Let’s Not Get Rid of the Dead Donor Rule

By Sara Buscher, Attorney, Past Chair, EPC USA 

The Dead Donor Rule requires that a person to have died before organs can be harvested for transplant. 

EPC supports the dead donor rule and we recognize that the Dead Donor Rule will prevent the approval of euthanasia by organ donation. In a recent Tulane University Medical School lecture, Law Professor Thaddeus Pope said violations of the dead donor rule are rampant.

Brain death was created in 1968 as a workaround to the Dead Donor Rule to generate more transplant organs and free up ICU beds. It eventually became legal in the 1980’s through adoption of the Uniform Determination of Death Act (UDDA) by countries and the each US state.

The latest effort to legitimize harvesting organs from living people suffered a set back when the Uniform Law Commission chose to stop its effort to revise the UDDA. The revision to the UDDA was designed to give legal cover to all the ways in which organs are being taken from living persons. Professor Pope attributes the shortage of organs to fewer car accident deaths. He also expressed concern that people who support the Dead Donor Rule could demand more accountability and enforcement of existing laws. I would say disability groups could also demand more accountability and enforcement.

Before continuing this report on the lecture, I want our readers to know that some of the people whose organs are being harvested could recover, if given enough time, and doctors cannot predict which ones will recover. People are declared brain dead, on average, in 4 days, but it takes about 2 weeks for a coma to resolve and 3 to12 months after injury to recover consciousness. According to a recent study:

“Predicting who will recover following severe traumatic brain injury, and to what degree, can be challenging. Yet, families are often asked to make decisions about continuing or withdrawing life support, such as mechanical breathing, within just 72 hours of the injury” 

The same study found 40% of those whose life support was not withdrawn recovered at least some independence. According to a federal fact sheet, people who are in a state of permanent unconsciousness (coma) survive 60% to 80% of the time; coming out of the coma within 4 weeks, usually moving to a vegetative state or partial consciousness and slowly continuing to improve. For those whose condition was caused by a physical impact, 60% to 90% will regain consciousness by 1 year after injury.

The Uniform Determination of Death Act says:

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. A determination of death must be made in accordance with accepted medical standards.

Professor Pope says there are four ways the Dead Donor Rule and UDDA are being violated. About two-thirds involve brain death and one-third cardiac death.

1. Brain Death. People are being labelled brain dead even though parts of the brain are still functioning and their condition may be reversible. There is “massive variability” in how brain “death” is determined, from state to state, hospital to hospital and doctor to doctor.
2. Donation by Cardiac Death (DCD). Here organs are being taken before there is certainty heart stoppage is irreversible. When life support is stopped, the transplant team waits for the heart to stop before harvesting organs. Research shows the heart could restart on its own within 5 minutes, but some teams are waiting only 2 minutes for the first incision. Organs obtained this way may be slow to start after transplant due to oxygen deprivation before being harvested.
3. Normothermic Regional Profusion (NRP). After the person’s heart stops and does not restart during the waiting period for cardiac death, the person is attached to a heart-lung machine. Before turning it on to circulate oxygenated blood, arteries to the brain are clamped off. Then, organs are harvested. This method minimizes the time transplantable organs are deprived of oxygen.
4. Premortem Interventions. The family of a patient on life support is told the patient has died and what they view as life support is really organ support. The living person is then turned over to the transplant team.

To solve the problem of rampant dead donor rule violations, Professor Pope says the UDDA should be changed. As already stated, a four year effort to do this within the Uniform Law Commission failed in 2023. A few months ago Professor Pope called for a new federal revised UDDA that would override state UDDA statutes. He is now calling for changing public opinion to allow families to agree to organ harvesting for people who are nearly dead. This could also be done by an advance directive. He pointed to a national public opinion survey about death and organ donations.

The national public opinion survey supports organ donation from nearly dead people, but is flawed. Respondents were asked questions about the following vignette.

Jason has been in a very bad car accident. He suffered a severe head injury and is now in the hospital. As a result of the injury, Jason is completely unconscious. He cannot hear or feel anything, cannot remember or think about anything, he is not aware of anything, and his condition is irreversible. Jason will never wake up. He also cannot breathe without mechanical support, but is on a breathing machine that keeps his lungs working. Without the machine, Jason's heart and all other organs would stop within minutes. Although he will never wake up and cannot breathe without the support of the machine, Jason is still biologically alive. Before the injury, Jason wanted to be an organ donor. The organs will function best if they are removed while Jason's heart is still beating and while he is still on the breathing machine. If the organs are removed while Jason is still on the machine, he would die from the removal of organs (in other words, the surgery would cause Jason's biological death).

The vignette says the doctors know Jason will never improve or recover, yet this cannot be predicted as indicated earlier. Other problems with the survey include the respondents were self-selected and tended to be in categories that would be more supportive such as more liberal and less conservative than the general population.

We have a better idea. Let's not get rid of the Dead Donor Rule.

More articles on this topic:

• No to killing for organs (Link).
• Organ donation procedure violates the Dead Donor Rule (Link).
• Proposed changes to the UDDA will cause more litigation (Link). 
• Are people who are declared brain dead always dead? (Link).