terminal cardiac arrest in the course of various diseases.
These are known as Non-Heart-Beating-Donors (NHBD).
Organ removal may be started
2-10 minutes after the diagnosis of cardiac arrest. This diagnosis is
made by clinical methods with or without an electro-cardiogram.
According to the so-called Maastricht Protocol from 1995 "organ donors
without a beating heart" can be classified in the following five
In the concrete sense it is
about comatose patients, patients after a stroke or a cardiac infarct
or victims of an accident. But seriously ill persons whose death is not
imminent are also suitable if they consider their quality of life no
longer acceptable – on condition that they or their surrogates provide
valid consent to the denial of life-sustaining measures.
- no heartbeat on arrival in the hospital
- organ donor after futile reanimation
- organ donor whose cardiac arrest is anticipated on withdrawal of life-sustaining measures
- cardiac arrest after diagnosis of brain-stem death
- cardiac arrest of an in-patient
procedure is not legal in Germany since according to the German Law of
Transplantation organs may be retrieved only on condition that brain
death was definitely diagnosed or if at least 3 hours have passed since
the heart stopped beating.
But in many other countries like
the United States, Austria, Switzerland, the Netherlands, Spain and
Belgium, organ procurement from donors after cardiac arrest has been
routine for years. In the USA, 8 percent of organs for transplant are
taken from donors after circulatory arrest; in Switzerland 11 percent.
order to increase the supply of organs in good condition for
transplantation, they kept trying to shorten the waiting period before
their removal – to as little, even, as 60 seconds after the last
observed heartbeat. This has been justified by arguing (clinically
refutable) that as a rule a heart which has not been beating for 60
seconds does not begin beating again spontaneously; at most it can
possibly be induced to start beating after attempts at resuscitation.
condition for the procurement of vital organs from individuals after
cardiac arrest is that the cardiac arrest must be "irreversible". But
the contradiction of this postulate is obvious: The explicit aim is to
transplant an "irreversibly" non-beating heart into another human being
with the aim that it will function perfectly in his body – which in
fact is successful in many cases.
The conceptual solution they
have tried is to manipulate the concept of "irreversibility".
"Irreversible" should, they say, refer only to the situation of the
heart in the donor’s body – not to the transplanted heart. Here they
are operating with a so-called "reversible irreversibility". Besides they
have tried to assume irreversibility already when a heart stops beating
and the decision was taken not to resuscitate, although attempts at
revival might often restore these functions.
The attempt to
take observation of what appears to be the final heartbeat as a
reliable sign of death, and as a criterion for organ retrieval, is as
disputable as the brain death concept. Claiming the observation of no
heartbeat for only a few minutes as a reliable criterion of death is
invalidated by the well known fact that successful reanimation can
sometimes be achieved after many more than ten minutes of cardiac
the principle of "brain death" nor "death after brief cardiac arrest"
can clear transplantation medicine from the suspicion that vital organs
can be retrieved only from humans who are regarded as dead but have
living bodies. "Warm corpses and cold embryos" are according to the
French psychoanalyst Michel Tort in his book "Le désir froid –
Procréation artificielle et crise des repères symboliques" the most
sought after objects of our society.
The "dead-donor rule" has
more and more become a heavy burden which transplantation medicine
cannot get rid of – much as it would like to do so – as long as it has
to stick to the rule that vital organs can only be retrieved from the
Of course there has been a search for alternatives, e.g.
to relativize the concept of brain death and to define that not total
brain failure but the failure of special parts of the brain is
sufficient for procuring vital organs. For so-called brain-stem death,
the irreversible failure of the brain stem is sufficient for organ
retrieval. The concept of other varieties of partial brain death turns
out to be even more problematic. If, for instance, failure of only the
cerebrum is considered sufficient, this principle would allow organ
retrieval from patients in a persistent vegetative state or
All alternatives that could evade the
concepts of brain death or briefly observed cardiac arrest require a
fundamental break of taboo which means quitting the "dead-donor rule".
In plain language: Quitting the "dead-donor rule" means nothing but to
legitimate the retrieval of vital organs from living individuals for
organ transplantation purposes. They are trying to pave the way for
this strategy now.
Abandoning the "dead-donor rule"
Robert D. Truog, Professor
of bioethics and anaesthesia at Harvard University, and bio-ethicist
Franklin G. Miller, of the National Institutes of Health in Bethesda,
proposed in 2008 in the "New England Journal of Medicine" (NEJM)  a
solution for the fundamental dilemma of transplantation medicine which
has so far been regarded as unethical.
The significance of
their proposal is emphasized by the fact that both scientists are
renowned worldwide in the area of bioethics and transplantation
medicine and the NEJM is known as the best medical journal.
and Miller propose no less than to abandon the "dead-donor rule" as the
essential pre-condition for the retrieval of vital organs. The
procurement of vital organs for transplantation purposes should be
legitimate and ethically indisputable. Abandoning the "dead-donor rule"
would allow them to do without unnecessary as well as indefensible
revisions of the definition of death.
As an alternative they
propose to retrieve vital organs from patients with irreversible,
devastating, neurological damage for organ transplantation purposes on
condition that there is valid consent from the patient or surrogates.
The organs are retrieved from living patients without diagnosing their
brain death. The essential message of Truog and Miller is: "Whether
death occurs because artificial ventilation is withdrawn or by organ
removal – the ethically relevant pre-condition is valid consent given
by the patient or his surrogate. If consent has been given, and
anaesthesia administered, harvesting of vital organs before death
neither injures the patient nor constitutes an act of injustice. If
precautionary measures are taken no patient will die who wouldn’t have
died anyway after ending the life-sustaining measures." 
scenario is unmistakable: The point is they are living patients with
irreversible neurological damages who haven’t been diagnosed brain dead
who would die without life-sustaining measures. By demanding
anaesthesia the authors indirectly admit these patients might feel
pain. The authors presume this procedure would meet with more unanimous
approval than when doubts about the death at the time of organ removal
prevailed. Number and quality of organs retrieved this way could
possibly be maximized.
The living and the dead
Following Truog and Miller’s
proposal would have obvious advantages. The most important point would
be the attempt at a kind of honesty. Macabre semantic attempts at
justifying the brain death concept, such as irrelevant, false,
descriptions of brain death as a kind of inner beheading, would be set
aside. Similarly, there would be no place for verbal nonsense – uttered
even by a renowned medical lawyer like Hans Ludwig Schreiber – such as
"The brain dead is more definitely (sic) dead than the clinically
dead." Following their proposal they might especially avoid the
inhumane attack on bereaved families’ when pressed to donate the organs
of their "brain dead" family member – the consequence of which can be a
lifelong trauma. The families would no longer be accused of antisocial
"individual wrong comprehension" when perceiving their family member
not as dead but as alive – contrary to many scientific assertions.
new scenario presents itself as a clinically clear matter-of-fact
proposal: the surgical removal of organs as a legal last measure with a
dying patient, causing his death.
All this cannot obscure the
monstrosity that, for the first time in the medical history of the
civilized world, doctors would be allowed to cause the death of a
patient in order to make use of him for the benefit of other patients.
procedure must not be compared to assisted suicide, as this has the
fundamental aim of ending the suffering of a dying patient. The new
procedure, by contrast, prolongs the dying process massively for hours.
The aim of medical care – to keep patients alive, to cure them or to
relieve their pain at least – is perverted thereby. The licence to kill
would become a legal medical qualification. The permanent temptation to
retrieve organs "as soon as possible" would lead to an expansion of the
"combat zone" in order to get organs. According to this concept, the
burden of organ donation is imposed on the living, not on the "brain
The new proposal to abandon the "dead-donor rule" is
not as free from technical problems as may appear at first sight. It is
founded on the premise of "irreversible" neurological damage. Every
concept of irreversibility is founded on so-called clinically
measurable facts, but also on the intrinsically and inescapably "soft"
components of medical practice. Every experienced doctor recognizes the
fallibility of prognoses of irreversibility made in good faith on the
best evidence available at the time.
next step, to acceptance of the demand that "practically irreversible"
will do, is not so far as some might think. "Practically dead" was an
often-heard argument in the debate about brain death. Alternatives to
organ donation are pursued with much less enthusiasm. These include
development of clinically useful artificial hearts, optimizing concepts
of therapies, and endeavours to cultivate special cell populations
(e.g. hepatocytes) instead of transplanting organs. But investment in a
widespread and intensive prevention effort, reducing the need of organs
in the long run, is surely paramount.
In one of his last
letters (Nov. 1992), philosopher Hans Jonas wrote to the medical
examiner Hans-Bernhard Wuermeling, almost imploringly, about organ
retrieval from the "brain dead": "Let them die beforehand." Jonas knew
very well what he was talking about because he had observed – contrary
to most philosophers – the procedure of retrieving organs from "brain
dead" individuals. But he was also aware of the fact that he was
wasting his breath.
J. Hoff, J. in der Schmitten (Hrsg): Wann ist der Mensch tot? Organverpflanzung und "Hirntod"-Kriterium. Reinbek. 1995
Kalitzkus: Dein Tod, mein Leben: Warum wir Organspenden richtig finden
und trotzdem davor zurückschrecken. Suhrkamp, Frankfurt a. M. 2009
 Truog RD, FG Miller: The Dead Donor Rule and Organ Transplantation. N Engl. J Med 359, 7, August 14, 2008
Whether death occurs as the result of ventilator withdrawal or organ
procurement, the ethically relevant precondition is valid consent by
the patient or surrogate. With such consent, there is no harm or wrong
done in retrieving vital organs before death, provided that anaesthesia
is administered. With proper safeguards, no patient will die from vital
organ donation who would not otherwise die as a result of the
withdrawal of life support.
|Geisler, Linus S.: The living and the dead
|Translation from the original German version: Renate Focke and David W. Evans, MD
|Original German version:
|Geisler, Linus S.: Die Lebenden und die Toten
|UNIVERSITAS, 65. Jahrgang, Nr. 763, Ausgabe Januar 2010, S. 4-13