Double Effect Donation

Abstract

Double Effect Donation claims it is permissible for a person meeting brain death criteria to donate vital organs, even though such a person may be alive. The reason this act is permissible is that it does not aim at one’s own death but rather at saving the lives of others and because saving the lives of others constitutes a proportionately serious reason for engaging in a behavior in which one foresees one’s death as the outcome. Double Effect Donation, we argue, opens a novel position in debates surrounding brain death and organ donation and does so without compromising the sacredness and fundamental equality of human life.

Summary:

Recent cases and discussion have raised questions about whether brain death criteria successfully capture natural death. These questions are especially troubling since vital organs are often retrieved from individuals declared dead by brain death criteria. We therefore seem to be left with a choice: either salvage brain death criteria or else abandon current organ donation practices. In this article, we present a different way forward. In particular, we defend a view we call Double Effect Donation, according to which it is permissible for a person meeting brain death criteria to donate vital organs, even though such a person may be alive. Double Effect Donation, we argue, is not merely compatible with but grows out of a view that acknowledges the sacredness and fundamental equality of human life.

Our understanding of brain death as a criterion for natural death has shifted in recent years from general endorsement to widespread suspicion, especially in Catholic circles, but also beyond them. Medical practitioners, ethicists, and theologians alike have looked to brain death criteria for decades as a reliable indicator of the death of the human person in ways which would preserve the dead donor rule (DDR) for organ donation. Yet well-publicized cases such as that of Jahi McMath—together with arguments centered on those advanced by D. Alan Shewmon (2018)—have raised legal and ethical questions that are largely unanswered. Our focus in what follows is on the ethical ones. Indeed, ethical ground that had once seemed settled—the idea that brain dead patients were ethically acceptable candidates for organ donation—has begun to seem less stable.

We can get a sense of the current ethical landscape by considering the following two guidelines, and the ways in which both Catholic and secular bioethicists have responded to them:

• Uniform Declaration of Death Act (UDDA): an individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead (President’s Commission 1981, 2).

• DDR: 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 (John Paul II 2000).

The UDDA thus lays out criteria for natural death, while the DDR limits organ donation to the period after natural death (i.e., to those who are “certainly dead”). In the face of these guidelines, there are four possible responses: accept both; accept one but not the other (or vice versa); or reject both. Let us consider each strategy more closely.

The first option is accepting both UDDA and DDR. This position entails that whole brain death criteria are reliable indicators of natural death and that organs can therefore be ethically removed for transplantation from someone meeting these criteria. In what follows, we will call this approach Business as Usual, since it captures the way ethicists have and continue to approach issues at the intersection of brain death and organ donation. Business as Usual is close to orthodoxy in medical circles and the standard view in Catholic circles as well. However, as we will argue in Against Business as Usual section, we believe there are good reasons to eye the Business as Usual response with suspicion.

The second possible response to UDDA and DDR is rejecting DDR and retaining UDDA. This means rejecting the idea that organ retrieval should be strictly limited to dead individuals even while accepting the UDDA as a criterion for death. There are several ways one could develop this position. The one we will focus on is what we will call Donation Pragmatism. According to the Donation Pragmatist, while the UDDA may not provide a reliable indicator of natural death, it does the next best thing: it identifies the point at which the organs of a living person can be removed for transplantation. According to the Donation Pragmatist, in retrieving organs from individuals with brain death, we therefore break the DDR yet abide by the UDDA, albeit under a practical rather than metaphysical interpretation. As we will discuss below, the initial framers of the UDDA are best understood as Donation Pragmatists. Donation Pragmatism, moreover, avoids the problems of Business as Usual. Yet, as we will also discuss in Against Donation Pragmatism section, this cynical position conflicts with what we call the Equality Criterion, a crucial facet of Catholic anthropology and plausible moral guideline for non-Catholics. Anyone who accepts the Equality Criterion, we will argue, ought to reject Donation Pragmatism.

The third option is rejecting UDDA and retaining DDR: this amounts to rejecting the idea that “irreversible cessation of all functions of the entire brain, including the brain stem” is a reliable indicator of natural death, and that vital organs therefore cannot be removed from patients on the basis of their meeting these criteria. Since the vast majority of organs are retrieved for transplantation from people on the basis of meeting neurological criteria for death, one implication of this position is that our organ donation practices must be radically changed if they are to be ethically sound. In what follows, we therefore call the position Donation Revisionism. As we discuss below, Donation Revisionism avoids the problems of both Business as Usual and Donation Pragmatism and has been advocated for by several Catholic authors, including one of the authors of the current paper (Doran and Vukov 2019). However, we now believe there are serious problems with Donation Revisionism, since any wholehearted endorsement of the position entails a significant loss of life and a large number of people denied the chance to save their lives. We therefore argue that we ought to think twice before embracing Donation Revisionism. We give our reasons in Double Effect Donation section.

This leaves one option: reject both UDDA and DDR. That is, reject the idea that whole brain death criteria are a reliable guide for natural death and also the idea that organs can only be ethically donated by someone who has died. On the surface, such a position would seem to be patently immoral. However, in what follows, we suggest that it should be treated as a live ethical option. Properly constrained and avoiding utilitarian reasoning which compromises the sacredness and fundamental equality of human life, we argue there is an ethically sound strategy for rejecting both UDDA and DDR. The way forward: a position we call Double Effect Donation. The position, as we describe it below, claims it is permissible for a living person meeting brain death criteria to donate vital organs. To be clear from the start: we affirm unequivocally that it is always wrong to aim for the death of the innocent person. Our position therefore turns on the kind of action such a person would perform in donating vital organs: such an action is permissible if she does not aim at her own death but rather at saving one or more lives, as this constitutes a proportionately serious reason for engaging in a behavior in which one foresees one’s death as the outcome. The proponent of Double Effect Donation, we argue, can therefore reject both UDDA and DDR even while retaining a morally sound position.

Against Business as Usual

The position we are calling Business as Usual is the idea that both the UDDA and DDR should be retained. For proponents of Business as Usual, brain death criteria are reliable indicators of natural death, and organs can therefore be ethically removed for transplantation from someone meeting these criteria. This is certainly business as usual in the medical sphere. Many thousands of cases of vital organ donation each year follow a declaration of brain death rather than cardiopulmonary death. The working theory supporting this practice is that these organs are being retrieved from individuals who are unequivocally dead.

Moreover, with a few notable exceptions, Catholics for the past several decades have typically agreed with this evaluation. John Paul II (2000), in an address to the Eighteenth Congress of the Transplantation Society, appears to throw in his lot with Business as Usual:

…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.

Benedict XVI, as recently as ²⁰⁰⁸, strikes a similar tone:

In these years science has accomplished further progress in certifying the death of the patient [in embracing brain death criteria]. 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.

In short: approving of the donation of organs on the basis of a brain death declaration is standard medical practice and is typically accepted among both Catholics and non-Catholics.

In recent years, however, adherence to Business as Usual has become more controversial. Several high-profile cases, together with developments in research, have called into question the idea that brain death criteria capture natural death. Jahi McMath’s case is perhaps the most notorious. After a routine surgery, complications, and exceptionally poor medical care, Jahi had a full cardiac arrest. She survived, but sustained massive damage to her brain, and was declared dead by neurological criteria.

Despite this official declaration of death, however, Jahi did not seem to be dead. She was able to use calories, water, and oxygen to keep the homeostasis of her body pretty much normal—as long as her medical team helped her get calories, water, and oxygen. Her hair continued to grow, as did her nails. Her body fought off infections. Her heart rate elevated and lowered in response to environmental stimuli. And, a few months after being declared dead, Jahi hit puberty. Despite being legally dead, Jahi McMath seemed capable of carrying out functions and processes that are characteristic of living individuals (Camosy forthcoming).

Jahi’s is perhaps the most infamous case that calls into question the reliability of neurological criteria for natural death. But her case is not isolated. Consider, for example, just two further examples:

• Repertinger et al. (2020) documents the case of a boy who was declared dead by neurological criteria at the age of four. He was nevertheless kept on medical support for twenty years, before his bodily systems failed. An autopsy carried out afterward revealed an entirely calcified intracranial shall—no neurons remained (see Austriaco 2016 for a discussion).

• Pregnant women can continue to gestate children after having been declared brain dead and then deliver healthy babies. Esmaelizade et al. (2010) document at least thirty such cases.

Like Jahi’s case, these kinds of cases challenge UDDA as appropriate criteria for natural death. Dead people do not go through puberty or sustain themselves for twenty years (even with significant assistance) or gestate children. In the face of cases such as these, we therefore believe the UDDA must be abandoned, and with it, Business as Usual.

But maybe that conclusion is too strong.¹ We recognize that the case we have presented is far from closed. The cases we just cited are widely known, yet do not convince all scholars—not even all Catholic scholars—to reject the UDDA. Eberl (2015) and Lee and Griesez (2012), for example, defend the UDDA from an explicitly Thomistic perspective. Other scholars use a variety of strategies to argue that cases such as Jahi’s present us with individuals that seem to be alive, even though they are not in fact (Tonti-Fillipini 2011; Moschella 2016; Condic 2016). For example, Condic (2016) argues that while the bodily systems of individuals with brain death may continue to be coordinated, these systems are not integrated and that it is the integration of bodily systems that is necessary for a continued life. Positions such as Condic’s therefore allow one to argue that patients meeting brain death criteria can appear to be alive, even though they are not.

It is, of course, possible to resist this kind of reading on metaphysical grounds (see Austriaco 2016 for a discussion). While we are sympathetic to these lines of argument, we ultimately defend a more subtle position here: that even if cases such as Jahi’s do not unilaterally undermine the idea implicit in the UDDA that brain death criteria capture a metaphysical boundary between life and death, the cases nevertheless undermine our confidence in these criteria. The cases:

…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 that [uncertainty]…is enough to withdraw the endorsement [of the UDDA]. (Doran and Vukov 2019, 291)

Put differently: while there is room for good faith disagreement as to whether the brain death criteria provide a reliable guide to natural death, the very fact of disagreement should lead us to be suspicious of adopting the UDDA. The metaphysics of brain death are complicated. And this in turn muddies the epistemological waters of brain death. An honest appraisal should conclude that it is difficult to know precisely what cases such as Jahi’s show. And this degree of uncertainty in the UDDA, we believe, is itself sufficient for abandoning Business as Usual.

Turn to a different kind of objection to the cases we have presented. In particular, consider an objection that contends Jahi’s case and others like it are more a matter of the misapplication of the UDDA than of its failure. On this line of thinking, patients such as Jahi may have been misdiagnosed as meeting brain death criteria, even though they retained some minimal degree of neural functioning. And if that is true, then there is nothing intrinsically wrong with the UDDA, and we could salvage Business as Usual if only we could increase the accuracy of our diagnoses.

Importantly, this line of objection regarding misdiagnoses springs not from some conspiratorial suspicion of medical malpractice but rather directly from the reflections of medical practitioners. In a 2009 editorial published in Nature, the editors reflect on the difficulty of adhering to a strictly literal reading of the UDDA. Their thoughts are revealing, and so we will quote them at length:

In practice, unfortunately, physicians know that when they declare that someone on life support is dead, they are usually obeying the spirit, but not the letter, of the law.…In particular, they struggle with three of the law’s phrases: “irreversible,” “all functions,” and “entire brain,” knowing that they cannot guarantee full compliance…what if, as is sometimes the case, blood chemistry suggests that the pituitary gland at the base of the brain is still functioning? That activity has nothing to do with a person being alive in any meaningful sense. But it undermines a claim that all functions of the brain have ceased. As do post-mortem observations that relatively large areas of tissue can be metabolically active in different brain areas at the time death is declared…the problem is that death is not a phase transition whereby a person stops being alive and becomes dead in an instant. It is a long process during which systems, networks and cells gradually disintegrate. At some point, the person is no longer there, and can never be made to return. But the kind of clear, unambiguous boundary assumed in the 1981 law simply does not exist. (Nature 2009, 570)

According to the editors at Nature, it would therefore not be misguided to suppose that cases such as Jahi’s are misapplications of the UDDA rather than a failure of it. Indeed, the editors would have us believe that the UDDA can be incredibly difficult to apply in practice. By their lights, this is due to the boundary between life and death itself being vague. Now, this is a metaphysically contentious point. It is one that Christians (and others) may be moved to reject on independent grounds, such as the idea that death occurs at the instant of the soul’s departure from the body. Still, while the metaphysical reasoning of the editors may be contested, their practical observation stands: in practice, the UDDA can be incredibly difficult to apply, and so we have good reason to think that contentious cases of brain death such as Jahi’s are misapplications rather of the UDDA rather than a failure of it.

We concede that this line of objection is convincing. If brain death criteria are as difficult to apply as the editors quoted above suggest, there may be nothing intrinsically wrong with the UDDA as a criterion for natural death. And if that is true, then cases such as Jahi’s do not in themselves pose a threat to the position we are calling Business as Usual: the idea that brain death criteria demarcate the point of natural death and that organs can therefore be ethically removed for transplantation from someone meeting these criteria. Yet if the objection from misdiagnoses lands—if brain death criteria can be as difficult to apply as the objection contends—this ultimately undermines the practice of Business as Usual. The practice of Business as Usual depends on brain death criteria being reliable indicators of natural death—the objection from misdiagnoses, if successful, undermines their reliability. The objection therefore does not so much salvage Business as Usual so much as it pushes us towards a different position altogether.

On the one hand, we could take the limitations of applying brain death criteria to indicate the widespread need for revision of our organ donation practices. On this way of thinking, the fact that brain death criteria cannot be used to reliably determine the point of natural death means that these criteria cannot provide us with sound moral guidance for organ donation. We consider this position under the heading of Donation Revisionism in Against Donation Revisionism section.

Alternatively, we could take the limitations of applying brain death criteria to suggest the need to adopt different criteria for death or at least a different understanding of what a declaration of death by neurological criteria means. This is the direction that the editors quoted above go on to endorse. They argue that “ideally, the law should be changed to describe more accurately and honestly the way that death is determined in clinical practice” (Nature 2009, 570). In other words, while brain death criteria as they are applied may not track natural death, we can nonetheless continue to use them (or some updated version of them) as a guide for the donation of organs. We consider this strategy in Against Donation Pragmatism section, under the heading of Donation Pragmatism.

One can thus ultimately take the limitations of brain death criteria as pushing us towards either Donation Revisionism or Donation Pragmatism. These limitations, however, cannot do much to salvage Business as Usual. Indeed, whether cases such as Jahi’s speak directly against Business as Usual by providing counterexamples to brain death criteria as indicative of natural death, or whether these cases speak indirectly against Business as Usual by highlighting the difficulty in applying brain death criteria in practice, our ultimate conclusion should be the same: reject Business as Usual, and in doing so, the idea that we can retain both the UDDA and DDR.

Against Donation Pragmatism

Those who are moved as we are to reject Business as Usual must reject UDDA, DDR, or both. The Donation Pragmatist rejects DDR, the idea that organ donation should be limited to dead individuals. Yet the Donation Pragmatist also retains the UDDA or some updated version of it. According to the Donation Pragmatist, criteria for death should look more to clinical practice than to metaphysics and should therefore be understood in pragmatic rather than metaphysical terms. Put differently, for the Donation Pragmatist, brain death criteria do not demarcate the point of natural death—nor should they be expected to—but rather the point at which organs can be retrieved.

As we have seen above, the editors of Nature seem to endorse a version of Donation Pragmatism. They recognize that brain death criteria are not always strictly followed in practice, and so recommend revising these criteria to bring them more in line with clinical practice. In other words: they recommend a pragmatic rather than metaphysical interpretation of brain death criteria. We are deeply suspicious of this line of thinking. Not only because it raises potential conflicts of interest between physicians and patients but also because clinical practice varies by practitioner.² Moreover, while the editors do not explicitly mention organ donation as a motivating reason for the position they defend, as an implicit motivator, the possibility of organ donation by individuals pronounced brain dead hides right beneath the surface text.

The initial framers of the UDDA were, to their credit, more explicit about their adherence to Donation Pragmatism. In their report, the 1968 Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death make the following statement:

Our primary purpose is to define irreversible coma as a new criterion for death. There are two reasons why there is a need for a definition: (1) Improvements in resuscitative and supportive measures have led to increased efforts to save those who are desperately injured. Sometimes these efforts have only a partial success so that the result is an individual whose heart continues to beat but whose brain is irreversibly damaged. The burden is great on patients who suffer permanent loss of intellect, on their families, on the hospitals, and on those in need of hospital beds already occupied by these comatose patients. (2) Obsolete criteria for the definition of death can lead to controversy in obtaining organs for transplantation. (“Definition” 1968)

Peter Singer, in his Rethinking Life and Death, provides what we see as an accurate gloss on the Ad Hoc committee’s perspective:

[T]he Harvard committee does not even attempt to argue that there is a need for a new definition of death because hospitals have a lot of patients in their wards who are really dead but are being kept attached to respirators because the law does not recognize them as dead. Instead, with unusual frankness, the committee said that a new definition was needed because irreversibly comatose patients were a great burden, not only on themselves (why to be in an irreversible coma is a burden on the patient, the committee did not say), but also on their families, hospitals, and patients waiting for beds. (Singer 1995, 25)

The UDDA, in short, was initially proposed not as a metaphysical boundary but a practical go-ahead. Its framers thus avoided the issues faced by proponents of Business as Usual. For the Donation Pragmatist, after all, it does not matter if a brain-dead patient is really dead. All that matters is that the patient meets brain death criteria, and meeting these criteria are all it takes for organ donation to go ahead, regardless of whether those criteria accurately capture natural death.

Of course, the initial framers of the UDDA did not foresee the clinical difficulties of applying their criteria, as brought out by the editors of Nature. Yet these editors, even in questioning the criteria outlined by the Harvard Ad Hoc committee, fundamentally share a common outlook: that brain death criteria—whether as articulated in the UDDA or as articulated in some revised version of it—should aim to follow clinical practice rather than carve nature at its joints.

On our reading, Donation Pragmatism is a deeply cynical view. And it is a view, moreover, that conflicts with a plausible moral principle we will call the Equality Criterion. According to the Equality Criterion, all humans are fundamentally equal, and practices that do not reflect that are morally suspect. The Equality Criterion is a basic tenet of a sound Catholic moral anthropology but is also featured prominently in other normative outlooks. As one of us writes:

Many of us rightly believe that human equality is one of those foundational ideas necessary for a culture to be minimally decent in the first place. Most of the Western world operates as if it is just obvious that all human beings are equal. Indeed, this may be the great moral insight of our culture, held by the overwhelming majority of us across a diverse range of political affiliations and tribes. (Camosy forthcoming)

Donation Pragmatists, however, place the Equality Criterion in jeopardy. For one thing, once you have interpreted the UDDA pragmatically, there is no reason to stop the endorsement of vital organ donation at those meeting brain death criteria. The Donation Pragmatist allows the declaration of death to be guided by clinical practice. But this works only if clinical practice is guided by strict adherence to the Equality Criterion, which of course it may not be. Reading the declaration of death pragmatically creates a slippery slope, one too risky to start down. It grants physicians the final say in distinctively moral questions, questions that their training may have left them ill-prepared to answer.

Perhaps even more problematic, however, is the way in which the implicit motivation behind Donation Pragmatism undermines the Equality Criterion. The Donation Pragmatist is motivated first and foremost by a practical end goal—donated organs—not about the lives that must be trampled to get there. As one of us observes elsewhere:

The approach of the Harvard Brain Death Committee was rightly described as ad hoc; the thing being aimed at was saving more lives by freeing up more medical resources. Tragically, they gave up on the concept of fundamental human equality to do it. The precedent set by the committee was that certain living, breathing, gestating, growing, puberty-reaching, infection-fighting, and homeostasis-maintaining human beings were not the moral or legal equal of other human beings. Only these kinds of human beings, and not others, could have their vital organs removed and put into someone else’s body.

[Moreover]…it just isn’t clear what the “burden” is that the Harvard Brain Death Commission is referring to if, as they claim, someone who is brain dead is totally unconscious. Very often the burden that we attribute to patients is not on the patient at all—but rather on us. Us as personal caregivers, but also us as a community. If Jahi counts as a person, then the mandate to care for them creates a substantial burden on health care resources—and an even larger burden on our ability to get organs for transplants. Human beings who are not productive, who are disabled, and who are a net drain on resources are not considered the equals of those who are productive, able-bodied, and who produce a net gain of resources. (Camosy forthcoming)

The Equality Criterion—and thus a sound Catholic moral anthropology--resists this kind of thinking at all costs. The Criterion is:

a bulwark against the kinds of utilitarian approaches which would target the most vulnerable among us and discard them in the name of producing better consequences for others. Genuine human equality means that accidental traits like age, level of ability, reliance on others, level of self-awareness, rationality or autonomy do not affect the value of a human being—which comes from their nature as human beings and nothing else. (Camosy forthcoming)

In short: precisely the view of human nature that the Donation Pragmatists rejects. Anyone who accepts the Equality Criterion—Catholics certainly, but not only Catholics—should therefore reject Donation Pragmatism.

Against Donation Revisionism

We are not the first to raise objections to Business as Usual or Donation Pragmatism. Several scholars have advanced arguments concluding that both strategies ought to be abandoned.³ These scholars, moreover, have often advanced a seemingly attractive alternative in their stead: what we are calling Donation Revisionism.

Donation Revisionists reject UDDA and retain DDR: they believe brain death criteria do not capture natural death and that the criteria therefore cannot be used as a sound moral guideline for the donation of organs. Donation Revisionists, moreover, typically arrive at their position via the kinds of arguments we have advanced above: the failure of brain death criteria at reliably demarcating the point of natural death; and the strong resistance to any position that would treat the human being as a mere means to a medical end. Donation Revisionists thus take on board the best empirical evidence of the day, solid historical evidence from the history of organ donation, and an outlook that takes the Equality Criterion seriously. We are happy to concede: Donation Revisionism is an attractive option.

Yet it is not an ideal option. The name we have chosen for the position suggests why. Donation Revisionists are revisionist because their position entails that our organ donation practices must be radically changed if they are to be ethically sound. The reason, as we have seen above, is that the vast majority of organs are retrieved for transplantation from people on the basis of meeting neurological criteria for death. There is no way around it: implement a version of Donation Revisionism, and a significant number of lives will be lost, and a large number of people will be denied the chance to save their lives. That should not sit well with a Catholic bioethicist, or indeed, with anyone. As will become clear below, our reasoning here is not utilitarian, though it is a properly constrained attempt to produce a good outcome. The reason Donation Revisionism is disturbing to us does not turn on the loss of transplantable organs, but rather on the preventable loss of lives, and the missed opportunity for organ donors to save lives. In short, our reasoning turns on the very same kind of reasons that led the Church to embrace organ donation in the first place, despite countervailing arguments comparing the practice to bodily mutilation.⁴ While the position may seem to be “playing it safe,” Donation Revisionism has consequences of the kind that in other contexts would be deeply disturbing. We should be disturbed enough to think faithfully and creatively about other options.

But where to turn? We have suggested that Business as Usual and Donation Pragmatism ought to be rejected. And we have also suggested that while Donation Revisionism is a better alternative, it is also left wanting. The only remaining position? A position which rejects UDDA and DDR. A position, that is, that rejects brain death criteria as a sound demarcating principle for natural death yet keeps open the possibility for living individuals to donate vital organs. Such a position would seem to fly in the face of the Equality Criterion, would seem to be a clear instance of human beings serving as a means to a medical end. But we think the position—or at least a version of it we call Double Effect Donation—ought not be passed over so quickly. In what follows, we therefore introduce the position and show why it may be a morally viable option.

Double Effect Donation

Readers of this journal do not need to have the principle of double effect explained to them, especially in the context of Catholic ethics. There is a wide literature on the principle, especially about boundary cases in which disagreement about how to apply it (and whether it works at all) becomes quite hot. There is, in particular, an important debate about the relation of the intention of the agent and the nature of the act in itself to the object of the act. As we will see below, these debates are largely irrelevant to our argument. And the basics of how the principle informs our argument are largely undisputed. The principle allows the ethicist (and any person acting morally) to preserve both the idea that (1) it is always wrong to the aim at the death of an innocent person and (2) given proportionately serious reasons, one performs an act in such a way that one foresees, but does not intend, that the death of one or more persons is the likely effect of one’s action.

How might the principle of double effect be relevant to the issue on the table? In short: we propose in certain constrained situations, it is permissible for a living person to donate vital organs in a way that does not aim at her own death or constitute an example of killing of its very nature. Rather, such a person can aim instead at saving one or more lives, and in doing so, act with a proportionately serious reason for engaging in a behavior in which one foresees that one’s death is the likely outcome. On our reading of it, the principle of double effect delivers the verdict that such an action is permissible.

We understand that this is a counter-intuitive position, one which will be met with skepticism in several quarters. An obvious objection is surely looming in the minds of several readers: how could removing a vital organ from a living person for transplant into a different person be anything other than aiming at the death of the donor? Clearly, the death of the innocent donor is the means by which the end of the act is achieved, an intended part of the act, and therefore impermissible under Catholic moral theology. One might also say that “vital organ removing” is, of its very nature, an act which aims at death. We will say more about these objections in a moment, but first a story will help us set up our position.

Although it starred Denzel Washington, Robert Duvall, James Woods, and Anne Heche, the 2012 film John Q did not get very good reviews and thus missed the attention of much of the American public. For (bio)ethicists, however, the story is an absolute goldmine. The short version is that Washington’s character, John Q—having just been demoted at work and as a consequence losing his health insurance—has failed to come up with a down payment of $75,000 to get his son on a waiting list for a life-saving heart transplant. Totally desperate to save his son’s life, he enters a hospital and takes hostages at gunpoint. Through a series of admittedly convoluted maneuvers, John Q manages to convince the transplant doctor to take his heart and transplant it into his son. This after John Q plans to shoot himself in the head.

Now in the movie John Q does attempt to kill himself as a means of setting up the operation. He loads the gun (showing the audience he never meant to hurt anyone), pulls the trigger once, but fails to kill himself because the safety is still on. And that moment in the story his wife rushes into the hospital and says a donor heart is on the way for their boy and he no longer has to do this. John Q’s son has been saved.

But suppose, to help illustrate our argument here, the story played out differently. Suppose the transplant doctor had instead put John Q on an ECMO machine to circulate his blood during the operation, a context in which he could live for a brief period of time after his heart was removed. Suppose also that, just as the doctor was patching up his son, John Q’s wife and the transplant courier come in with the donor heart and that heart is put into her husband’s chest, saving his life as well. How should we evaluate this case morally speaking?

This story helpfully illustrates that the act of removing John Q’s heart for transplant into someone else is not of its very nature aiming at the death of John Q. In the second scenario, John Q is still willing to sacrifice himself for the sake of his son, yet the death of John Q is quite clearly not the means by which his son’s life is saved. Indeed, in this scenario, his son is saved and John Q’s life is saved. His intentions are not thwarted. The alternative scenario highlights that John Q’s intention in both scenarios—to save his son—can be fulfilled without his own death. His death may be nearly impossible to avoid, and he certainly foresees that it is the overwhelmingly likely result given what he must do to save his son. But the alternative scenario brings out the fact that if, against all odds, he does avoid his own death, this does not result in a failed action but rather a happy ending.

In addition to clarifying the relationship between death and the intention of John Q, our alternate ending helpfully demonstrates that removing John Q’s vital organ for transplant does not of its very nature aim at his own death. The fact that he is very much alive in our scenario, we take it, counts as a reductio for positions to the contrary. There are examples of actions—such as direct abortions—in which the death of the person is built into the very nature of the act such that double effect cannot be brought to bear. But this is not one of them.

John Q helps demonstrate that the principle of double effect can and should be applied in the case of donating vital organs. One is not necessarily aiming at death here but rather acting in such a way that one foresees that one’s death is the overwhelmingly likely (and in almost all cases, the inevitable) result. But such an action, on the principle of double effect, can be justified in certain limited circumstances for proportionately serious reasons. And what could be a more serious reason than saving the life of another? To lay down one’s life for one’s friends?⁵

From this, we conclude that the donation of vital organs by a living person is not an intrinsically evil act, since it is not aiming at the death of an innocent person. John Paul II, in his very endorsement of DDR, implicitly agrees with us here. After claiming 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,” he goes on to observe that, “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). We have not disagreed with John Paul II’s overall reasoning here; we have simply suggested that the intentions behind vital organ donation can be more complex than the quote suggests.

Moreover, the kind of intention in vital organ donation that we have described—where the intention is to save a life, not end one—is widespread. We acknowledge that there are cases in which the donation of a vital organ when a human being is brain dead could be an act with a complex intention—one in which the death of the donor is also intended. Perhaps, for instance, someone choosing assisted suicide for themselves could aim at saving someone’s life with his vital organs and also aim at their own deaths because they no longer wish to continue to live.

But there is nothing necessary about that intention being present. Indeed, the case of organ donation as part of a choice for assisted suicide demonstrates what is so morally different about our alternate John Q example, and, indeed, of the clear majority of choices to donate vital organs. Killing one’s self via assisted suicide and donating one’s organs is of course impermissible because it is an act which aims at death. Again, we very much reject such obvious cases of Utilitarian thinking. What makes our argument different rests totally on how we understand action theory. We justify the removal of organs from individuals by looking to the nature of the action being performed. If we are wrong about the relevant action theory, and the only way to obtain vital organs from a brain dead person is to aim at their death, we reject the utilitarian act of taking such organs as an impermissible, intrinsically evil assault on human dignity and fundamental human equality. As we emphasized in the introduction, we affirm unequivocally that it is always wrong to aim for the death of the innocent person. We do not believe that is what is typically being done in organ donation by individuals with brain death. But if it is what is being done, we reject the action categorically. In this case, respect for the human person requires that physicians may not licitly retrieve, nor many these patients licitly donate, the vital organs in question.

But is there not something categorically problematic with endorsing actions in which one is fatally impinged on for the benefit of others? Does this not this kind of “laying down one’s life” amount to suicide? The answer is: it depends what is meant by saying that one cannot “lay down one’s life.” If it means that one cannot licitly aim at one’s own death as a means of benefiting others, then we very much agree. However, if it means that one cannot act in a way to benefit others in which one foresees—but does not intend—that one’s death is a likely or all-but-certain outcome, then this would entail some strange positions. For example, the position would seem to entail the condemnation of actions such as those of St. Maximillian Kolbe who intentionally asked to take the place of another who was going to be killed. But of course St. Maximillian Kolbe’s actions did not amount to suicide and are perfectly consistent with Catholic moral theology. The reason is that his will or intentions would not have been thwarted if he somehow avoided death (say, all the prisoners were somehow liberated before his execution). Likewise, as the example from the film shows quite clearly, Denzel Washington’s character does not “kill himself” as a means to the end of saving his son. Quite the contrary, in fact.

There are those who object to the kind of argument we are making on a slightly different ground, however. Watt and McCarthy (2019), for instance, argue that in some circumstances, matters related to the moral act beyond the intention can be decisive for the moral nature of an act (Watt & McCarthy 2019). While Watt and McCarthy’s (2019) discussion centers on abortion, their central claim is general one:

…it is wrong to treat all unintended side-effects as if they were “mere” side-effects which sufficiently good intended outcomes could in principle outweigh. Rather, some side-effects or aspects of human actions are morally conclusive when combined with some intentions… [Acknowledging this reality is] crucial in evaluating human acts, both in and outside medicine, perhaps especially those which focus on the bodies of young/otherwise innocent human beings. Bodily respect for innocent human beings, including respect for certain absolute bodily rights, goes well beyond the mere avoidance of intentional causation of death and serious injury.

In short: certain actions that lethally violate bodily integrity are wrong in themselves, regardless of the intention of the agent.

As far as the overall principle goes here, we very much agree with it. One of us has argued (in a way that mirrors Watt & McCarthy’s discussion) that one cannot claim that the craniotomy of a living baby does not aim at the baby’s death because one’s intention was to save the life of the mother and the baby’s death was merely foreseen. The craniotomy of a living human being has death built into the nature of the act itself and nothing about the agent’s intentions can change that (Camosy 2015, 65–67).

Watt and McCarthy, however, argue that this general principle applies to what they describe as “Lethal/mutilating organ harvesting,” which may have overlap with what kinds of organ donation we are discussing. They claim that such an act is “wrong in itself” because there is “serious permanent harm and no health benefit foreseen or intended for the donor.” While it is certainly possible that this kind of moral analysis might work in certain circumstances of organ retrieval, we see no reason why it would apply in all circumstances. Again, we believe the John Q example illustrates nicely that death is not built into the nature of the act itself.

But we can sharpen our point by expanding on the illustration: suppose that rather than donating a vital organ to save his son’s life, the movie was instead about John Q throwing his body in front of a motorbike (ridden by someone aiming to kill his son) to save his life. Suppose John Q fully realizes that there will be “serious permanent harm and no health benefit” for him, and that, moreover, he fully realizes that the act will lethally violate his bodily integrity. Would it follow that his act, which involved the intention to using his body to derail the path of the motorbike, was “wrong in itself”? If not, then we do not believe Watt and McCarthy’s objection applies to our particular example of vital organ donation.

The critic may nonetheless object that the position we have sketched is overly similar to one we have rejected: Donation Pragmatism. Both positions, after all, allow for the donation of organs by still-living individuals. Both reject the UDDA as a metaphysical demarcation of natural death. On the surface, the actions endorsed by the Donation Pragmatist and Double Effect Donation seem similar indeed.

The objection is crucial, and we will take some time to respond to it, since doing so will help clarify our position. To start, then, while we concede the superficial similarity of our position and Donation Pragmatism, we also insist the similarity is only superficial. The reason has to do with the intentions behind the kinds of actions we endorse and those that the Donation Pragmatist endorses, and the way in which these intentions ultimately make the actions differ in type. To see this, it will be helpful to reflect on how intentions are relevant to the individuation of actions generally. So consider the following three scenarios:

Swing for the Win: Barry is a baseball player, and is up to bat in an important game. Top of the ninth. Two outs. Bases loaded. Down by three. 3-2 count. Barry steps up to the plate knowing what he needs to do: drive home at least three runs (to tie the game and hopefully push the game into extra innings), preferably four (for a possible/likely win with a save in the bottom of the ninth). He swings. A hit. No, not just a hit. A grand slam. The next player grounds out, but the closer comes in for the save in the bottom of the ninth. Barry’s team wins.

Barry’s Bet: Barry is back up to bat in a different game. Top of the ninth. Two outs. Bases loaded. 3-2 count. This time, though, Barry’s team is up by one run. Scoring is not necessary to secure the possibility of winning. But a twist: Barry has bet on his own team, and they are favored to win the game by four runs. If Barry does not get on base, it is therefore possible that he can still win the game, but not the bet. So Barry steps up to the plate knowing what he needs to do: drive home at least three runs (for a push on the bet), preferably four (for a winning bet). He swings. A hit. No, not just a hit. A grand slam. The next player grounds out, but the closer comes in for the save in the bottom of the ninth. Barry wins the bet.

Home Run Derby: Barry is a baseball player competing in a home run derby. He has made it to the final round and is at the plate. He knows what he needs to do: secure one last home run. He swings. A hit. No not just a hit. A home run. Another trophy for Barry.

Suppose that physically, the actions in each of these three scenarios are indistinguishable. Suppose Barry’s neurons fire in precisely the same way; his feet shift in precisely the same way; he moves his bat through the air in precisely the same way and so on. On a physical level, Swing for the Win, Barry’s Bet, and Home Run Derby are indistinguishable.

And yet, we submit that each scenario captures a different type of action. It is easiest to see this by comparing Home Run Derby to the other two scenarios. This scenario differs from the others because (among other things) the success conditions of Home Run Derby differ from the success conditions of the other two actions. For suppose that in either Swing for the Win or Barry’s Bet, the ball bounces off the back wall. The outfielder commits a sloppy error, and Barry circles the bases despite the ball not having left the park. In this case, Barry’s intentions are fulfilled even though he did not earn a home run. But now suppose that in Home Run Derby, the same thing happens. The ball falls short of the back wall. In this case, it does not matter what happens next. Barry has lost the home run derby. He has failed in what he intended to do. Thus: the success conditions of the three actions differ, even though they are superficially indistinguishable. Generally, this difference shows that the intention behind an action is part of what goes into identifying the type of action that it is.

Take this lesson and apply it to Swing for the Win and Barry’s Bet. While the success conditions of these actions are roughly the same—and while the actions are therefore not as obviously different from each other as they are from Home Run Derby—the actions still differ from each other. Sure, there is some overlap in Barry’s intentions in the two scenarios: in both, he is aiming to drive home at least three runs. Yet Barry is clearly motivated by two very different considerations in the two scenarios. In Swing for the Win, Barry is primarily aiming at winning the game. That is why he is aiming at driving home at least three runs. In Barry’s Bet, however, Barry is primarily aiming for something different: winning his illicit bet. That is why he is aiming to drive home at least three runs in this scenario.

This difference between Barry’s Bet and Swing for the Win may seem subtle. But we submit that the difference, while subtle, has crucial implications, much as a crack in the foundation of a house can have far-reaching effects. For consider our moral evaluation of the two actions. In Swing for the Win, we view Barry’s action as morally commendable or at least as morally neutral. There is nothing morally suspect about aiming to win a baseball game when that is your job. In Barry’s Bet, however, things are quite different. There is something morally blameworthy about aiming to win an illicit bet. Despite the superficial similarity between the actions in Barry’s Bet and Swing for the Win, our moral evaluation of the actions therefore differs significantly. Generally, the difference between Barry’s Bet and Swing for the Win shows that seemingly subtle differences in intentions behind physically indistinguishable actions can make a drastic difference to our moral evaluation of those actions.

To clarify things further, let us think about an analogous situation which moves us away from the ball diamond and closer to the kinds of cases we have in mind in this article. In his Peter Singer and Christian Ethics, Camosy (2012) is interested in comparing Singer and Catholic teaching on a host of matters, but one significant issue is on the treatment of the terminally ill. Camosy, as an orthodox Catholic, wants to preserve the rule against direct killing at the end of life via euthanasia while still invoking double effect for palliative care in which one foresees but does not intend that death will be substantially sped up as a result. This while Singer insists on the permissibility of straight-up aiming at the death of the patient via quite direct means. That is, he favors euthanasia.

At first glance it might not be clear why there is an interesting comparison to be made here, but Camosy shows that the Church and Singer actually agree superficially on the physical action that is morally permitted in such circumstances. Both would agree, for instance, that the physical action of injecting a dying patient with a large dose of pain-control medicine will lead to a much faster death. But they part ways rather dramatically when the intentions behind the physical act are quite different. For instance, if the injection was an example of a doctor aiming at the death of a disabled patient who was (in Singer’s view) a human nonperson, this could well be a licit action from his perspective.

The Church would obviously call this out as direct killing of the innocent and therefore obviously wrong. If, however, the doctor gave the same injection with the same dosage, but with the intention of saving the patient from pain and suffering and only foreseeing without intending that death would be made to come much more quickly, the Church could say that the very same physical action was very much licit. Even morally praiseworthy.

This thus leads us to the reason why the position we have defended above does not collapse into a version of Donation Pragmatism. For the kind of action we endorse—removing the organs from a still-living individual to be transplanted to another—may superficially resemble the kind of action endorsed by the Donation Pragmatist. On closer examination, however, and given our discussion, it becomes clear that the actions in fact differ significantly. Our position endorses the removal of organs from a still-living individual only when that action is primarily aimed at saving a life. According to Double Effect Donation, this action is not intrinsically evil, since it aims at saving a life, even though the loss of a life is a foreseeable likely (and in most cases, inevitable) consequence. The Donation Pragmatist, by contrast, aims primarily to alleviate “the burden” on those “patients who suffer permanent loss of intellect, on their families, on the hospitals, and on those in need of hospital beds already occupied by these comatose patients” (“Definition” 1968). The Donation Pragmatist aims primarily to end a life; Double Effect Donation aims primarily to save one. The difference could not be starker.

Conclusion

By way of closing, we will consider another kind of objection to the position we have staked out. In particular: if Double Effect Donation were true, would it not prove too much? For if Double Effect Donation allows for the donation of organs by individuals with brain death under the principle of double effect, does this not entail that, for example, perfectly healthy individuals could also donate their organs under the principle of double effect? In other words, does not Double Effect Donation imply that organ donation by still-living individuals is morally permissible in a very broad range of cases?

The short answer is: yes. But we find this to be a virtue of the theory we have defended, not an objection to it. Allow us to explain.

In outlining Double Effect Donation, we have aimed to take the personhood of individuals with brain death seriously. We have aimed to afford individuals with brain death a level of dignity on a par with healthy individuals. Our reasoning here stems directly from the Equality Criterion—the idea that all humans are fundamentally equal, and practices that do not reflect that are morally suspect. This is what led us in our discussion above to reject both Business as Usual and Donation Pragmatism.

Yet we have also questioned those perspectives on donation so revisionary that they undermine current practices and lead to an avoidable loss of life. Our reasoning for this comes not from Utilitarian concerns about maximizing the number of organs to be donated but rather from precisely the same place as our reasoning for rejecting Business as Usual and Donation Pragmatism: we want to abide by the Equality Criterion and take the personhood of individuals with brain death seriously. Indeed, from one perspective, our position shows more respect for these patients than in current conventional circles of Catholic moral theology which, in our view, have too easily abandoned respect for these persons. And among other things, this means allowing individuals with brain death to aim for a good—the saving of a life—even when the loss of their own life is a foreseeable outcome. In short: Double Effect Donation is built on the Equality Criterion, one that elevates the humanity of brain dead individuals to be on a par with all persons, healthy and otherwise.

But if that is true, the converse also holds true: perfectly healthy individuals are morally on a par with individuals with brain death. So if there are circumstances in which it is morally permissible for an individual with brain death to donate their organs even though their death is a foreseeable outcome, then so too there are circumstances in which it is morally permissible for a healthy individual to donate their organs even though their death is a foreseeable outcome. In short: this implication of Double Effect Donation is not so much an objection to the theory but rather a natural outgrowth of it.

Suppose, though, that this implication—the idea that there may be circumstances in which perfectly healthy individuals can ethically donate their vital organs—should still seem problematic. We admit it: the position is a bitter pill. And there is certainly more to be said on the subject. But this is neither the time nor place to wade much further into these waters. So by way of closing, instead of offering a full treatment, we will instead close with some very brief thoughts on a framework we feel may be helpful for approaching the issue: martyrdom.

Although we would need at least another article of this length to make a compelling case for how it relates to our arguments above, it is worth noting here at the end that (1) Sacred Scripture teaches that there is no greater love than to lay down one’s life for a friend and (2) Sacred Tradition teaches that the great martyrs of old were so great (even obtaining a baptism of blood) precisely because they acted with this kind of love. Crucially, however, these actions (to the extent that they were authentically loving and praiseworthy) were not examples of suicide. They were not examples of aiming at one’s own death. On the contrary, neither the nature of the acts of the great martyrs, nor the intentions behind them, had anything to do with death. They merely foresaw that their own deaths were the overwhelmingly likely result of their actions. The fact that they had such proportionately important reasons for doing so not only meant that their actions were not intrinsically evil, it meant that stories of their holy and honorable acts would be told throughout the centuries as paradigmatic examples of Christian virtue.

Biographical Notes

Charles C. Camosy, PhD, grew up in the cornfields of Wisconsin, but he is now an associate professor of theology at Fordham University in the Bronx, where he has taught since finishing his PhD in theology at Notre Dame in 2008. Among other places, his published articles have appeared in the American Journal of Bioethics, Journal of Medicine and Philosophy, Journal of the Catholic Health Association, New York Times, Washington Post, Los Angeles Times, New York Daily News, and America magazine. He has a monthly “Purple Catholicism” column with Religion News Service and is the author of five books. Too Expensive to Treat? (Eerdmans) was a 2011 award winner with the Catholic Media Association, Peter Singer and Christian Ethics (Cambridge) was named a 2012 “best book” with ABC Religion and Ethics, and For Love of Animals (Franciscan) was featured in the New York Times. Beyond the Abortion Wars (Eerdmans), was a 2015 award winner also with the Catholic Media Association. His most recent book, Resisting Throwaway Culture (New City), was published in May 2019 and won first place from the Catholic Publishers Association as “Resource of the Year.” His next book, currently under peer-review, connects secular medicine and bioethics rejection of fundamental human equality to their rejection theology as a discipline worth engaging. In addition to advising the Faith Outreach office of the Humane Society of the United States, the pro-life commission of the Archdiocese of New York, and the American Solidarity Party, he received the Robert Bryne award from the Fordham Respect Life Club and received the 2018 St. Jerome Award for scholarly excellence from the Catholic Library Association. He has four children, three of whom he and his wife Paulyn adopted from a Filipino orphanage in June 2016.

Joseph Vukov, PhD, is an assistant professor of philosophy at Loyola University Chicago. His research and teaching explore questions at the intersection of ethics, neuroscience, and philosophy of mind, and at the intersection of science and religion. He also leads Loyola’s Interdisciplinary Philosophy and Bioethics Lab (iPAB Lab). His published work has appeared in the Journal of the American Philosophical Association, Synthese, The Journal of Medicine and Philosophy, The American Journal of Bioethics: Neuroscience, The Chronicle of Higher Education, and elsewhere. He is the recipient of the 2019 Provost’s Award for Excellence in Teaching, and a 2020 Edwin T. and Vivijeanne F. Sujack Master Teacher Award.