Organ Donation, Death and Harm

Walter Glannon discusses the role of death in the ethics of organ donation, and responds to some of his critics

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In a recent paper entitled The Moral Insignificance of Death in Organ Donation, I argue that the medical and legal declaration of death on the basis of neurological or cardiocirculatory criteria is not what matters morally in considering persons as potential organ donors.

Many authors writing on this and other topics in bioethics have assumed that death always harms persons and that any action that causes death is morally impermissible because of the harm it entails. Yet harm is not based on biological functions of the body and brain but instead on the capacity for consciousness and how this capacity grounds the interest a person has in what happens to his or her body. While this capacity has a neurobiological underpinning, it is not just a function of neurobiology but also of a person’s beliefs and values. A person is harmed when an action or series of actions defeats his or her interests.

In The Moral Insignificance of Death in Organ Donation, I argue that an ethical justification of organ procurement should not be based on the timing of a biological declaration of death. Rather, it should be based on whether those from whom organs are taken consented to donation at an earlier time, whether they have an irreversible condition with no hope of meaningful recovery of cognitive and physical functions, and whether they have the capacity for consciousness enabling them to experience pain and suffering during organ procurement.

Michiel_Jansz_van_Mierevelt_-_Anatomy_lesson_of_Dr__Willem_van_der_MeerThe most controversial claim I make is that some severely neurologically compromised patients might not be harmed by procurement causing their death even if they are neither permanently unconscious nor imminently dying. But if these patients have consented to organ donation, have no hope of recovery and cannot experience pain and suffering, then they cannot be harmed by organ procurement causing their death. My claims and arguments advocate abandoning the Dead Donor Rule (DDR), which says that persons must be declared dead before vital organs can be procured from their bodies for the purpose of transplantation. This position is not new. Bioethicists including—but not limited to—Robert Veatch, Norman Fost, Franklin Miller and Robert Truog, and David Rodriguez-Arias, Maxwell Smith and Neil Lazar have also been skeptical of the DDR, and have presented similar arguments for abandoning it.

Some commentators have taken issue with my position by appealing to public perception and legal rules as reasons for upholding the DDR. For example, in the National Review Online, Wesley J. Smith writes: “I can’t think of a better way to undermine public support for organ transplant medicine than to permit killing for organs. Not only is this kind of advocacy foolhardy, but it would have the transplant community break solemn public policy promises made to gain support from a public wary of the entire enterprise.” This misses the point of my paper, which is not about a negative public perception of organ transplantation generated by the idea of killing people to take their organs, how this might affect the motivation to agree or refuse to donate organs and how this in turn might influence the number of organs available for transplantation. The crux of my argument is not about these practical considerations but the principled consideration of the conditions under which potential donors might be harmed. I reject the claim that people would always be harmed if organ procurement occurred before rather than after a declaration of death because it is not necessarily true that they would have any interests to be defeated in such a case.

 In another response appearing on his “Philosophical Comment” blog, Christian Munthe accepts my ethical argument but claims that this does not constitute a valid reason to abandon the DDR. Munthe maintains that there would be general legal reasons for upholding the DDR that go beyond ethical considerations in single cases. Just as there are compelling reasons for not tampering with legal rules against murder and unjustified forms of homicide, so too there would be compelling reasons for upholding the DDR. The relevant legal rules are upheld because they protect individuals from harm resulting from the actions of others. But failure to abide by the DDR would not harm organ donors if their neurological condition is severe enough to put them beyond harm. Munthe’s appeal to legal rules in general and the DDR in particular fails to undermine this claim.

There may be good consequentialist reasons for defending the DDR. Abandoning it for the reasons I have given could create public distrust in the transplant system and cause people to opt out of organ donation for fear that they would be treated instrumentally as nothing more than a source of organs. This could significantly reduce the rate of organ donation and the number of organs available for transplantation. As a result, more potential transplant recipients would be harmed by poor quality of life and premature mortality from organ failure without transplants. But the focus of my paper is on the conditions under which potential organ donors could be harmed. Taking organs from people who are not imminently dying or permanently unconscious would not necessarily harm them because their conditions may leave them without any interests. Appeals to public perception and legal rules about the timing of death do not defeat this position. As I state in my paper: “What matters morally in organ donation is not death but the conditions surrounding procurement and whether they accord with the donor’s interests.”

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Walter Glannon, Associate Professor of Philosophy, University of Calgary

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