Organ Donation and Declaration of Death: Combined Neurologic and Cardiopulmonary Standards

Abstract

Prolonged survival after the declaration of death by neurologic criteria creates ambiguity regarding the validity of this methodology. This ambiguity has perpetuated the debate among secular and nondissenting Catholic authors who question whether the neurologic standards are sufficient for the declaration of death of organ donors. Cardiopulmonary criteria are being increasingly used for organ donors who do not meet brain death standards. However, cardiopulmonary criteria are plagued by conflict of interest issues, arbitrary standards for candidacy, and the lack of standardized protocols for organ procurement. Combining the neurological and cardiopulmonary standards into a single protocol would mitigate the weaknesses of both and provide greater biologic and moral certainty that a donor of unpaired vital organs is indeed dead.

Summary:

Before a person’s organs can be used for transplantation, he or she must be declared “brain-dead.” However, sometimes when someone is declared brain-dead, that person can be maintained on life-support for days or even weeks. This creates some confusion about whether the person has truly died. For patients who have a severe neurologic injury but are not brain-dead, organ donation can also occur after his or her heart stops beating. However, this protocol is more ambiguous and lacks standardized protocols. We propose that before a person can donate organs, he or she must first be declared brain-dead, and then his or her heart must irreversibly stop beating before organs are taken.

In his address to the Eighteenth International Congress of the Transplantation Society, John Paul II (2000, 5) gives what appears to be the approval of whole brain death criteria as a method of determination of death: “Here it can be said that the criterion adopted in more recent times for ascertaining the fact of death, namely the complete and irreversible cessation of all brain activity, if rigorously applied, does not seem to conflict with the essential elements of a sound anthropology.” This approval appears provisional by the use of the phrase “does not seem.” He acknowledges (John Paul II 1989, 5) that the “problem of the moment of death has serious implications at the practical level, and this aspect is also of great interest to the Church.” John Paul II (2000) describes death as an event that no scientific technique can directly identify: death is the total disintegration of the integrated whole that is the personal self (p. 4). Death, for John Paul II, is on ontological event rather than an empirical event, and so empirical methods will inevitably fall short in identifying it. Yet he (2000, 4) also acknowledges the need for “scientifically secure means of identifying the biological signs that a person has indeed died.” In other reflections on determining the moment of death, John Paul II (1990, 23–25) notes that acquisition of new data can stimulate and refine moral reflection. The current article proceeds in this spirit. Given recent data demonstrating that so-called brain-dead individuals can be kept “alive” for extended periods of time, we contend that it is a particularly appropriate time to refine moral reflection. More specifically, in what follows, we argue that recent data suggest that neurological and cardiovascular criteria should be favored over neurological criteria alone as a reliable biological indicator of death. The provisional magisterial endorsement of neurological criteria for death should therefore be revisited.

Theological and Historical Background

While alive on earth, humans are meant to be an indivisible union of body and soul, and the resurrection is the perfect realization of this harmony. Death is the necessary event linking these two states. The event of death is therefore an ontological change, one that has profound theological implications. Despite its ontological status, however, the starting point of the Christian understanding of death is biological. According to Ratzinger (1988, 95), death is the “physical process of disintegration which accompanies life. It is felt in sickness and reaches its terminal point in physical dying.” Death may be an ontological change, but it is the one that can be inferred by biological indicators.

But the dying of a human cannot be confined to the moment of clinical death. Humans are forced to accept the fact that their lives are not under their own power. They can respond in one of two ways. They can defiantly seek to gain power over their own existence, but this is an exercise in futility, leading ultimately to anger, frustration, and despair. The alternative response to death is to trust the power that actually controls their existence. “And in this second case, the human attitude towards pain, towards the presence of death within living, merges with the attitude we call love” (Ratzinger 1988, 96). The confrontation with physical death is the confrontation with the basic question of human existence. For the Christian, “physical death is met with in the daring of that love which leaves self behind, giving itself to the other” (Ratzinger 1988, 95). The God who died in the person of Jesus is the source of this love. When Christians die, they die into the death of Christ himself. “Death is vanquished when people die with Christ and into him. This is why the Christian attitude must be opposed to the modern wish for instantaneous death, a wish that would turn death into an extensionless moment and banish from life the claims of the metaphysical” (Ratzinger 1988, 98).

It is only in the last 100 years, however, that the Christian understanding of death has been challenged by technological advances. Prior to the availability of mechanical ventilation during the 1920s, the process of dying ended when individuals could no longer breathe on their own and the heartbeat ceased. The sophistication of mechanical ventilation and other means of artificial life support continued to advance, and by the 1950s, a human with severe brain injury could be sustained for up to a few days before the circulatory system failed and the patient ultimately died. In the days preceding circulatory collapse, clinicians also observed the absence of typical signs of neurological function, leading to the development of clinical criteria of death by neurological standards (Mollaret and Goulon 1959, 3–15). By and large, however, the need for determining death by neurological standards had very limited clinical utility as ultimately circulatory collapse occurred within a few days.

However, in a singular event that raised questions about the reliability of the cardiovascular standard, the need for neurological criteria for death was pushed to the clinical forefront. In 1967, Christiaan Bernard performed the first successful human heart transplant. While the patient died eighteen days later, this event marked the beginning of heart transplantation. Over hundred additional heart transplants were attempted within the following year. Many of the early failures were attributed to donor organ deterioration that occurs while waiting a sufficient time after cardiac arrest to ensure that the donor would not spontaneously resuscitate (Henderson 2011, 2). Barnard’s own account (1969, 360) of the first heart transplant reveals that he waited about three minutes after the donor heart stopped beating before proceeding with its removal. Barnard’s choice of three minutes, however, raises a question: is three minutes enough time to declare confidently that the donor is in fact beyond the point of spontaneous resuscitation? Before the possibility of organ donation, “close enough” criteria may have been sufficient to declare death. The possibility of donation, however, creates a pressing need for more a precise standard. The reason stems from the Dead Donor Rule, which states that “Vital organs which occur singly in the body can be removed only after death, that is from the body of someone who is certainly dead. This requirement is self-evident, since to act otherwise would mean intentionally to cause the death of the donor in disposing of his organs” (John Paul II 2000, 4). To abide by the Dead Donor Rule, it is therefore important to know exactly when a patient has died. “Close enough” criteria are insufficiently precise, and so the ambiguity inherent in the cardiovascular criterion became deeply problematic.

The following year, the Harvard Ad Hoc Committee to Study the Problems of the Hopelessly Unconscious Patient convened to propose new diagnostic criteria for determining death. The finished work of the committee was published in the Journal of the American Medical Association as “A Definition of Irreversible Coma” (Harvard Ad Hoc Committee 1968, 337–40) and suggested replacing the cardiovascular criterion with a neurological criterion. Over time, the Harvard criterion for the determination of brain death has become widely accepted. The committee also explained their rationale for recommending irreversible coma as a new criterion for brain death. First, they reasoned that the neurological criterion would lessen the burden on patients, families, and hospitals. Second, the neurological criterion did not suffer from the ambiguity of the cardiovascular criterion when it came to determining death ahead of the retrieval of transplantable organs (Henderson 2011, 9). As defined by neurological criteria, death is less ambiguous than death as defined by cardiovascular criteria, and so it would seem that the former criterion can more straightforwardly meet the requirements set out in the Dead Donor Rule.

Catholic Teaching and Brain Death

Both John Paul II and Benedict XVI appear to endorse the concept of brain death. That might make it seem as if the magisterial teaching on brain death is closed. Crucially, however, both John Paul II and Benedict XVI refuse to endorse the Harvard criterion without qualification. That means that the magisterial teaching is not as closed as it may first appear to be.

In his address to the International Congress of the Transplantation Society, John Paul II describes death as an event that no scientific technique can directly identify. It is the total disintegration of the integrated whole that is the human being. He describes death as the separation of the life principal (or soul) from the corporal reality of the human. Yet John Paul II (2000, 4) also acknowledges the need for “scientifically secure means of identifying the biological signs that a person has indeed died.” He states that “the criterion adopted in more recent times for ascertaining the fact of death, namely the complete and irreversible cessation of all brain activity, if rigorously applied, does not seem to conflict with the essential elements of a sound anthropology” (p. 5). John Paul II also notes (p. 5), however, that the Church depends upon science to guide it in how it understands criteria for death:

With regard to the parameters used today for ascertaining death—whether the “encephalic” signs or the more traditional cardio-respiratory signs—the Church does not make technical decisions. She limits herself to the Gospel duty of unity of the person, bringing out the similarities and the possible conflicts capable of endangering respect for human dignity.

John Paul II (p. 5) goes further to say that healthcare workers may use these criteria with moral certainty and that the criteria are a “necessary and sufficient basis for and ethical correct course of action.”

Benedict XVI (2008a, 1) has likewise affirmed the value of organ transplantation and, much like John Paul II, gives qualified acceptance of brain death criterion:

In these years science has accomplished further progress in certifying the death of the patient. It is good, therefore, that the results attained receive the consent of the entire scientific community in order to further research for solutions that give certainty to all. In an area such as this, in fact, there cannot be the slightest suspicion of arbitration and where certainty has not been attained the principle of precaution must prevail.

It may seem, then, that the magisterial teaching on brain death is settled. However, it is no small detail that John Paul II qualifies his remarks with “does not seem.” This qualification, we believe, leaves room for further clarification of the magisterial teaching. Like John Paul II, Benedict XVI also leaves room for further debate, warning against the slightest suspicion of arbitration and the need for certainty in certifying the death of the patient. And indeed, John Paul II himself says that the “acquisition of new data can stimulate and refine moral reflection” (p. 25). As new data are acquired regarding the definition of death, further moral reflection is therefore necessary and the moral certainty John Paul II describes may be revisited in light of this new data.

By our reading, the current magisterial teaching on criteria for death can therefore be summarized by the following four claims:

1. Death is an ontological event and cannot be defined by or identified using empirical methods.

2. Nevertheless, empirical methods can provide reliable insights into the ontological event of death.

3. Based on the best available empirical evidence (as of 2000), we have good reason to think that the neurological criterion for death provides a reliable guide to metaphysical death.

4. However, we must remain open to what new data suggest and the use these data to proceed cautiously in the way we define death.

The conjunction of (1)–(4), we believe, entails an endorsement of brain death criteria that are provisional, not absolute. Moreover, John Paul II (1990, 23) acknowledges that the “problem of the moment of death has serious implications at the practical level, and this aspect is also of great interest to the Church.” For John Paul II (2000, 4), the definition of death hinges upon “total disintegration of that unitary and integrated whole that is the personal self.” This, then, is the critical question: when is the personal self no longer an integrated whole? John Paul II pointed to the best available evidence in suggesting that this moment could be captured by the Harvard criterion. In what follows, we present newer evidence suggesting that this may not be the case.

Why the Magisterial Endorsement of Brain Death Criteria Should Be Revisited

In the years since John Paul II gave his provisional endorsement of brain death criteria, a growing number of researchers have questioned whether brain-dead individuals are in fact dead. Consider just a few examples: Truog and Miller (2014, 9) note that “incontrovertible evidence has been developed that those individuals who meet diagnostic criteria for brain death can continue to live and maintain integrated functions indefinitely with the aid of mechanical ventilation.” They go further to say that “it is simply a fact that the legal definition of death, as defined by neurological criteria, does not correspond with the biological definition of death” (p. 9). Likewise, Sadovnikoff and Wilker (2014, 40) state that in the “well-maintained brain-dead patient, these ‘parts’—the heart, the lungs, the liver, the kidneys, the mitochondria, and so on—do constitute a single functioning life system.” Austriaco (2003, 306) also argues against brain death criteria, concluding any definition of death referencing a single organ such as the brain is insufficient and that “death would coincide with the disintegration of the molecular network that makes up the body as a whole,” an event that occurs sometime after the cessation of cardiopulmonary function.

In what follows, we join this group of researchers, arguing that recent data raise doubts about whether individuals meeting brain death criteria are in fact dead. The argument we present is based on the idea that a living individual is an integrated whole. We will say more below about what it means for a human to be an integrated whole. Ultimately, though, we will use the idea to argue that recent data provide reason to doubt that brain death criteria are the best biological indicators of death. Importantly, we will not argue that the data settle the matter of when an individual has died. As we have suggested, death is an ontological event, and investigating it would take us beyond our current purposes. Rather, we will argue that recent data give us reason to doubt that brain death criteria are a reliable indicator of human death. Insofar then as the magisterial endorsement of brain death criteria is provisional, and insofar as the magisterium advises us to proceed cautiously in the way we define death, our suggestion is ultimately that its endorsement should be revisited.

Central to the Catholic and especially Thomistic understanding of living things is that living individuals are integrated wholes and that to die is to cease to be an integrated whole. But what does it mean to say that a living individual is an integrated whole? For Aquinas, as for all those working in the Aristotelian, hylomorphic tradition, any composite object is a compound of form and matter (see, e.g., Physics II.1, 138a15–139b21). For example, a bed is a compound of the structure of the bed and the materials that compose it, a building is a compound of building’s structure and the materials that make it up, and so on. In living things, the form is the soul (see, e.g., De Anima II.2, 414a27–29). The soul, in other words, is the principle of life that animates the organic material that composes the body. The soul is thus the source of integration in living things—it ensures that the body is not merely a congeries of parts or autonomous subsystems but is rather one integrated organism. A body that ceases to be an integrated whole, by contrast, has ceased to be what it is. It has died. From a Thomistic perspective, the question of when an individual has died—whether it continues to be “ensouled”—thus ultimately turns on the question of whether that individual has ceased to function as an integrated whole.

Now, given that the Thomistic perspective describes the soul as the integrator of the body, it may be tempting to suppose that the soul can be identified with the brain. It may seem that the brain is precisely the organ that integrates one’s parts and, in fulfilling this role, is functionally equivalent to the role played by the soul from the Thomistic perspective. If this were the case, however, it would be deeply problematic for the challenge we are mounting to brain death criteria as a reliable indicator of death. The reason is that if the brain were the soul, the cessation of brain activity would entail the cessation of integration.

Thomistically inclined philosophers, however, will not typically be comfortable identifying the brain with the soul.¹ As Accad (2015) observes,

…the soul is clearly the cause of integration of the body, and to posit that a material part could be a necessary additional cause of integration presents an insurmountable problem, for in essence it would mean that the rest of the body is informed by that part in addition to the soul, which is incompatible with hylomorphic philosophy. (p. 221)

Why is this position incompatible with hylomorphic philosophy? The reason stems from Aristotle, who explains why a material part cannot be the source of integration for composite objects in Metaphysics VII.17 (pp. 1041b11–1042b2) (Aristotle, 1984). In this passage, Aristotle argues that a material part of an individual can never be the integrator of that individual or else another part would have to integrate the integrator.² Hence the brain, a material part of the human, cannot be the source of integration for a human.

For hylomorphic philosophers who define death as the cessation of integration, the soul therefore cannot be identified with the brain such that an individual’s meeting brain death criteria directly entails the death of that individual. Still, defenders of brain death criteria can argue that the death of the brain is sufficient for the cessation of integration. On this view, brain death criteria remain a reliable indicator of the cessation of integration, even if these criteria do not entail the cessation of integration.

This seems to be the position currently endorsed by the magisterium. The position, moreover, does have some empirical evidence counting in its favor. For example, those who endorse it note that in most patients with ventilator support who satisfy the standards for brain death, somatic death occurs within a short time (hours to days). In the absence of ventilatory support, somatic death occurs within minutes. These observations apparently support to the idea that brain-dead patients have lost their integrative function leading to cessation of the functioning organism as a whole (Miller and Truog 2012, 64). They therefore support the idea that while the brain is primarily responsible for the functioning of the organism as a whole and the “patient with whole brain dysfunction is simply a preparation of un-integrated individual subsystems, since the organism as a whole has ceased functioning” (Henderson 2011, 35). Importantly, then, the Thomistic view—the view that death should be understood as the cessation of integration—is not incompatible with whole brain death criteria. For those who defend whole brain death criteria and the Thomistic view of death, individuals who meet brain death criteria are strictly speaking not individuals at all anymore. They are rather “unintegrated individual subsystems.”

The idea, however, that brain-dead individuals are merely a congeries of “unintegrated individual subsystems” is open to challenge. We want to suggest that the body of evidence currently available counts in favor of the view that an individual may remain an integrated whole even when meeting whole brain death criteria. Again, it is important to note the limits of our discussion. We will not be arguing that the current body of evidence settles the matter of when an individual has died. Death is an ontological event, and our concerns here are primarily empirical. Rather, we will be suggesting that the current body of evidence should lead us to question whether individuals who meet neurological criteria for death are in fact dead. For as soon as these criteria are open to doubt, it follows from the magisterial position we’ve discussed that the endorsement of brain death criteria should be revisited. The magisterial position advises that we proceed cautiously in how we define death. In what follows, we’ll argue that the cautious approach consists in revisiting brain death criteria.

The first significant body of evidence that speaks against brain death criteria as a reliable guide to the cessation of integration—that is, death—is the published reports of prolonged survival weeks to months after brain death. One particularly notable case involved a boy who at age four became brain dead secondary to meningitis and survived an additional 20 years with medical support. Subsequent autopsy revealed a calcified intracranial shell with no recognizable neural elements grossly or microscopically (Repertinger et al. 2006). Further evidence that speaks against whole brain death criteria as a reliable indicator of death comes from long-term support of brain-dead pregnant patients. The medical literature reports at least thirty cases of prolonged support (one to seventeen weeks) of brain-dead mothers with normal fetal outcome at delivery in the majority of cases (Esmaelizade et al. 2010). It’s worth emphasizing that these patients would be subject to multiple neurologic evaluations over an extended period of time, making the probability of clinical error highly unlikely.

These cases, we contend, speak against whole brain death criteria for death. They present cases in which individuals ostensibly function as an integrated whole even in the face of meeting whole brain death criteria for death. The cases therefore speak against those who would adopt whole brain death criteria as a guideline for death.

There are at least two lines of response Thomistically inclined defenders of whole brain death criteria can make to these kinds of cases. First, they might argue that these cases capture patients who were never actually dead by whole brain death criteria but instead represent examples in which clinicians failed to rigorously apply accepted criteria. Admittedly, pitfalls in the diagnosis of brain death are well-documented (Busl and Greer 2009), and brain death policies vary throughout the United States (Greer et al. 2016). In a review of 508 hospitals over a three-year period, Greer and colleagues (2016) did not find any legitimate false-positive determination of brain death if criteria were rigidly applied. However, prolonged survival after the declaration of brain death is a rare phenomenon and the lack of false positives in this study over a limited period of time does not exclude its occurrence.

Still, while anecdotes may exist to the contrary, the literature does not support the assertion that prolonged survival after brain death declaration is attributable to clinical error. Clinical errors are of course sometimes made, but general statistics about rates of error do not refute the specific published cases we’ve cited. In addition, if one appeals to the notion that clinical error is truly the reason for prolonged survival after brain death declaration, then one must concede that similar errors occur with organ donors. From this, it would follow that the Dead Donor Rule is routinely violated. In fact, clinical error would be much less likely in the setting of prolonged survival after brain death, given the opportunity for multiple evaluations over extended periods of time. Clinical error would be more likely while determining eligibility for organ donation, given the relatively brief period of time where such a decision is actually made (hours to a few days). If the neurologic standards are not (or cannot) be reliably, rigorously applied, then modifications of criteria for organ donation eligibility are in order. Emphasizing the role clinical error may play in the cases we’ve described may thus raise more problems than the one it is intended to resolve.

A second line of response, however, is also available for those defenders of whole brain death criteria who maintain that death is the cessation of bodily integration. Eberl (2015) and Lee and Griesez (2012), for example, defend whole brain criteria from an explicitly Thomistic perspective. Noting that many cases of prolonged survival occur in young children, Eberl (2015, 244) proposes that the “integrative functions normally carried out by the brainstem in mature human beings can be taken on by other, normally less critical neural structures in young children or even adolescents.” Eberl’s position thus begins to address the prolonged cases of somatic survival we’ve discussed, even while maintaining that death is the cessation of bodily integration. Two significant problems, however, are apparent with this position. First, in focusing on young children, the response does not adequately address the multiple cases of postadolescent whole brain-dead pregnant women who are medically supported until delivery (Esmaelizade et al. 2010). Second, Eberl’s position is unsatisfying because of the questions it leaves unanswered: if the integrative functions of children are taken on by other less critical neural structures, then it remains to be shown (1) what those structures are, (2) what then becomes the criteria for death in young children (he proposes cardiopulmonary criteria), and (3) at what age that criteria are abandoned in favor of whole brain death criteria.

There is, however, a better way forward for those who defend whole brain death criteria while maintaining that death is the cessation of bodily integration. This strategy consists in showing how the cases we’ve introduced seem to be cases of individuals being an integrated whole, even while they are not cases in fact (see, e.g., Tonti-Fillipini 2011; Moschella 2016; Condic 2016).³ There are several ways of adopting this strategy.⁴ In what follows, we’ll focus on Condic’s (2016) as we feel it is one of the strongest and most recent. Condic distinguishes between two related concepts: coordination and integration. Coordination, on the one hand, is “the ability of a stimulus, acting through a specific signaling molecule, to bring responding cells into a common action or condition” and can be accomplished by either the nervous system or other bodily systems (Condic 2016, p. 271). Integration, on the other hand, is “the compilation of information from diverse structures and systems” and must be accomplished by the nervous system, especially the brain (Condic 2016, 271). Having introduced this distinction, Condic can therefore describe the cases we’ve presented—cases of prolonged somatic survival in both pregnant and nonpregnant patients—as bodies that may continue to perform coordinating processes (hence, the appearance of integration) but not integrative processes. As Condic (2016) puts it,

…the bodily functions that persist after the death of the brain reflect the properties of individual cells, functioning as autonomous cellular organisms within a pre-existing system that provides efficient distribution of long-range signaling molecules to other, independent cellular organisms. Coordination persists, but integration is lost. (p. 273)

Therefore, according to Condic, even for those who define living organisms as an integrated whole, it is possible to deny that the cases we’ve presented are cases of integration. On Condic’s account, these cases therefore do not speak against whole brain death criteria for death.

In response to Condic’s account (and all those accounts that aim to reconcile the cases we’ve presented with a definition of death as the cessation of integration), it will be helpful to return to our overall argumentative strategy. Recall that we are not aiming to settle the matter of when an individual has died. Death is an ontological matter—our concerns are empirical. It would, moreover, be question-begging to say that the cases we’ve presented count definitively against whole brain death criteria. We are therefore defending a position that is intentionally subtler than this. We are not saying that the cases we’ve presented are in principle irreconcilable with an account that understands death as the cessation of integration. Rather, we are suggesting that the cases we’ve presented should lead us to question whether whole brain death criteria are reliable indicators of death. Perhaps Condic’s account (or one like it) is correct, and the cases we’ve presented only seem to be cases of bodily integration in individuals meeting whole brain death criteria. But perhaps things are just as they seem. Perhaps the cases do present cases of bodily integration in individuals meeting whole brain death criteria. It is not ultimately important to our purposes to decide which account is superior. Rather, it is important simply to note that the cases we have presented leave it uncomfortably undetermined whether individuals can continue to be an integrated whole even after meeting whole brain death criteria. The cases leave this question up for debate.

And this is enough to revisit the magisterial endorsement of brain death criteria, given the provisional nature of this endorsement and the magisterial advice to proceed cautiously in defining death. Haas (2011) has proposed that moral certitude, and not absolute certitude, is needed to determine death by neurologic criteria: “because of the contingent character of our actions in the area of moral judgement, we cannot anticipate the same kind of certitude which we enjoy, for example, in mathematics (p. 293).” Moral certitude, or certitude of prudence, excludes the “reasonable fear of being in error (p. 293).” However, by its nature, prudential certitude does not eliminate the possibility of error, and as new information is acquired, judgments may need to be reexamined. What we have suggested is that new information has been acquired and that this should bear on our evaluation of the magisterial endorsement of death by neurological criteria. Specifically, the way forward consists in revisiting this endorsement. Revisiting this endorsement, we should emphasize, is not a departure from the magisterial teaching but is rather an implication of the magisterial teaching to be open to new data and to proceed cautiously in defining death.

Organ Donation after Cardiac Death (DCD)

Our argument above may suggest that we favor abandoning the neurological criteria for death and embracing a cardiopulmonary definition of death instead. That is not, however, the conclusion for which we hope to argue. In what follows, we explain why.

Alternatives to brain death criteria have been proposed and used to obtain organs for transplantation. The method first used by Christiaan Bernard has gained popularity in recent years, primarily as a way to increase the number of organ donors. DCD has been used with increasing frequency and currently represents between 10 percent and 20 percent of donated organs (Miller and Truog 2012, 97; Steinbrook 2007, 209). Also known as the cardiopulmonary standard of death, these organ donors are typically individuals who suffered severe neurological injuries but do not fulfill the brain death criteria. Protocols vary, but typically consented donors are taken to the operating room and life support is withdrawn. Often, the individual is pretreated with anticoagulants to help preserve organ vitality. After the ventilator is withdrawn, the patient is monitored for apnea and pulselessness. Once these two events occur, the patient is observed for an additional short period of time (typically five minutes, though protocols vary) before organ retrieval begins (Bellingham et al., 694). This additional waiting period is necessary to be sure the apnea and pulselessness are irreversible. If the patient breathes spontaneously for more than sixty minutes, he is then returned to his hospital room for continued supportive care. Both patient and graft survival are comparable between DCD and neurological criteria transplant recipients for kidney, pancreas, and lung. However, patient and graft survival are adversely impacted for liver transplants obtained by DCD (Bellingham et al. 2011). Pediatric heart transplantation has been successfully performed using hearts from donors who died from cardiocirculatory causes (Boucek et al. 2008).

Proponents of DCD view this method as equivalent to allowing the patient to die, and some have argued that it is ethically superior to brain death standards. However, there are significant ethical issues surrounding DCD, issues we’ve already mentioned above. These issues primarily stem from the fact that the cardiopulmonary standard is inherently ambiguous. Using the cardiopulmonary standard to determine death in cases of donation raises the question about whether the donor has truly died. It is possible, if not likely, that the brain is still alive after two to five minutes of pulselessness. Moreover, the duration of pulseless apnea that is truly irreversible has not been fully determined. Following the cardiopulmonary standard thus significantly raises the possibility of unintentionally breaking the Dead Donor Rule.

The cardiopulmonary standard has additional drawbacks. Most notably, the decision to donate organs occurs before the patient has actually died. Moreover, the degree of neurological impairment necessary to be a donor under this criterion is arbitrary. This arbitrariness raises a host of potentially problematic possibilities. In theory, a cognizant, ventilator-dependent quadriplegic could choose to stop the ventilator and donate his organs. Likewise, guardians of a ventilator-dependent child with cerebral palsy could choose to withdraw support and donate the child’s organs.

The cardiopulmonary standard also opens the possibility for external influences to have an undue influence on the declaration of death. The reason is that the intent and actions of the people surrounding the patient at the time of death influence the course of action. Consider the following examples (Miller and Truog 2012, 104): (1) a healthy young athlete is pulseless and apneic from a heart arrhythmia while playing basketball. After three minutes, paramedics arrive. Is he dead? (2) A healthy young male sustains a severe brain injury but is not brain dead following an auto accident. He is taken to the operating room for organ donation and the ventilator removed. After a short while, he is pulseless and apneic for three minutes. The young athletes’ situations in these examples should not have an influence on the determination of death. And yet, the ambiguities inherent in cardiopulmonary death make us suspect these very details may influence this determination if the cardiopulmonary standard is followed.

Finally, conflict of interest issues are particularly problematic for pronouncement of death of DCD. Family members of critically ill patients may be overwhelmed with decisions regarding code status, termination of treatment, and many other issues. The decision to donate organs before death is declared adds another layer to complex medical decision-making (Grasser 2017, 534–35). The Department of Health and Human Services (2003) has recognized this problem and has recommended “commitments to action and safeguards against potential conflict of interest must be put in place to (1) ensure that medical decisions are isolated from any decisions related to donation; (2) maintain complete separation between the transplant team and the patient care team; and (3) make certain that no discussion of donation with the family occurs prior to a decision to withdraw support.”

For all these reasons, then, we deem it unwise to retreat from whole brain criteria for death only to embrace the cardiopulmonary standard. The neurological standard faces problems. But the cardiopulmonary standard is not significantly better.

Combined Neurologic and Cardiopulmonary Standards

With significant ethical limitations to both the brain death criteria and cardiopulmonary standard, what alternatives exist? The morally “safer” path would consist in abandoning organ transplantation until the issue is clarified further. This strategy would apparently be in line with the magisterial advice to proceed cautiously in our definition of death and would certainly prevent the breaking of the Dead Donor Rule. However, given the number of transplants that have been performed and the number of patients on the waiting list, this is not an ethically viable solution to the problem. While alternatives to nonpaired vital organs are being explored (organs grown in culture from umbilical cord stem cells) and even used in patients (mechanical heart), the current demand for organs far outpaces the supply from these and other potential sources.

We are therefore left with two insufficient criteria for donor candidacy and a pressing practical need to identify candidates for donation. We’ve seen that there is reason to question whether the brain-dead patient is truly dead. However, patients who meet the brain death criteria are by definition incapable of breathing spontaneously and invariably become pulseless within minutes of withdrawal from the ventilator. The brain death standard is also objective, reproducible, and recognized by the majority of clinicians as well as the Catholic Church. In contrast, the cardiopulmonary criteria suffer from inherent arbitrariness: adopting the cardiopulmonary standard leaves us confronted with the possibility of regularly breaking the Dead Donor Rule. Yet, the cardiopulmonary standard seems to track our understanding of what it means to “allow a patient to die.”

To address this dilemma, we propose that both the neurologic and cardiopulmonary criteria be used in the determination of eligibility for organ donation. As we’ll suggest by way of closing, by applying both criteria to potential organ donors, the best of both standards is accentuated and the limitations of each partially mitigated. Under the new proposed standard, a potential organ donor must first meet neurologic standards for organ donation and only then would the donor’s organs be procured after the heart stops beating and the patient is allowed to die.

Consider, in the first place, that the combined criteria would address the concerns of nondissenting Catholics and secular ethicists who question the validity of neurological standards for death. The combined criteria would satisfy those who point toward prolonged survival after the declaration of brain death as posing a significant challenge to neurological criteria. We have suggested that it is difficult to reconcile the experience of witnessing an individual digest food, make urine, exchange oxygen, grow hair, or gestate a baby and denying that such an individual is an integrated whole. Patients who meet brain death criteria, however, are unambiguously in the process of dying and are unambiguously dead when the heart and lung cease functioning.

As mentioned in the beginning of this article, John Paul II (2000, 4) describes death as an event that no scientific technique can directly identify: death is the total disintegration of the integrated whole that is the personal self. For Ratzinger (1988, 95), death is the “physical process of disintegration which accompanies life. It is felt in sickness and reaches its terminal point in physical dying.” Death is a physical process culminating in an ontological event. Combining neurological and cardiopulmonary criteria, we feel, honors this position by recognizing that while death itself may be ultimately veiled from empirical inquiry, a patient who meets both neurological and cardiopulmonary criteria has inarguably completed the physical process leading preceding it.

Critics of the proposed standard would rightfully object that this would limit even further the organs available for transplant. However, patient and graft survival are comparable between DCD and neurological criteria transplant recipients for kidney, pancreas, and lung. While graft and patient survival are adversely impacted in DCD liver patients, results are still sufficiently successful to warrant continued use of DCD livers (Bellingham 2011, 6). It is unknown whether the combination of DCD and neurological criteria would further impact graft and patient survival. The physiological cascade that occurs after brain death already “stresses” the organs and the additional stress that occurs after cardiac death may compound organ deterioration. Presumably animal studies using this combined criterion would shed light in this area. Whether heart transplantation would be possible under the combined criteria is much less certain. Heart transplantation after DCD has been performed in only a handful of pediatric patients. Again, animal studies would be necessary. The burden, then, is shifted to science to find better ways to maintain organ viability during the transplant process and to discover alternative therapies to reduce the demand for organs. It is likely that the combined criterion would limit the organs available for transplant. But we also feel that this criterion best reflects the magisterial teaching to proceed cautiously and use the best available data when identifying when an individual has died.

Another argument against the combined criteria consists in observing that requiring cessation of cardiopulmonary function after the declaration of death by neurological standards would insert an unnecessary step in the process of organ procurement. If the patient is already “dead” by one set of criteria, what would be the purpose of requiring an additional set of criteria? The answer is simply that universal acceptance of neurological criteria does not exist among nondissenting Catholic and secular ethicists. That is precisely what we have aimed to show above. It is difficult to ignore the volume of literature debating the merits of brain death criteria. As encouraged by John Paul II, the acquisition of new information should inspire moral reflection. We have suggested that the refinement of neurological criteria with the addition of cardiopulmonary criteria is a response to his exhortation.

Does proposing a combined criterion implies that moral certitude is lacking with neurologic standards? In his 2000 address to the Transplantation Society, John Paul II stated that healthcare workers may use these criteria with moral certainty and that the criteria are a “necessary and sufficient basis for and ethical correct course of action (p. 5).” Drawing again from John Paul II’s exhortation to refine moral teaching as new data become available, combining neurologic and cardiopulmonary criteria is not a negation of the moral certainty of neurologic standards alone, but a refinement of Catholic teaching that should and does occur in the complex areas of bioethics. Dignitas Personae (Benedict XVI 2008b, 1) is an example of how the Church appropriately updated teachings from Donum vitae regarding procreation:

The Church’s Magisterium has frequently intervened to clarify and resolve moral questions in this area. The Instruction Donum vitae was particularly significant. And now, twenty years after its publication, it is appropriate to bring it up to date.…The teaching of Donum vitae remains completely valid, both with regard to the principles on which it is based and the moral evaluations which it expresses. However, new biomedical technologies which have been introduced in the critical area of human life and the family have given rise to further questions.…These new questions require answers.

As the technology improves, so does the ability to sustain critically ill patients. New biomedical technologies give rise to further questions that require answers. What was impossible thirty years ago is now routine ICU care. Supporting a brain-dead pregnant mother was unheard of thirty years ago, even when ventilators were established standard of ICU care. Of thirty cases in the literature that report prolonged support of a brain-dead pregnant mother, twenty-six were reported after 1990 and only very recently have these case studies been compiled into a single research article (Esmaelzadeh et al. 2010). Clearly this represents new data that should encourage further moral reflection.

By applying both the brain death and cardiopulmonary criteria, clinicians and ethicists would be decidedly on the side of “do no harm.” The combined criteria would better fulfill Pope Benedict XVI’s instruction (2008a) that “there cannot be the slightest suspicion of arbitration and where certainty has not been attained the principle of precaution must prevail.” The likelihood of a patient being used in a utilitarian fashion would be reduced to practically nil. The ethical concerns surrounding declaration of death by neurologic or cardiopulmonary standards would be largely eliminated. Under these circumstances, the human would be unequivocally biologically dead and organ procurement could proceed without the fear of “taking” or “using” but rather as “donation” and “gift.” Combining the neurological and cardiopulmonary standards into a single protocol would mitigate the weaknesses of both and provide greater biologic and moral certainty that a donor of unpaired vital organs is indeed dead.

Biographical Notes

Stephen E. Doran, MD, is a member of the clinical faculty of the Section of Neurosurgery, University of Nebraska Medical Center, Omaha, NE.

Joseph M. Vukov, PhD, is an assistant professor at Department of Philosophy, Loyola University Chicago, Crown Center for the Humanities, Chicago, IL.