Death, Dying, and Organ Transplantation: Reconstructing Medical Ethics at the End of Life

209 Pages·2011·0.859 MB·English

by  Franklin G. Miller, Robert D. Truog

Death, Dying, and Organ Transplantation
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Death, Dying, and
Organ Transplantation
Reconstructing Medical Ethics
at the End of Life
FRANKLIN G. MILLER
AND
ROBERT D. TRUOG
1
1
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Library of Congress Cataloging-in-Publication Data
Miller, Franklin G.
Death, dying, and organ transplantation : reconstructing medical ethics
at the end of life / Franklin G. Miller and Robert D. Truog.
p. ; cm.
ISBN 978-0-19-973917-2
1. Euthanasia—Moral and ethical aspects. 2. Procurement of organs,
tissues, etc.—Moral and ethical aspects. I. Truog, Robert. II. Title.
[DNLM: 1. Withholding Treatment—ethics. 2. Ethics, Medical.
3. Euthanasia, Active—ethics. 4. Tissue and Organ Procurement—ethics. WB 60]
R726.M5525 2011
179.7—dc22 2011003572
____________________________________________
1 3 5 7 9 8 6 4 2
Printed in the United States of America
on acid-free paper
CONTENTS
Preface vii
Acknowledgments xi
1. Withdrawing Life-Sustaining Treatment: Allowing to
Die or Causing Death? 1
2. Active Euthanasia 26
3. Death and the Brain 52
4. Challenges to a Circulatory–Respiratory Criterion for Death 80
5. Donation aft er Circulatory Determination of Death 97
6. Vital Organ Donation without the Dead Donor Rule 113
7. Legal Fictions Approach to Organ Donation, with Seema K. Shah 153
8. Epilogue 172
References 175
Index 187
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PREFACE
M odern medicine has achieved an exalted status in contemporary society,
in large part because of its technological prowess in preserving life. Two of the
most notable examples are the interventions performed in intensive care units
(ICUs) and organ transplantation. While the life-preserving powers of medi-
cine refl ected in these two examples have been lauded, it has not been widely
recognized that these powers go hand in hand with practices that (legitimately)
cause the death of patients: withdrawing life-sustaining treatment, such as
ventilators, dialysis, and feeding tubes, and procuring vital organs for trans-
plantation. Th e death-causing fl ip-side, so to speak, of these forms of life-
preserving technology has been obscured by fundamental commitments of
established medical ethics at the end of life: the traditional norm that clinicians
must not kill their patients and “the dead donor rule,” which prescribes that
vital organs can be procured only from dead human beings. A semblance of
coherence between the practices of withdrawing life support and procuring
vital organs and established medical ethics has been maintained by understand-
ing treatment withdrawal as merely allowing patients to die and by transform-
ing the traditional medical criteria for determining death, such that vital organ
donors are declared dead prior to organ procurement.
I n this book we argue that the conventional accounts of withdrawing life-
sustaining treatment and procuring vital organs are mistaken: both involve
causing the death of patients. Our aim is not to challenge the ethical legitimacy
of these practices but to demonstrate that medical ethics needs to be recon-
structed so that it harmonizes with the reality of these practices. In facing up to
the reality of common medical practices at the end of life we are not left with an
ethical vacuum. Ethical resources are readily available to justify causing death
by withdrawing life support and procuring vital organs from still living patients.
To do so, however, requires abandoning the absolute norm that clinicians must
not intentionally cause the death of their patients and the dead donor rule.
viii Preface
Oft en moral progress comes from giving up practices that confl ict with
established or evolving moral norms, as in the movements for civil rights for
historically disadvantaged minority groups and gender equality. In other cases,
moral progress can come from recognizing that established norms are unsuit-
able because they are incompatible with the reality of ethically legitimate
common practices. Established norms are not always justifi ed, or may need to
be revised or reconstructed. When legitimate institutional practices deviate
from faulty norms, what is needed is to change the norms, not to abandon
norm-confl icting practices. Such is the situation we face with respect to medi-
cal ethics at the end of life.
PLAN AND OUTLINE OF THE BOOK
In Chapter 1 we discuss withdrawing life-sustaining treatment. Th e argument
that this routine practice causes the death of patients, rather than merely allows
them to die from their underlying medical condition, sets the stage for the eth-
ical analysis that we deploy throughout the book. We contend that the patent
causal contribution of treatment withdrawal to the timing of patients’ deaths
and the intentions of clinicians involved in this practice are obscured by a
morally biased description of the facts, which is driven by the continued com-
mitment to the traditional norm of medical ethics that doctors must not inten-
tionally cause the death of their patients.
W e take up the ethics of active euthanasia in Chapter 2. Appreciation that
withdrawing life support causes the death of patients undermines the tradi-
tional bright lines in medical ethics that distinguish this legitimate practice and
palliative care from the allegedly illegitimate practice of active euthanasia by
lethal injection. Considerable attention is devoted to assessing active euthana-
sia in light of an account of the role morality and the professional integrity of
physicians, which have to a large extent been neglected in philosophical treat-
ments of this issue. We argue that professional integrity does not preclude active
euthanasia but limits this practice to interventions of last resort for relieving the
suff ering of incurably ill patients. Policy considerations relating to legalization
of active euthanasia are addressed as well.
In Chapters 3 and 4 we undertake an extended analysis of the determination
of death on the basis of neurological criteria, which plays a central role in the
prevailing justifi cation for transplantation of vital organs. Drawing on knowl-
edge regarding the functioning of individuals who meet the diagnostic criteria
for “brain death,” we contend that they are not dead in accordance with the
established biological conception of death in terms of the cessation of the
integrative functioning of the organism as a whole. A recent attempt by a U.S.
Preface ix
bioethics commission to uphold the neurological criteria for determining death
by developing a novel account of why “brain dead” individuals are dead fails to
withstand critical scrutiny. In Chapter 4 we defend the traditional basis for
determining death by means of circulatory and respiratory criteria from objec-
tions that it leads to the allegedly absurd conclusion that decapitated human
bodies may remain alive. In the second half of this chapter we discuss critically
the “higher brain” standard of death, espoused by some philosophers and bio-
ethicists, which makes loss of the capacity for consciousness the key to the
death of human beings.
Chapter 5 is devoted to a critical account of the application of circulatory and
respiratory criteria for determining death to vital organ donation following
withdrawal of life-sustaining treatment— a growing practice driven by the inad-
equate supply of organs from “brain dead” donors. Th is approach to determin-
ing death, only a very short interval aft er the donor’s heart has stopped beating,
founders by fudging the requirement that cessation of circulatory functioning
must be irreversible. Eff orts to establish the credibility for determination of
death in this context are found unconvincing.
A lthough the dead donor rule has been adopted as an ethical axiom, the
upshot of Chapters 3 and 5 is that “brain dead” donors remain alive and donors
declared dead according to circulatory–respiratory criteria are not known to be
dead at the time that their organs are procured. Either vital organ donation
must cease because it is seen as unethical, which would be a drastic outcome, or
an ethical justifi cation is needed that does not rely on the dead donor rule. Th e
critique of prevailing justifi catory accounts for current end-of-life practices in
preceding chapters paves the way for constructive approaches to justifying vital
organ donation in Chapters 6 and 7. In Chapter 6 we develop an account of the
ethics of vital organ donation from still-living donors contingent on valid plans
to withdraw life-sustaining treatment and consent. Under these circumstances,
donors are not harmed or wronged by organ procurement prior to stopping
treatment. We defend this ethical approach by taking up a series of challenging
objections. In Chapter 7, written with Seema Shah, J.D. (and based on Shah and
Miller 2010), we develop a pragmatic alternative justifi catory account based on
the concept of legal fi ctions. We analyze current practices of vital organ dona-
tion as based on unacknowledged legal fi ctions that underlie determinations of
death prior to organ procurement. As a way of approaching the ideal goal of
honest engagement with the legitimacy of vital organ donation from still-living
patients, we advocate making these legal fi ctions transparent by acknowledging
that death in the eyes of the law is not the same as death in fact according to a
biological defi nition.
We close the book with an epilogue, which briefl y sums up the project of
reconstructing medical ethics at the end of life.