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.
That's interesting.
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.
Comments (11)
C'mon Lydia, don't leave us hanging. What are your doubts?
Posted by CJ | October 2, 2009 8:27 PM
Oh, golly, I'd much rather waive the point and get people concerned about hard-headed empirical questions about determining death reliably while maintaining organ usability. Several years ago I had a long, long, long discussion thread on the now-defunct blog Right Reason (archives no longer available on-line except through the way-back machine) that started with a post in which I opined that vital organ transplant is relevantly similar to cannibalism. Needless to say, I don't recall that anyone agreed with me.
But if death cannot be reliably detected while maintaining organ viability, the point may be moot for all practical purposes, which is why I tend to push more on the latter point these days.
Posted by Lydia | October 2, 2009 8:41 PM
It is hard to read this without becoming furious. A person is dead, technically, when the soul has left the body. I dare any doctor to try and pin this down.
That having been said, it is a real nightmare to try to pin down the moment of death for practical purposes. I will ignore the idiocy of the quality of life arguments being taught in medical schools, these days. That is nothing more than a form of cowardice in the face of suffering. It is unchristian, in the extreme. It denies the Cross; it denies the incarnation; it denies the ability of people to join their suffering to Christ's.
A true practical definition of death will have to be based on common sense, which is as close to the Natural Law as most doctors will get.
We either need to use common sense, however that is defined, or hook the person up to a brain monitor, 24/7. We don't have really good portable brain monitors of the sort needed to really look at brain function, except in science fiction.
The Chicken
Posted by The Masked Chicken | October 2, 2009 8:58 PM
These are scientists. Not "liberal medical ethicists."
Posted by Tim | October 2, 2009 9:41 PM
The trouble is, Chicken, that if you said to yourself, "I want for some practical purpose (say, burying the person) to be sure beyond all reasonable doubt that this person is dead," and you were using *common sense*, you would err on the side of caution. You would not be burying the person while, say, his body was still warm to the touch or his heart beating. You wouldn't be trying as hard as possible to bury him while his organs were "fresh." Obviously. But for purposes of vital organ harvesting, that's pretty much exactly what they need. I believe there are some things (corneas, for example) that can be harvested from absolutely unambiguous cadavers. But if you need a kidney, you have to get it fresh. So in the very nature of the case, organ harvesting is always trying to have it both ways: "Oh, yes, this person is definitely dead. No worries. It's all tested. But the heart we got hadn't begun to decompose at all, no sirreeh. So it's ethical to transplant it to someone else." Now, such an endeavor was _always_ fraught with moral hazard, big-time. How could we be confident that was even possible at all? They thought that whole-brain death did the trick. Now that there are questions about that, it's my opinion, frankly, that it would be good for groups like the Vatican to start rethinking approval of organ harvesting.
By the way, the other "solution" is non-heart-beating donation, in which they wait some very short time, sometimes as little as 75 seconds (!!!), sometimes a lengthy five minutes, after cessation of breathing and heartbeat, to harvest organs. Whether that's worse or better than trying to gauge whole-brain death while maintaining oxygenation I haven't fully decided. But both macabre practices arise from the desire to get usable organs. No one, no one who makes any policy or is any sort of pundit, seems willing to say, "Maybe this whole organ harvesting thing was just a mistake."
Posted by Lydia | October 3, 2009 8:41 AM
By the way, the other "solution" is non-heart-beating donation, in which they wait some very short time, sometimes as little as 75 seconds (!!!), sometimes a lengthy five minutes, after cessation of breathing and heartbeat, to harvest organs.
I am a little confused here. I thought that brain death started to take place no later than 4 minutes after heart & lungs stop pumping. How long after that does the brain finish dying (in rough terms), if not supplied with oxygen? Isn't it something like 1 hour? What is the longest period of time someone came back to having their heart work after their heart stopped and there was no artificial action to move the blood along?
But of course several organs are still good after 1 hour of no heart pumping, aren't they? What I am getting at is this: I thought that the brain was the most delicate of the organs, and without someone (either the person or us acting artificially) making the blood continue to move, the brain would cease to be a viable organ of life before other organs would undergo such deterioration. Are the scenarios where the brain death is debatable all a function of artificial respiration/artificial pumping of blood, potentially keeping parts of the brain in operation? Does the problem go away if they don't bother with the artificial methods of sustaining oxygenated blood movement?
Lydia, I agree with you on just how appalling their rhetoric has become. And on how incredibly bereft of moral sense their arguments are. If the person is still within the window where there is doubt that they are dead, then you treat them as still alive.
In general, death cannot be certain to have occurred if all of the major organs are still capable of functioning. By definition, there must be breakdown of major organs to the point where their condition is incompatible with ongoing life to be reasonably certain of death. My question really gets to whether this pertains to ALL vital organs, or does the condition of one critical organ - the brain - suffice to identify that death has occurred?
Posted by Tony | October 3, 2009 11:52 AM
I didn't refresh my memory on non-heart-beating donation (NHBD) for this post, because it was more about whole-brain-dead donation, but I believe people have been revived surprising amounts of time later--my recollection (don't quote me, as I would have to recheck it) is that an hour after cessation of heartbeat has happened, though of course it is unlikely. I'm more confident that a half hour has happened, which indicates that the 5-minute or even 2-minute window, especially, for NHBD is ethically questionable, as if the person could be revived his being dead is questionable.
But they will not take organs an hour or two after cessation of heartbeat and breathing with no artificial oxygenation. They do _not_ consider them "still good." At that point they are concerned that it is unethical to transplant them into a recipient as they might have suffered damage by not being oxygenated. Five minutes is the longest time I have ever seen for NHBD, and they prefer shorter. As I said, some infants were being used at 75 seconds.
Well, they are a function of that _or_ of its being a very short window of time, as in NHBD after only five minutes. The problem doesn't go away if they don't bother with the respirator, etc., because if they don't bother with that then they have to take the organs much, much sooner. If they keep the body (or living person, depending on what you think is going on) breathing until various tests--tests for reflexes, EEG's, and others--_supposedly_ have determined that the brain has ceased functioning, then that is supposedly the more stringent criterion, and it also enables organs to be taken a longer time after the person is no longer capable of breathing on his own than in NHBD, because the respirator keeps the breathing going. That way you can give the family time to say goodbye, you don't have this incredible hurry to take the organs because there is no oxygenation, and you can take more time to try to determine death (whole-brain death). NHBD is much more rushed.
The trouble empirically that I highlight in the post and in the earlier post I link is the disturbing evidence that is emerging that those tests for complete brain death are not as reliable as previously thought or as we could wish, so people are starting openly to say that doctors are having to fudge on declaring death by brain-death criteria.
If they just let people die naturally and declared death that way, there would be less of a problem telling that they were dead. But if they did that and then waited a good hour to be really sure, the organs would not be considered usable.
Posted by Lydia | October 3, 2009 3:35 PM
If they just let people die naturally and declared death that way, there would be less of a problem telling that they were dead. But if they did that and then waited a good hour to be really sure, the organs would not be considered usable.
I see. I had mistakenly thought the window for NHBD was more like an hour. Thanks for the clarification.
Posted by Tony | October 3, 2009 3:43 PM
Tony,
here is a discussion by Smith of a new article on NHBD that you will find interesting:
http://www.firstthings.com/blogs/secondhandsmoke/2009/01/page/2/
Here is the full article:
http://jic.sagepub.com/cgi/reprint/23/5/303.pdf
Here are a couple of quotations from the article that Wesley doesn't give. The second is esp. hair-raising.
In case you didn't follow that second one, it appears to be saying that when they are doing NHBD, they _start the life support back up after declaring death_ to keep the organs fresh. But then, because they have started it back up so soon, they seriously have to worry that they are going to revive the patient! So they either drug the patient to make sure the life and organ-support activities don't revive him, or else they deliberately cut off circulation to the brain for the same purpose! Very, very wild, and terrifying. NHBD was opposed more strongly even than brain-death organ procurement by some prolifers when it first came out because of concerns that the 5-minute time period was not long enough, and this article supports that worry in spades.
Posted by Lydia | October 3, 2009 6:05 PM
Of course, all of this could be eliminated if people would just put the money into adult stem cell research. We could, potentially, re-grow hearts, etc., without having to harvest.
The Chicken
Posted by The Masked Chicken | October 5, 2009 8:04 AM
Maybe. It'd take a long time, though, to get it working as a treatment, if so, whereas of course transplants of hearts and lungs are already established medical practice from auld lang syne and do often work. Makes it very difficulty sociologically to roll that back.
Posted by Lydia | October 5, 2009 9:10 AM