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Medical Law - Organ Donation
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Comprehensive notes compiling lecture notes, textbook reading, case law summaries and further reading. Includes legal and ethical evaluation and critique.
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ORGAN DONATIONInitially organ transplantation was problematic because it was difficult to suppress the recipient’s immune system
(resulting in rejection) or because organs deteriorate rapidly as soon as a person’s cardiorespiratory system
stops working (if they even survived removal from the cadaver).
The first successful organ transplant was a live kidney transplant between identical twins which occurred in
Boston in 1954. Since the 1960s, techniques for maintaining the quality of organs before and during transplant
has improved, alongside immunosuppressant therapy to minimise rejection. Prognosis for transplant is now
extremely good.
Annual Activity Report 2018/19
NHS Blood and Transplant
4,990 lives potentially saved or improved by an organ transplant (fall of 2%)
6,077 patients still waiting for a transplant at the end of March 2019
400 patients died while on the active list waiting for their transplant and a further 777 were removed mainly
due to deteriorating health and subsequent ineligibility
Advancing technology enables people to live longer and avoid organ failure. There are insufficient organs to
meet demands however, and people can be on waiting lists for over a year with increasing mortality. This lack of
organs is a policy problem which drives debate for different systems and proposals – how can we tackle this
shortage ethically and efficiently?
CADAVERIC DONATION
Cadaveric organ donation depends upon dead donors whose organs are still capable of functioning in live
recipients. This means that;
o The organs can be removed only after somebody has died; and
o That they must be taken immediately after the diagnosis of death.
Accurately pinpointing the moment of death is therefore crucial. The problem with this is that death is a process
and often is not a sudden occurrence – a person’s organs do not all stop functioning simultaneously, rather they
fail progressively once the brain has irreversibly died.
Brain death itself involves two distinct changes;
1. Permanent loss of consciousness (death of the upper brain); and
2. Loss of the brain’s ability to regulate other bodily functions such as breathing (death of the lower brain).
Throughout the ages death has been constantly redefined. Centuries ago, a body was not considered dead until
putrefaction had begun. In the 19th century death was signalled by cessation of breathing and heartbeat. The
invention of the artificial ventilator made it necessary to decide whether a diagnosis of death could be made while
a person’s heart is being maintained artificially.
Continuing to ventilate a person who has been diagnosed as brain dead enables doctors to remove their organs
while their heart function is being artificially maintained. It is essential that these ‘heart beating donors’ have been
satisfactorily diagnosed as dead before their organs are taken. As Hans Jonas puts it, ‘the patient must be
absolutely sure that his doctor does not become his executioner’.
, Whilst there is no statutory definition of death in the UK, brain-stem death has come to the forefront as the
leading criterion since the 1970s. The Academy of Medical Royal Sciences Code of Practice (2008) defines
death as an irreversible loss of consciousness and capacity to breathe. The lack of statutory definition means
that death is a matter of clinical judgment.
The diagnosis of brain-stem death must be made by at least two senior registered medical practitioners, and to
avoid conflict of interest, neither of these should be a member of the transplant team.
It is difficult for the public to accept that a person whose heart is still beating, and who appears to be breathing,
albeit with medical assistance, is really dead. This is why many relatives struggle with organ retrieval before the
cessation of heart and lung function.
Brain Death – Too Flawed to Endure, Too Ingrained to Abandon
Robert D Truog
Administration of anaesthesia to brain dead patients for transplants sends out a confusing message.
Some argue that the brain death criteria is insufficient to be absolutely sure that patients are incapable of
experiencing pain and so should be ‘given the benefit of the doubt’ and receive anaesthesia.
Others argue that administration undermines the trust of the public and jeopardizes the organ transplantation
enterprise.
Rethinking Life and Death: The Collapse of Our Traditional Ethics
Peter Singer
The concept of brain death is a ‘convenient fiction’ which has nevertheless proved relatively uncontroversial.
‘Brain death’ is only for humans – isn’t it odd that death of a human requires something different to that of
any other living being?
The change in our conception that excluded these human beings from the moral community was one of the
first in a series of dramatic changes in our view of life and death.
Re-definition went through so smoothly because it did not harm the brain-dead patients and it benefited
everybody else.
An unquestioned assumption in the debate on the dead donor rule
Micael Nair-Collins
Discussions of the nature of death have been hindered by the need to treat organ transplantation as ‘nearly
sacrosanct’.
It is high time we took a more nuanced gaze at organ transplantation, and not assume that all other
concerns must yield before its practical requirements.
It is not deserving of the vaunted status it has been granted.
Death, Dying and Donation: Organ Transplantation and the diagnosis of death
Kerridge et al.
People who have been diagnosed as brain dead can have some bodily functions maintained artificially for
increasingly long periods of time. If brain-dead patients can ‘survive’ on a ventilator for several months then
are they really dead?
Idea of death has been complicated by advancing technology such as ventilation. Arguably technology can
replace most organs other than brain-stem activity.
Death, us and our bodies: personal reflections
Julian Savulescu
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