Via Wesley J. Smith comes the news that Nature journal is peddling the snake-oil of "honesty" in redefining death. Whenever a liberal medical ethicist says, "Let's just be honest about what we're doing," run for the hills.
In this case, being "honest" about defining death--for purposes of organ transplant, of course, what else?--means, "Let's admit that we don't have very good criteria of whole-brain death, that we sometimes make mistakes, that we can't really be sure that people diagnosed as having suffered whole-brain death really have suffered permanent whole-brain death, including the brain stem. Let's shift to talking instead about what makes someone the person he was, what makes one alive in a meaningful sense. Okay?"
Obviously, not okay. The article contains some interesting admissions. For example,
In particular, [doctors] struggle with three of the law's phrases: "irreversible," "all functions," and "entire brain," knowing that they cannot guarantee full compliance. They do know that when they declare a death — according to strict clinical criteria, the principles of which are outlined in the original report of the president's commission — that the person is to all intents and purposes dead. But what if, as is sometimes the case, blood chemistry suggests that the pituitary gland at the base of the brain is still functioning? That activity has nothing to do with a person being alive in any meaningful sense. But it undermines a claim that all functions of the entire brain have ceased. As do post-mortem observations that relatively large areas of tissue can be metabolically active in different brain areas at the time death is declared.
The criterion of irreversibility raises the question of how long one should wait to be sure that no function will re-emerge. Is the six hours recommended in the commission's report sufficient? Physicians who have been required by circumstance to wait much longer have occasionally observed a brainstem-mediated reflex — a cough, for example — up to 36 hours after they would have declared death.
Ideally the law should be changed to describe more accurately and honestly the way that death is determined in clinical practice. Most doctors have hesitated to say so too loudly, lest they be caricatured in public as greedy harvesters eager to strip living patients of their organs.
No! Why would anyone think a thing like that?
The problem that conservative pro-lifers must face--dare I say with honesty?--is this: There is increasing empirical evidence that being sure beyond reasonable doubt that a person is dead while maintaining the usability of his vital organs is a hopeless attempt to square the circle. The point is not that we can never tell when someone is dead. It is not as though Mary, Martha, and the mourners couldn't be sure that Lazarus was dead when they opened his tomb. The problem arises from the organ transplant goal itself. You cannot wait until someone's heart and breathing have been stopped for hours, the body is cold, and rigor mortis has set in, and obtain usable kidneys and heart from that corpse.
That problem, indeed, is the reason that whole-brain death was investigated and defined in law. It was hoped and believed that it would be possible to maintain mechanical oxygenation of the chest and trunk, where the desired organs are located, while in essence determining objectively that a person was as biologically dead as a decapitated body. But even if definitely-dead-donor vital organ donation is ethically as pure and legitimate as anyone could wish (about which I, radically, have some doubts), its very possibility is becoming increasingly questionable.
Wesley Smith is holding the line staunchly on the dead donor rule. He is rightly appalled at the Nature article. But I'm inclined to be far less sanguine than he is that merely unifying standards for declaring death, keeping those standards tight, and mandating training in them, will or even can in principle take care of the problem. What about that pituitary gland? What about the possibility of brain-stem activity 36 hours after apparently unimpeachable criteria concluded that the brain stem had permanently ceased functioning? And there have been other articles saying even more disturbing things. What about the evidence of pain responses in supposedly dead donors? What about people diagnosed as brain-dead who cry? What about patient movements which can only questionably be attributed to spinal reflex?
There comes, it seems to me, a point at which we should realize that there is a problem with just trying to patch up our standards again and again. We should probably realize instead that there is no good way to maintain heartbeat, respiration, and vital organ quality, even artificially, while at the same time being sure beyond reasonable doubt that the patient is biologically dead. Walking that line may just be impossible. Notice that I have not used the word "certainty." I'm not demanding certainty, but I am demanding a very high degree of justification.
It's one of those odd truths about empirical knowledge that learning more can make you less justified in some belief than you were before. It may well be that back when we knew less, in the 1980's when the uniform legal definition of death was crafted, it was reasonable to assume that we could objectively and reliably test for permanent and complete cessation of all brain activities, including activities of the brain stem. But we cannot ignore the present state of the evidence, which is far more disturbing on that point, just because we do not want to give up vital organ donation.
The time may have come for pro-lifers to reconsider the ethical nature of vital organ donation.
Meanwhile, the editors of Nature are running as fast as they can in the opposite direction. In fact, they tip their hand in an alarming fashion--alarming because of the confidence it shows. I guess they think the general public won't find out what they are saying right out there on the Internet. They want to focus group this "honesty" business to make sure it doesn't alarm the natives and drive down donor numbers.
The time has come for a serious discussion on redrafting laws that push doctors towards a form of deceit. But care must be taken to ensure that it doesn't backfire. Learning that the law has not been strictly adhered to could easily discourage organ donation at a time when demand for organs already vastly exceeds supply. Physicians and others involved in the issue would be wise to investigate just how incendiary the theme might be, perhaps in contained focus groups, and design their strategy accordingly.
The concern for avoiding "deceit" in a paragraph that openly calls for careful crafting of a propaganda strategy is richly ironic.
The issue is even more incendiary when we consider the push among some ethicists for presumed consent--the legal change according to which anyone who hasn't refused to be a donor would automatically be a legal donor. (Cass Sunstein likes this particular policy. See here for quotations that substantiate this in a post defending him against "witch-hunters" on the right.)
I suppose that policies that rope in more and more people as presumed donors would be a logical next step to overcome donor reluctance, a reluctance that arises quite naturally from reading articles like the one in Nature. As I reported here, even "organ conscription" now has its bioethical defenders.
If there were ever a time to stand athwart the course of history shouting, "Stop!" this would seem to be it.
Update #1: Events are moving fast. Hard on the heels of the above article comes an article in The Journal of Medical Ethics stating openly that taking organs from brain-dead individuals is taking them from biologically living individuals and apparently advocating continuing to do so. The statements are available on-line in a long abstract; the article is not yet available on-line. See Smith's post here. The author calls vital organ procurement an "imperative" and states, "[T]he medical profession and society may, and should, be prepared to accept the reality and justifiability of lifeterminating acts in medicine..." (By the way, the commentator who said that these aren't liberal bioethicists should retrench, now.)
Update #2: While doing some googling, I came across this article in America magazine which, predictably, accuses those questioning whether organs are being taken from living donors of insisting on "certainty." The article quotes JPII as saying, "[A] health worker professionally responsible for ascertaining death can use these [neurological] criteria in each individual case as the basis for arriving at that degree of assurance in ethical judgment which moral teaching describes as ‘moral certainty'..." One wonders what JPII would have said if he could have seen more recent evidence on that question and read the article by Miller, cited in Update #1, in which he openly refers to "the increasingly transparent fiction that the brain dead are really dead." Moral certainty is a high standard, and I think anyone who reads up on this subject now should be shaking his head over whether we can have it concerning someone still breathing and with a heartbeat but diagnosed as having experienced whole-brain death. The America article, by the way, while claiming to deal with empirical concerns about brain death, by no means deals with all the relevant evidence on this subject, including the 2008 article by Karakatsanis which I discussed here or the evidence of pain responses during organ procurement discussed here. It also implies that JPII knew all the relevant evidence, but frankly, that is bunk. The doubts about criteria for brain-death that are emerging now are being collated, specified, and gathered in ways that were not available and openly discussed this widely in the scientific community, as far as I know, even a few years ago. In fact, one gets a distinct and eerie feeling that the lid has been kept down on it until it was concluded that the public were "ready," or possibly ready, for the medical-scientific-ethical community to begin saying more often that brain-death diagnosis is a very troublesome and tricky business. I do not think the Pope is to be blamed if he didn't have all the facts nearly a decade ago.