Are DCD Donors

Dead?

BY DON MARQUIS

Donation after cardiac death protocols are subject to two constraints. The first is that organ removal

must occur as soon as possible after cardiac arrest. The second is that it must not occur so soon that the donor

is not yet dead. Can both constraints be satisfied at once? DCD protocols are widely accepted, so arguments

for them have apparently been persuasive. But this does not mean they are sound.

E
ver since brain death came to be understood as The typical DCD case goes like this: The pro-
death of the whole human being in the 1970s, spective donor, although not brain dead, has suffered
organ transplantation has, for the most part, extensive neurological damage and is on life sup-
been closely linked to it. The typical donor has been port.1 Following a decision from the persons family,
somebody declared brain dead while on life sup- life support is withdrawn and cardiac arrest results. If
port and while the heart continues to beat, thereby the heart does not resume beating on its own within
keeping the organs suffused with oxygen. However, two to five minutes, it will never resume beating on
because relatively few healthy peoplepeople with its own. In a DCD protocol, after one of these in-
suitable organshave died in just this way, the num- tervals, death is declared. Consent for organ dona-
ber of organs available for transplantation has been tion has been obtained from the donor or his family,
much less than the number of people needing them. and after death is declared, the donors organs are
One strategy for making up the difference has been removed for transplantation as quickly as possible.
the introduction of donation after cardiac death pro- DCD protocols are subject to two major con-
tocols, which provide for vital organ donation from straints. On the one hand, organ removal must oc-
people declared dead on the basis of cardiac death. cur as soon as possible after cardiac arrest to prevent
organ damage. The point of organ transplantation
Don Marquis, Are DCD Donors Dead? Hastings Center Report 40, is to provide the recipient with healthy organs,
no. 3 (2010): 24-31. but because the donors circulation has stopped,

24 HASTINGS C E N T E R R E P O RT May-June 2010

the donors organs are deprived of be extrapolated from adults to in- respiratory and circulatory functions
oxygenated blood. The longer the fants is arguable.4 This issue can be supply oxygenated blood to potential
deprivation, the more likely organ resolved only after the acquisition of donor organs. As a result, the warm
damage will be. On the other hand, more data, however, and I set it aside, ischemia that otherwise would cause
the organs must not be removed so pending the data. organ damage is retarded or prevent-
soon after cardiac arrest that the do- Other issues cannot be set aside so ed. The number of brain-dead poten-
nor is not actually known to be dead. easily. The most obvious starts from tial organ donors is far from sufficient
A DCD protocol is justified only if, an observation about the very term to meet the need for transplantable
given the former constraint, the lat- donation after cardiac death. A gift organs, however, and the DCD pro-
ter constraint can be satisfied. Those of cardiac life received from some- tocol is designed to generate a source
who defend DCD protocols believe one who has suffered cardiac death of vital organs from individuals who
that both constraints can be satisfied. strongly suggests a contradiction. If satisfy the first criterion for being
Since DCD protocols have won the donors heart is truly dead, then it dead, but not the second.
wide support, these arguments have would not be able to function in the Both criteria for being dead refer
apparently been persuasive. That does recipient. If the transplanted heart not merely to the cessation of a vital
not mean they are sound, however. I functions in the recipient, then it was function, but to the irreversible cessa-
shall argue that DCD donors are not not dead when it was still in the do- tion of that function. Robert Veatch
known to be dead. nor. If the donors heart was not dead, has pointed out that, because the do-
then the donor should not have been nated hearts in Bouceks transplants
Death and Reversibility pronounced dead on the basis of car- actually were restarted in the infant
diac death. If the donor was not dead, recipients, irreversible cessation of

A n article in the August 2008 is-

sue of the New England Journal
of Medicine illuminates how the dec-
then Bouceks transplant did not ac- cardiac function in Bouceks infant

Irreversibility entails permanence; permanence does

laration of death in a DCD protocol
can be problematic. Mark Boucek not entail irreversibility. Therefore, given the plain
and colleagues reported on three
successful infant heart transplants meanings of the terms, the permanence of the
performed on the basis of DCD.2
Bouceks investigational protocol, cessation of circulatory function in DCD donors does
approved by the ethics committee
at his institution, permitted death not entail its irreversibility.
to be pronounced only seventy-five
seconds after cessation of donor car-
diac function, much less than the cord with the dead donor rulethe donors plainly had not occurred.
two-minute minimum interval rec- axiom of the transplant community Veatch concluded that this consider-
ommended by the Society of Critical that stipulates that vital organs may ation could be expanded to an objec-
Care Medicine.3 be taken only from the dead. tion, not just to Bouceks transplants,
The shorter interval can be both This issue can be developed in an- but to any heart transplant from a do-
defended and criticized. On the one other way. The orthodox definition nor declared dead on the basis of the
hand, the longest reported period of death in this country goes like this: DCD protocol. He concluded that it
between cardiac arrest and autore- would simply not be possible to per-
suscitation (that is, the resumption An individual who has sustained form successful heart transplantation
of a heartbeat without external re- either (1) irreversible cessation of in a manner consistent with the dead
suscitation) in DCD cases has been circulatory and respiratory func- donor rule after death pronounced
sixty seconds, and adopting a shorter tions or (2) irreversible cessation on the basis of cardiac criteria.6
interval minimizes damage from of all functions of the entire brain, Note that Veatchs objection is not
warm ischemia, therefore maximiz- including the brain stem, is dead. primarily to the transplantation itself,
ing the likelihood that the transplant A determination of death must be but to the declaration of death that,
will work. On the other hand, one made in accordance with accepted given the dead donor rule, made the
might wonder whether the patients medical standards.5 transplant morally permissible. This
were genuinely dead. To begin with, makes it possible to expand Veatchs
whether there are now sufficient data Most cadaver organs have been ob- objection even further than he did.
to justify the seventy-five second tained from individuals who meet the Consider DCD donors who, in ad-
interval and whether the data that second condition, but not the first. dition to successfully donating a
presently existor will existcan In these people, ventilator-supported heart, also donate other vital organs.

May-June 2010 H A S T I N G S C E N T E R R E P O RT 25
 One could argue that because cessa- The Appeal to Permanence if the condition is never actually re-
tion of cardiac function was actually versed. A condition is irreversible if
reversed in these cases, cessation of
cardiac function was reversible. Since
cessation of cardiac function was re-
T he DCD protocol has been de-
fended on the grounds that
because the cessation of circula-
the condition never could be reversed.
In short, irreversibility entails perma-
nence; permanence does not entail
versible, the DCD donors were not tory function in a DCD donor is irreversibility. Therefore, given the
really dead, even though death was permanent, such donors are really plain meanings of the terms, the per-
pronounced. Since the donors were dead. John Robertson has defended manence of the cessation of circula-
not really dead, donation of any vital the DCD protocol by appealing to tory function in DCD donors does
organ would, in these cases, violate commonsense views of death, for not entail its irreversibility. Accord-
the dead donor rule. the person is not now breathing and ingly, if a patient is pronounced dead
Veatchs objection can be ex- never will again.7 James Bernat, who solely on the basis of the permanent
panded even more. Consider cases of has defended the orthodox defini- cessation of circulatory function,
DCD donation in which the heart is tion of death on many occasions, has then, unless the patient is brain dead,
not one of the organs transplanted. argued that we should understand the sufficient conditions for being de-
Bouceks transplants suggest that in death as the permanent cessation of clared dead have not been met.
such DCD cases, cardiac donation critical functions of the organism as a An example also shows what is
may have been possible. If, in any whole.8 Plainly, the cessation of cir- wrong with the appeal to perma-
such case, the heart could have been culatory and respiratory function in nence. Suppose that Joe has a heart
transplanted successfully, then in any all DCD donors, even in Bouceks in- attack and his circulatory function
such donor, cessation of circulatory fant donors, is permanent. The point stops. Fred, a physician standing next
function could have been reversed. of pronouncing death after cardiac to Joe, refuses to perform cardiopul-
If cessation of circulatory function arrest only when autoresuscitation is monary resuscitation on Joe because
could have been reversed, then the no longer possible is to ensure that Joe is a rival for the affections of his
donor was not dead and the dead do- cessation of cardiac function is per- love interest. No one else resuscitates
nor rule was violated. manent. If irreversibility and perma- Joe. Suppose that cardiopulmonary
Reflection on Veatchs critique of nence are the same thing, then DCD resuscitation would have been suc-
Bouceks transplants ultimately leads organ donors are dead, or so goes the cessful, but because it was not per-
to a critique of any declaration of argument.9 formed, cessation of Joes circulatory
death in a DCD protocol. The cen- Are permanence and irreversibil- function was permanent. Was Freds
tral point is that the donors loss of ity the same? To say that a patients refusal to act wrong? Not if we un-
cardiac function is, for all we know, medical condition was permanent is derstand the irreversible cessation of
reversible. If the cessation of cardiac to say that after his medical condition circulatory function as equivalent to
function is reversible, then cardiac was acquired, the patient lived with the permanent cessation of circulatory
death has not occurred. If cardiac it his whole life. But a patient might function, for the cessation of circula-
death has not occurred, then there is live his whole life with a curable tory function in Joe was permanent
no basis for a declaration of death. I and, therefore, reversiblemedical as soon as his circulatory function
shall call this objection to the DCD condition. Many people in develop- stopped. On that understanding, Joe
protocol the reversibility objection. ing countries live their entire lives was dead as soon as he collapsed, and
Bouceks transplants make the with medical conditions that would Freds failure to perform resuscitation
reversibility objection vivid. How- have been eliminated had they lived was not wrong, for he had no obli-
ever, the reversibility objection has in the developed world. To say that gation to resuscitate a corpse. But of
long been implicit in discussions of a patients medical condition was ir- course this conclusion is absurd.
DCD protocols. Justifications of the reversible, however, is to say that after Consideration of Bouceks heart
DCD protocol can be understood as the medical condition was acquired, transplants provides an additional
responses to this reversibility objec- no known intervention could have reason for rejecting the appeal to per-
tion. The DCD protocol is justified eliminated it. Thus, it might well be manence. The cessation of circula-
only if at least one of these responses the case that a patients aortic steno- tory function in Bouceks donors was
is sound. There are two basic kinds of sis was a permanent condition of his permanent for the very simple reason
responses, which I shall call the ap- heart, for after he acquired it he lived that the donor heart was removed. In
peal to permanence and the appeal with it his whole life, but it does not these infants, the cessation of circula-
to a norm. follow that the patients aortic steno- tory function was permanent because
sis was irreversible, for perhaps the their hearts were removed, and the
patient could have undergone open- removal of their hearts was permis-
heart surgery and had the stenosis sible because the cessation of circula-
corrected. A condition is permanent tory function was permanent. This

26 HASTINGS C E N T E R R E P O RT May-June 2010

attempt at justification of the DCD respiratory functions in the donor is dissolved is the corresponding occur-
protocol wears its circularity on its irreversible, and the donor is dead. rent property. Fragile is a dispositional
sleeve. Here is a defense of Robertsons property; broken is the correspond-
Since DCD actually stands view. The normative sense of ir- ing occurrent property. Flammable
for donation after cardiac death, reversible to which Robertson is is a dispositional property; in flames
should the criterion of cardiac death appealing is the sense of cant be re- is the corresponding occurrent prop-
be the permanence of the cessation versed, which is the sense of cant erty. Reversible is a dispositional
of cardiac function instead of the in You cant cross the intersection property (in most contexts); actually
permanence of the loss of circulatory when the light is red! This sense reversed is the corresponding occur-
function? The permanence of the ces- of cant is plainly normative. Of rent property.
sation of cardiac function in Bouceks course, unless being hit by a car com- Now we are in a better position
cases is quite incompatible with the plicates the analysis, it is physiologi- to understand Robertsons argument.
success of his transplants! Therefore, cally possible to cross the intersection Robertson is claiming that, in DCD
if we take for granted the appeal to when the light is red, as we all know. donors, because the cessation of cir-
the permanence of the loss of cardiac The analysis of Robertsons argu- culatory function should not be re-
function, Bouceks donors were not ment requires a brief detour into the versed, the context of irreversibility
dead precisely because the transplants distinction between dispositional and is normative, and in this normative
were successful. occurrent properties. Reversible is, in context, irreversible acquires an
We may safely conclude that the most contexts, a dispositional prop- ethical meaning. But does irrevers-
appeal to permanence cannot jus- erty, and in this way is akin to solu- ible acquire an ethical meaning in
tify a death declaration in accordance ble, fragile, or flammable. A thing has DCD contexts? One reason to think
with the DCD protocol.
Consider patients who enter the emergency room
The Appeal to a Norm
with no heartbeat and are successfully resuscitated.

D CD protocols are most often de-

fended by claiming that, in the
context of such protocols, irrevers-
These patients are in the same physiological state as

ible . . . is best understood not as an patients declared dead on the basis of the
ontological or epistemic term, but as
DCD protocol.
an ethical one.10 According to John
Robertson:
a dispositional property in virtue of it does would be that, in general,
Because the patient had issued a having the capacity to exhibit a cor- when moral or legal norms apply,
prior directive against resuscita- responding occurrent property under terms that are ordinarily dispositional
tion or his family has lawfully re- certain conditions. We say that the acquire normative meaning.
quested a do not resuscitate order, table salt in your salt shaker is water- Let us test this assumption. Sup-
no resuscitation after cardiac ar- soluble, for example, not in virtue pose I am examining your gold ring.
rest would be morally and legally of it actually being dissolved in wa- It would be wrong for me to dissolve
acceptable in situations of poten- ter, but because it has the capacity to the ring by dropping it in aqua regia.
tial non-heart-beating donation dissolve when put in water. We say Because a norm applies in this case,
[DCD donation]. Therefore, the that something is fragile, not (typi- would anyone say that insoluble has
patient may legitimately be viewed cally) in virtue of its being actually an ethical meaning and that, there-
as having irreversibly lost all car- broken, but because it would break fore, the ring is insoluble in aqua re-
diopulmonary function when if not handled carefully. We say that gia? Suppose that I am holding a plate
death is pronounced on cardiopul- kindling is flammable, not (typically) of your fine china. It would be wrong
monary grounds.11 in virtue of its actually burning, but for me deliberately or carelessly to
because it has the capacity to burn if drop that plate. Because a norm ap-
Robertson is claiming that because ignited. Analogously, we say, in ordi- plies in this case, would anyone say
cessation of circulatory function in nary contexts, that some condition that not fragile has an ethical mean-
the donor should not be reversed, is reversible, not because the condi- ing in this case and that, therefore,
the appropriate sense of irreversible tion actually has been reversed, but your fine china is not fragile? In these
that applies to the cessation of circu- because the condition is such that contexts, in which moral norms ap-
latory function is normative. There- it would be reversed under circum- ply, ethical interpretations of these
fore, the cessation of circulatory and stances that could obtain.12 Thus, dispositional terms seem incorrect.
soluble is a dispositional property; Therefore, the assumption that would

May-June 2010 H A S T I N G S C E N T E R R E P O RT 27
 justify Robertsons inference does not example, suppose her dead husband Fred had to Joe when Joe was alive
seem to be true. In the absence of this came back to life after another year. If Fred no longer has to Joes remains,
justification, Robertsons claim seems she had married another man in the not because death has an ethical
to be merely special pleading. meantime, then she would be guilty meaning, but because a necessary
Is there some other way of defend- of bigamy. Consider another exam- condition of Freds having an obliga-
ing the view that irreversible ac- ple. The obligation of my children tion to Joe is that both Fred and Joe
quires a normative meaning in DCD (who are my beneficiaries) to respect exist. Joes remains are not Joe. Put
situations? In fact, there are argu- my property rights will cease when I generally and abstractly, A has an
ments that being dead is special, and die. If my death were reversible, think obligation to B only if both A and B
that the judgment that someone is of the complications that could ensue exist.15 This claim is not based on a
dead, unlike judging that something after they had sold or begun to in- truth about obligations. Rather, it is
is soluble or that something is fragile, habit my house! Tomlinson is correct: basically about statements concern-
does have an ethical meaning. Rob- irreversibility is an important part of ing relational properties. When A is
ert Veatch has defended this view at our concept of death, and deaths ir- obligated to B, A stands in a moral re-
length.13 Tom Tomlinsons defense of reversibility has ethical consequences. lation to B. In order for A to stand in
the DCD protocol appeals to this un- Tomlinsons view of the nature any relation to B, both A and B must
derstanding of what death is: of the relationship between irrevers- exist. Similarly, statements like A is
ibility and ethical judgment is more taller than B and A is to the left of
the determination of death autho- problematic. The claim of irrevers- B can be true only if both A and B
rizes many decisions and actions ibility in DCD contexts is based on exist. Therefore, after an individual
that presume that the deceased has an individuals, or his surrogates, transitions into irreversible nonexis-
lost most of the interests which right to refuse careon a moral and tence (the colloquial term for this is
she had in life. This is a presump- legal norm. The irreversibility of dies), one can no longer have duties
tion necessary for supporting the death seems different. In the above to what is remaining because there is
ethical conclusion that our former examples, the ethical importance of no longer a him to whom one has
obligations to protect or account irreversibility depends on the actual duties, and never will be again.
for those interests have ended. If it nature of death. The dependency re- Tomlinson is mostly correct: The
were the case that her loss of those lation is reversed. death of an individual and our ob-
interests was not reasonably be- This reversal has an explanation. ligations to that individual are con-
lieved to be irreversible, then our The notion of irreversible nonex- nected. However, the connection is
obligations to protect those inter- istence is central to our notion of this. The fact that a person is dead is
ests could not have ended with death. Its centrality to our notion of the basis for a change in our obliga-
the determination of her death. death is based, not on moral norms, tions. The reason is that a necessary
Thus, if death has these ethical but on biological reality, whatever condition for having an obligation
implications for the demise of our moral norms might be. Although to someone is that there is some-
our obligations to the deceased, people can come back from a tough one to have the obligation to. And
its determination must include bout with pneumonia, people, as a the reason for this is that a neces-
a judgment of irreversibility suf- matter of fact, cant come back from sary condition for one individual to
ficiently secure to warrant the the dead. That is because corpses can- stand in a relation to another is that
ethical judgments that follow. A not be reconstituted into living indi- there are two individuals. Tomlinson
revealing translation of irrevers- viduals. The fact that corpses cannot claims (correctly) that the judgment
ible in criteria for determining be reconstituted into living individu- that an individual is dead depends
death, then, is the possibility of als explains why we have no moral on the judgment that his condition
reversal is not ethically significant qualms about cremation. Put collo- is irreversible. However, he claims
and this translation has useful ap- quially, when your life is over, it is re- (incorrectly) that the judgment that
plication to the Pittsburgh [DCD] ally over. Death is, as a matter of fact, an individuals condition is irrevers-
protocol.14 an irreversible state. Indeed, death ible depends on our obligation to an
is irreversible nonexistence. (Those individual not to resuscitate him if a
Almost everything that Tomlinson who are religious may want to add, DNR order was requested. Tomlin-
says about the irreversibility of death on this earth.) sons argument gets the dependency
is true. Some examples illuminate his The ethical significance of this has relation backwards. Therefore, it is
position. When a womans husband an explanation. We are essentially liv- unpersuasive.
dies, she no longer has the obligation ing human beings. At the moment There is another problem with the
not to marry another individual. If of a human beings death, that indi- appeal to a norm as a basis for the
her husbands death were reversible, vidual human being no longer exists judgment of irreversibility and, there-
then this would be problematic. For and never will again. The obligations fore, as a basis for pronouncing death.

28 HASTINGS C E N T E R R E P O RT May-June 2010

The Tomlinson-Robertson view leads terms of the appeal to a norm there- declarations will claim that because
to the consequence that DCD donors fore fails. the parents of Bouceks infants re-
should be judged dead on the basis Here is another difficulty with quested the removal of life supports
of an appeal to a norm. Consider pa- the appeal-to-a-norm defense of the and because physicians had an ob-
tients in the television show ER who DCD protocol. According to this ligation to respect that request, the
enter the emergency room with no defense, the obligation to respect a cessation of cardiac function in those
heartbeat and are successfully resusci- patients right to refuse medical care infants was irreversible. This certainly
tated. Such patients, when they enter makes the condition of the patient seems false. The cessation of cardiac
the emergency room, are in the same irreversible. Consider the following function in Bouceks infants was not
physiological state as patients de- case. An individual is in a severe au- irreversible, either in a physiological
clared dead on the basis of the DCD tomobile accident and arrives in the sense or in an ethical sense. The cessa-
protocol. As a consequence, there will emergency room. You are the emer- tion of cardiac function could actual-
be many pairs of patients whose bod- gency room physician. You judge that ly be reversed because the transplants
ies are in exactly the same state, even the patients blood loss is so great that were in fact successful, and the cessa-
though one member of the pair is the patient will soon die unless she re- tion of cardiac function ought to have
considered dead and the other alive. ceives a blood transfusion. Her surro- been reversed for the sake of the lives
But death is a state of a body. There- gates decline the transfusion because of the transplant recipients. It follows
fore, this consequence of DCD death the patient is a Jehovahs Witness. You that surrogate refusal of resuscitation
declarations is unacceptable. respect the refusal and she dies. You in DCD cases is not sufficient to un-
The principle on which this ar- would say, of course: Her condition derwrite the irreversibility of cardiac
gument is based is important and was reversible! I wish I could have function. According to the appeal-
deserves a bit of comment and expla- transfused her! to-a-norm defense of the DCD
nation. There has been controversy If the appeal-to-a-norm defense of protocol, surrogate refusal of resusci-
concerning the definition of death in the DCD protocol is sound, however, tation in DCD cases is sufficient to
recent decades. Folks who do bioeth-
ics have proposed many candidate When a DCD donor is declared dead, it is not known
definitions. Some of the candidates
are irreversible loss of higher brain that he has suffered irreversible loss of circulatory
function, irreversible loss of all func-
tions of the entire brain, and irrevers- and respiratory functions. Therefore, given the
ible loss of circulatory and respiratory
function. For all I know, perhaps
standard legal definition of death, DCD donors are not
someone has argued that a body is known to be dead at all.
dead only when it is no warmer than
its surroundings. Perhaps others have
argued that only rigor mortis is suf- you would be wrong to say that. Rob- underwrite irreversibility. Therefore,
ficient for death. It is important to ertson seems to be committed to the the appeal-to-a-norm defense of the
note that all of these candidate defi- view that since reversing the patients DCD protocol is unsound.
nitions, as different as they are, have condition was not legally or morally Objections to Robertsons argu-
something in common. They propose permissible, the patient should have ment are regularly dismissed by pro-
to set out the conditions of a human been viewed as being in an irrevers- ponents of the DCD protocol on
body that justify calling that body ible condition. This seems clearly in- the grounds that the obligation to
dead. They presuppose a general correct, but this line of reasoning is respect the wishes of the patient or
principle concerning death: If an in- the same as that used in the appeal- his family is everywhere accepted in
dividual is dead in virtue of his body to-a-norm defense of the DCD pro- medical ethics.16 This defense of the
being in state S, then all other indi- tocol. Therefore, the line of reasoning argument commits the straw man fal-
viduals in state S are also dead. This used in the appeal-to-a-norm defense lacy. Rejecting Robertsons argument
principle entails that if DCD donors of the DCD protocol is unsound. is quite compatible with respecting
are dead, then all other individuals Many of the arguments given so the wishes of the family or the pa-
whose bodies are in the same state are far against the appeal-to-a-norm de- tient. The mistake in Robertsons
also dead. Since many individuals in fense of DCD death declarations argument is the inference from that
the same bodily state as DCD donors have involved a considerable level of obligation to the conclusion that the
are plainly not dead because they are abstraction. Let us return to actual proper meaning of irreversible for
resuscitated, we may conclude that cases and consider Bouceks infant the purpose of death declarations is
not all DCD donors are dead. The donors. Those who adopt the appeal- normative.
justification of the DCD protocol in to-a-norm defense of DCD death

May-June 2010 H A S T I N G S C E N T E R R E P O RT 29
 It is useful to put the above because, as far as is known, the dead that organ donation is permissible if a
points in context. What was above donor rule is violated, or (2) the dead prospective organ donors neurologi-
called the reversibility objection to donor rule should be either jettisoned cal injuries are so severe that he lacks
the DCD protocol might seem to or carefully qualified or fudged. Nei- a future that would contain experi-
some to have force. According to the ther alternative seems appealing. If ences he would value, provided the
appeal-to-a-norm defense of DCD donation after cardiac death is uneth- appropriate consent is in place. One
death declarations, normative consid- ical, then a procedure that saves many might argue that, in such cases, an in-
erations bequeath a normative mean- lives ought to be halted. Rejecting or dividual is not harmed by the removal
ing to irreversibility. The point of revising the dead donor rule seems to of his vital organs, and ending his life
that appeal is to rebut the reversibility involve the wrongful ending of inno- therefore does not wrong him.20 Here
objection. Is the appeal-to-a-norm cent human life. is another strategy. According to or-
defense a bit of special pleading be- A number of strategies might be thodox Catholic doctrine, it is always
cause of the need for more transplant- offered to justify the moral permis- wrong intentionally to end the life
able organs, or can it be justified? sibility of violating the dead donor of an innocent human being. Some
How should we go about answer- rule in narrow circumstances. For leading scholars have tried to defend
ing this question? We can look at example, Franklin Miller and Robert this Catholic doctrine by appealing
contexts involving what we would say Truog have argued that withdrawing to the principle that it is wrong to
about other (ordinarily) dispositional life support from patients with devas- kill anyone with the basic natural ca-
properties when moral norms apply. tating neurological injuries with the pacity for rational agency.21 Because
We can also look at other medical valid consent of surrogates should be fetuses have the basic natural capac-
contexts in which moral norms ap- understood as the ethically permis- ity for rational agency, this principle
ply, to see what someone would say sible killing it really is. They have does support the view that abortion
about reversibility in them. Consider- gone on to defend the inference that is wrong. However, it is hard to see
ing these other contexts is important removing vital organs from the same how it could support the wrongness
because justification involves, either kinds of patients with the valid con- of killing a typical DCD donor. The
explicitly or tacitly, appeal to what sent of surrogates is no different in devastating neurological injuries that
is more general than that which is principle and is another instance of typically qualify one for candidacy
justified. ethically permissible killing.17 James for a DCD protocol have destroyed
The analysis in this essay has Bernat has argued that, although the basic natural capacity for rational
shown that both of the standard jus- there is a mismatch between a per- agency. Therefore, the principle on
tifications for DCD determinations manence standard and an irrevers- which, according to some authors,
of death are unconvincing. We have ibility standard for declaring death in Catholic doctrine is based is com-
good reasons for supposing that the DCD cases, a permanence standard is patible with DCD donation even if
reversibility objection to the DCD an acceptable compromise.18 Jerry DCD donors are not dead and killing
death declaration is sound. When a Menikoff has pointed out that even them is incompatible with Catholic
DCD donor is declared dead, it is not though the dead donor rule is vio- doctrine itself.
known that he has suffered irrevers- lated in DCD cases, removing livers Are any of these proposals accept-
ible loss of circulatory and respira- and kidneys from these not-yet-dead able? I have offered no more than a
tory functions. Therefore, given the donors does not kill them. This is sketch of any of them. To show any
standard legal definition of death, because removing their life supports, is acceptable would involve a far
the basis for declaring DCD donors not removing their livers and kidneys, more careful description of that par-
dead does not obtain. Furthermore, is the cause of their deaths. They do ticular proposal than I have offered.
because DCD donors are not brain not live long enough to die from liver Any such proposal requires a defense,
dead, they are not known to be dead or renal failure.19 Menikoff s point which I have also not offered. Fur-
at all. might be used to argue that excep- thermore, an argument is available
tions to the dead donor rule may be that none of these proposals is accept-
Removing Vital Organs made when the principle that appar- able. One might argue that to remove
ently justifies the rule does not apply. the vital organs of a living human be-

T he analysis presented here does

not, by itself, entail that remov-
ing vital organs from the kinds of in-
The relevant principle is that inten-
tionally killing one innocent human
being in order to save the life of an-
ing to benefit another is to treat that
human being as a means only, and
not as an end. This, one might argue,
dividuals falsely declared dead on the other is wrong. That principle is not is always wrong. It is a violation of
basis of a DCD protocol is wrong, violated in at least some DCD cases. human dignity, which, as Kant said,
however. It implies something more Another strategy to justify over- is a dignity that is beyond all price.
complex. It implies that either (1) do- riding the dead donor rule on rare Whether this argument carries the
nation after cardiac death is unethical occasions would appeal to the view day requires much more analysis.

30 HASTINGS C E N T E R R E P O RT May-June 2010

 in New England Journal of Medicine 359 13. R.M. Veatch, The Death of
This essay has shown two things. It (2008): 669-71, and the discussion in Whole-Brain Death: The Plague of
has shown that DCD donors are not Curfman, Morissey, and Drazen, Cardiac the Disaggregators, Somaticists, and
known to be dead. It has also shown Transplantation in Infants. Mentalists, Journal of Medicine and
that we should engage in the difficult 5. There are reasons for skepticism con- Philosophy 30 (2005): 353-78 and elsewhere.
but very interesting discussion forced cerning both the dead donor rule and this 14. T. Tomlinson, The Irreversibility of
definition of death. However, I shall take Death, 161. My bracketed comment.
on us by that conclusion. The alter- both for granted in the main analysis of this 15. This is too simple, but the complica-
native is to pretend that DCD donors essay. tions are unnecessary here. I believe that a
are dead when they are not known to 6. R.M. Veatch, Donating Hearts after case can be made for the view that we have
be dead at all. Cardiac DeathReversing the Irreversible, obligations to those who do not exist now
New England Journal of Medicine 359 but will exist at a later time, and for the
Acknowledgments (2008): 672-73. view that we have obligations to those who
7. J. Robertson, The Dead Donor do not exist now but have existed in the
This essay was begun while I was a Rule, Hastings Center Report 29, no. 6 past. These obligations are transtemporal
Laurance S. Rockefeller Visiting Profes- (1999): 12. obligations. These special cases concern ob-
sor for Distinguished Teaching at the 8. J. Bernat, C.M. Culver, and B. ligations of existing beings (at one time) to
Center for Human Values at Princeton Gert, On the Definition and Criterion existing beings (at another time). Therefore,
of Death, Annals of Internal Medicine 94 they are not counterexamples to the above
University. I am grateful to Princeton (1981): 389-94, and J. Bernat, A Defense claim.
for the opportunity for research af- of the Whole-Brain Concept of Death, 16. J.T. Potts, Jr., et al., Commentary:
forded by this appointment. I am also Hastings Center Report 28, no. 2 (1998): 18. Clear Thinking and Open Discussion
indebted to Rachel Sachs, Amanda Bernat no longer holds this view. See his Guide IOMs Report on Organ Donation,
Bowers, Jim Bernat, Jerry Menikoff, Are Organ Donors After Cardiac Death Journal of Law, Medicine and Ethics 26
Really Dead? Journal of Clinical Ethics 17 (1998): 167, responding to Jerry Menikoff s
and Ron Stephens for helping me, in (2006): 122-32. objections to the DCD protocol in Doubts
various ways, with this essay. I am also 9. Others have indicated that in DCD About Death: The Silence of the Institute
indebted to an anonymous referee for cases, permanence is what counts in declar- of Medicine, Journal of Law, Medicine and
very helpful comments on an earlier ing death. See M.A. DeVita, The Death Ethics 26 (1998): 157-65.
draft. Watch: Certifying Death Using Cardiac 17. F. Miller and R. Truog, Rethinking
Criteria, Progress in Transplantation 11 the Ethics of Vital Organ Donations,
References (2001): 59, and Bernat et al., Report on Hastings Center Report 38, no. 6 (2008):
a National Conference on Donation after 38-46.
1. G.D. Curfman, S. Morissey, and Cardiac Death. 18. Bernat, Are Organ Donors after
J.M. Drazen, Cardiac Transplantation in 10. S.J. Youngner, R.M. Arnold, and Cardiac Death Really Dead?
Infants, New England Journal of Medicine M.A. DeVita, When Is Dead? Hastings 19. Menikoff, Doubts about Death:
359 (2008): 749-50. Center Report 29, no. 6 (1999): 16, quot- The Silence of the Institute of Medicine.
2. M.M. Boucek et al., Pediatric Heart ing with approval T. Tomlinson, The 20. D. Marquis, Why Abortion Is
Transplantation after Declaration of Irreversibility of Death: Reply to Cole, Immoral, Journal of Philosophy 86 (1989):
Cardiocirculatory Death, New England Kennedy Institute of Ethics Journal 3 (1993): 183-202.
Journal of Medicine 359 (2008): 709-714. 157. 21. P. Lee and R.P. George, Body-
3. J. Bernat et al., Report of a National 11. Robertson, The Dead Donor Rule. Self Dualism in Contemporary Ethics and
Conference on Donation after Cardiac The bracketed explanation is mine. Politics (Cambridge, U.K.: Cambridge
Death, American Journal of Transplantation 12. Obviously, what counts as circum- University Press, 2008), at 82 and F.J.
6 (2006): 281-91. stances that could obtain needs analysis. Beckwith, Defending Life (Cambridge,
4. Jim Bernat pointed out this to me in That difficult analysis would take us too far U.K.: Cambridge University Press, 2007),
conversation. See his The Boundaries of afield because the subject of this essay is not at 161-62.
Organ Donation after Circulatory Death, the nature of dispositional properties.

May-June 2010 H A S T I N G S C E N T E R R E P O RT 31