Killing by organ procurement: brain-based death and legal fictions

Abstract

The dead donor rule (DDR) governs procuring life-prolonging organs. They should be taken only from deceased donors. Miller and Truog have proposed abandoning the rule when patients have decided to forgo life-sustaining treatment and have consented to procurement. Organs could then be procured from living patients, thus killing them by organ procurement. This proposal warrants careful examination. They convincingly argue that current brain or circulatory death pronouncement misidentifies the biologically dead. After arguing convincingly that physicians already cause death by withdrawing treatment, they claim no bright-line differences preclude organ removal from the living. The argument fails for those who accept the double effect doctrine or other grounds for distinguishing forgoing life support from active, intentional killing. If the goal is determining irreversible loss of somatic function, they correctly label current death pronouncement a "legal fiction." Recognizing a second, public policy meaning of the term death provides grounds for maintaining the DDR without jeopardizing procurement.

Keywords: dead donor rule; legal fiction; organ procurement; whole-brain death.