A relatively recent issue of The New York Times presents a story about Mirtala Garcia and Sebastiao Lourenco (Grady 2011). Mirtala was the wife of a deceased organ donor Julio Garcia. Julio died of blood hemorrhage, and since he had previously agreed to donate his organs, Sebastiao Lourenco received his heart (Grady 2011). Mirtala and Sebastiao are now close friends, and Mirtala is glad that at least her husband’s heart is still alive (Grady 2011).
Stories like this one have become relatively frequent in the press, and they are bound to incite positive emotional reactions. However, the organ donation practice faces many problems and challenges, which have to be overcome.
This paper will deal with the specific issue of how to determine when a potential organ donor has deceased, and his or her organs can be transplanted. It will argue that the best approach is to treat a person as dead when the irreversible loss of bodily functions and the irreversible loss of consciousness have both occurred.
In addition to the romantic side of organ donation practices described in Grady (2011), there are many problems that medicine faces in this domain, and the current state of affairs has to be improved. Satel (2006) presents some devastating statistics related to the current state in the organ donation practice. In the United States, 70 000 people have their names on waiting lists for kidney transplantations (Satel 2006).
According to some estimates, most of them will wait from five to eight years until they finally receive the organ and continue with their lives (Satel 2006). If, to this number, one adds those who are waiting for a donation of some other organ, it becomes clear how many lives depend on the practice of organ donation. Nonetheless, there are many problems which have to be solved in order to reduce the number of people on those lists significantly.
Some authors, politicians and activists have put forth their own ideas of the solution to the crisis in organ donation. For instance, Richard Brodsky, an Assemblyman of the Democratic Party in New York, introduced a bill which would enlist all American citizens as potential organ donors (Should Laws Push for Organ Donation? 2010).
The bill would, of course, give an opportunity to those who, for some reason, do not want to be potential donors to exempt themselves by simply signing one document. While discussing some other ways in which countries could encourage potential organ donors, Rampell (2009) cites the case of the Israeli government.
The Israeli authorities gave priority on organ donation waiting lists to those people who had agreed to be potential organ donors themselves. However, before addressing those practical issues, the governments have to address some fundamental questions related to the legal treatment of organ donation.
The practice of organ donation is a controversial topic in areas as diverse as law, medicine and philosophy. Furthermore, as with any issue that is related to human life, religion also plays and important role in the debate. Medew (2008) writes about an academic article that dealt with the issues related to organ donation and attracted a lot of public attention.
The author of the article, James Tibballs, a professor of pediatrics, argues for the reassessment of the legal definition of death and the methods by which death is certified by the physicians who perform organ transplantation procedures (Medew 2008). Tibballs argues that the legal definitions of death are designed to accommodate for organ donation practices and are problematic on several grounds.
The Australian law defines death as “either irreversible cessation of all functions of [the] brain or irreversible cessation of blood circulation” (Mewdew 2008). Tibballs finds these criteria unacceptable because, according to him, the cessation of functions of the brain cannot be determined with certainty, and the criterion related to the cessation of blood circulation is too loose because according to it, a person is dead after his or her heart fails to restart for two minutes (Mewdew 2008).
The criterion of “brain death” in terms of the cessation of functions of the brain is problematic because it is too vague. For example, many doctors would characterize a person as brain dead even though many of his or her brain cells are still active. In addition, clinical assessment of brain activity, according to Tibballs, is insufficient because the brain activity can be assessed with certainty only by using blood flow measurements, which is rarely done in medical institutions (Mewdew 2008).
A comprehensive study by the National Health and Medical Research Council (Certifying death: The brain function criterion 1997) addresses most of the challenges raised by Tibballs.
The study presents a philosophical investigation into the nature of death, which is then used to argue that organ donation practices are conducted in accordance with the strictest ethical standards. According to the authors of the study, death is defined as, “the irreversible loss of the integrated and coordinated life of the person as a single living organism” (Certifying death: The brain function criterion 1997, p. 3).
The authors examine the three traditional approaches to the definition of death in the Western philosophical tradition in order to establish the best approach. According to the first definition, death is seen as the permanent cessation of breathing. This definition is rejected by the authors because modern medicine can keep a person alive by means of artificial ventilators even though his or her lungs cannot operate by themselves (Certifying death: The brain function criterion 1997).
The second definition that relies on the cessation of the heart beat is rejected on the same grounds (Certifying death: The brain function criterion 1997). The third definition that sees death as the irreversible loss of consciousness seems to be the most useful one, but it too needs some further improvements.
When dealing with the third definition the problem is essentially reduced to the question of what constitutes consciousness. One approach that can be found in the literature is the so-called “only higher brain” approach. The most famous advocate for this approach is Peter Singer who sees the cortical structures of the human brain, which are related to higher cognitive faculties, as being crucial for personhood (Singer 1994).
The destruction of these structures, according to Singer (1994), results in the death of a person. However, this approach is deeply problematic. The first problem that arises with this definition is that it would characterize people in the so-called vegetative state and anencephalic children as non-persons, which entails that it would be perfectly ethical to take their organs for donations (Certifying death: The brain function criterion 1997).
The second problem is that it is extremely difficult to be certain whether cortical structures have been destroyed in a person whose lower brain structures still function (Certifying death: The brain function criterion 1997). Consequently, this approach has to be rejected.
The approach which should be taken in order to determine if a person is dead is one that includes the examination of both the higher brain and lower brain structures. Accordingly, National Health and Medical Research Council (Certifying death:
The brain function criterion 1997, p. 6) argues that “human consciousness is dependent on the function of both the cerebral hemispheres … and the reticular activating system in the brain stem”. From the above definition, it follows that death takes place after both the subcortical structure and the neo-cortex have suffered extensive injuries.
The final question raised by Tibballs is whether or not the current practice in organ donation is in accordance with the legal definition. The current law defines death as “the cessation of all brain function” (Certifying death: The brain function criterion 1997). It has to be recognized that the current definition is too vague, and whether or not the current practice is in accordance with it is a matter of interpretation.
If under “all function” one assumes the functions of each particular cell in the brain, it would follow that the current practice is often in breach of the law. However, such a definition would be absurd because death is a process, and many cells in the body continue to live long after the person has died.
The definition can also be interpreted as a reformulation of the definition offered by the National Health and Medical Research Council (Certifying death: The brain function criterion 1997) in which “all brain function” is seen as the integrated function of the entire brain. The legal definition should be made more precise in this respect because the definition offered by the National Health and Medical Research Council is both theoretically sound and practically viable.
In conclusion, before dealing with the issues of encouragement of the public and other practical problems, the organ donation authorities have to reach consensus around certain fundamental questions.
The key ethical issue of the organ donation practice is the question of when a person can be regarded as dead. It has been argued that the National Health and Medical Research Council (Certifying death: The brain function criterion 1997, p. 3), which defines death as “the irreversible loss of the integrated and coordinated life of the person as a single living organism,” offers by far the best theoretical approach to the issue.
What has to be done next is to implement that theoretical framework into the legal system in order to avoid misunderstandings that damage the popularity of the practice.
Certifying death: The brain function criterion 1997, National Health and Medical Research Council, Canberra.
Grady, D. 2011, One Death Provides New Life for Many. Web.
Medew, J. 2008, Donors not truly ‘dead’ when organs removed. Web.
Rampell, C. 2009, How Can Countries Encourage Organ Donation? Web.
Satel, S. 2006, Death’s Waiting Lists. Web.
Should Laws Push for Organ Donation? 2010. Web.
Singer, P. 1994. Rethinking Live and Death, Text Publishing Co., Melbourne.