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SPH Ethicist: Organ Donor Proposal “Bizarre”

Annas deplores “good as dead” criterion

| From BU Today | By Susan Seligson

A proposal to remove donor kidneys from “as good as dead” patients would be unconscionable, says BU medical ethicist George Annas. Photo by Kalman Zabarsky

With nearly 100,000 Americans needing donor kidneys and a typical wait of three to five years, transplant surgeons and some bioethicists are proposing easing the rules—extending the live donor category to expand to include “emotionally related” donors, from spouses to friends, paying donors, or finding other ways to improve the number and quality of organs taken from trauma victims who are brain dead. The most controversial proposal, by an associate professor of surgery at Brown University’s Alpert Medical School, suggests that doctors not wait until donors are actually brain dead to remove their kidneys. In an article published in the American Journal of Bioethics, Paul Morrissey argues for rule changes that would allow doctors to anesthetize and harvest organs from severely brain-injured patients who are, according to the prevailing definition, still alive.

“Under this protocol, the donor is alive at the time of kidney recovery, but a determination has been made and confirmed by medical experts that death is imminent,” Morrissey writes, noting that kidneys harvested after brain death are often damaged and unusable. Morrissey’s proposal does not sit well with George Annas, a William Fairfield Warren Distinguished Professor and a professor at the Schools of Medicine, Law, and Public Health, where he is chair of health law, bioethics, and human rights. Bostonia spoke recently with Annas, who served in the 1980s as chair of the Massachusetts Organ Transplant Task Force. Author or editor of several books, among them American Bioethics: Crossing Human Rights and Health Law Boundaries, Annas explains some of the dire implications of the proposed protocol, which was endorsed by several surgeons and ethicists in comments on Morrissey’s article.

Bostonia: Do you think relaxing the protocol to procure kidneys from irreversibly brain-injured—but alive—donors makes any sense?

Annas: It makes no sense at all. All transplant surgeons know that the number-one issue is trust, that there should be no conflicts of interest, that you never want to hurt anyone who is still alive, and you don’t call in an organ team until after the person is dead. Otherwise you’re in a position of using this live person just as a means to somebody else’s end.

Would a broadening of the donor pool mean there would be significantly more viable kidneys for transplantation, as proponents claim?

The number of organs is a different question. Even though it’s a supply and demand problem, we only look at the supply side. We don’t look at how to end end-stage renal disease the way we look at lung disease and smoking. This proposal continues this distraction from the demand side and would have a trivial impact on the supply side and could even make it worse. It could turn people off. Even when doctors say a patient’s chance of survival is hopeless, people don’t always believe that.

Responding to the Morrissey article, a University of Kansas professor said that removing both kidneys from living patients “would not make the donor worse off.” Isn’t that a callous attitude for a doctor?

That’s a bizarre approach to patients. According to that argument, we should be able to take one kidney out of anybody who’s in the hospital. The vast majority of organ donors are people who have died prematurely, in motor vehicle or motorcycle accidents. It’s always a tragedy. Surgeons may look at it as an opportunity. But every transplant is a public health tragedy.

The proposed protocol would mean that donors who aren’t yet brain dead could be given anesthesia before the surgery to remove their kidneys, the assumption being that they can still feel pain. How does that sit with you, ethically?

The bottom line is, you shouldn’t take organs unless the person’s dead. If you’re giving anesthesia, you know the person isn’t dead. A good rule is, never take organs vital to survival from someone you think you have to anesthetize.

Much is made of the notion of consent; if the surgeons gain it, they are on firm ethical ground.

I assume this guy would also argue that people should be able to sell their organs. If it’s only a matter of consent, why shouldn’t you be able to sell both kidneys?

Some people think that because consent is necessary, it’s also sufficient. Again, it’s like a person who walks in offering to donate his heart. You’re not going to do that; it’s called murder. So consent isn’t sufficient. You can’t hurt someone just because he’s dying. You can’t shoot someone in the head 10 seconds before he’s going to die anyway. This is actually a very radical proposal. It seems plausible on the surface until you look at the justifications—you need organs, and we have consent. It’s as if the goal of medicine is to do more transplants. But the goal is to prevent disease when you can and treat it when you can’t.

Aren’t doctors often wrong in predicting imminent death?

Yes; when it comes to transplants, destined to die is a bad thing, dead is okay. Doctors are notoriously bad at predicting when someone’s going to die. There’s a lot of data from intensive care units and other studies showing they’re not good at that. Humans are incredibly resilient and adaptable.

Do proposals like this make transplant surgeons look predatory?

I think organ transplants are a good thing. I think the reason the public supports them is because we do have rules about conflict of interest and dead donors; if you’re just a utilitarian, you could turn the public against this stuff. It makes the doctors look like vultures instead of caring people.

Would families buy this, the notion that their loved ones are “as good as dead?”

I think most people would find it just hard to believe. Most people would think, they must mean he’s dead, there is no such thing as “as good as dead.” It’s all or nothing—you’re either dead or you’re not dead. Some people argue that brain death is a mistake, that there are still cells dividing. But I think that’s a quibble. If your brain loses the capacity to keep you alive, it’s dead. It doesn’t function in any meaningful way. People have accepted and lived with the concept of irreversible cessation of brain function for 40 years. Once you decide you’re going to move the definition to another area, the question is, when do you draw the line? I’m actually surprised that any surgeon would sign on to a proposal like this.

If this were adopted, would it necessitate a change in the law?

If it’s going to kill people, yes. You’d have to change homicide law. There was a case several years ago in Denver of heart transplant surgeons using organs from newborns who were dying of severe brain injuries. The surgeons recovered hearts for transplantation from dying infants soon after they were removed from ventilators and their hearts stopped beating—waiting only one to three minutes instead of the recommended five minutes. The problem is, how long do you wait? If it were less than three minutes, or one minute, they would be accused of killing these children. So the hospital got the local district attorney to agree to this protocol, and a coroner’s office representative was in the operating room when it was done. It was a spectacular experiment, and the closest analogy to this proposal. The next step is not declaring death at all, but declaring as good as dead.

Do you think it’s possible this type of organ harvesting is occurring already, quietly?

I actually don’t think this is going on. You’d be taking a tremendous chance. Once it got publicized that doctors are playing fast and loose with death criteria, if you’re a transplant surgeon that’s the last thing you want. If you lose that trust, you never get it back.

Do proposals like this dissuade people from designating themselves as organ donors?

In surveys about why people wouldn’t designate themselves as organ donors, the number-one reason is fear doctors would give up on them too easily. But historically the main requirement has been to keep the transplant team absolutely separate from the treatment team.

Do you think there’s a chance of this actually catching on?

This is bizarre. This is like bioethics in a parallel universe, not in this universe.

This is a bad idea, and hopefully we’ll see these guys say later on that they were just testing the waters.

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