CCAR RESPONSA

5763.3

Hastening the Death of a Potential Organ Donor

She'elah

I serve on the board of the Mid-America Transplant Association. One of our committees is struggling with the issue of non-beating organ retrieval. This concerns someone who may not be technically brain dead but cannot live without life support. All concerned recognize that the person will most likely die and the family has given consent for organ donation. The issue concerns the massive amount of anti-coagulant that must be given to keep the organ viable for donation. Technically, the administration of this medicine (usually heparin) "kills" the person because it causes internal bleeding. I know that we are supposed to do nothing to hasten death. I also know that there is nothing holier than saving a life by donating an organ. (Rabbi Susan Talve, St. Louis, MO)

Teshuvah

This question, as our sho'elet correctly notes, arises out of our commitment to two fundamentalBand, in this case, perhaps conflicting Jewish ethical principles. The first principle is what we might call the sanctity or the inviolability of human life.[1] We are forbidden to take any action that shortens human life or hastens death, even in the case of the goses, one whose death is imminent. The goses is compared to a flickering candle; "the one who touches it and causes it to go out is guilty of bloodshed."[2] At the same time, we are commanded to preserve human life through the practice of medicine (refu'ah),[3] and the transplantation of human organs has become a major weapon in our struggle against life-threatening diseases. The critical shortage of organs available for transplantation is in large part responsible for creating the situation to which our she'elah alludes.[4] Our task here is to consider whether the desire to acquire organs, in the name of the preservation of life, has led to the adoption of measures that are in some way destructive of life and of our duty to preserve it.

1. The Medical Context.[5] Human organs destined for transplant can be retrieved from one of four sources: cadavers; live donors; donors who are brain dead but whose organs are maintained by life-support technology; and non-heart beating donors (NHBDs), that is, individuals whose deaths are determined by cessation of heart and respiratory function rather than loss of whole brain function. Our she'elah deals primarily with donors in this latter category, which in some ways marks a return to the "old" cardiorespiratory criteria of death that were superseded by the general acceptance in the medical profession of neurological criteria (brain death) as the determinative indicator that death has taken place.[6] The NHBD category was reintroduced in response to two perceived needs. The first of these was the growing shortage of organs available to meet the demand for transplantation. The second was the desire among some dying patients, usually acting through their surrogates, to donate their organs upon death. To meet these needs, the University of Pittsburgh Medical Center developed a set of guidelines, commonly referred to as the "Pittsburgh protocol," to allow for "planned" organ retrieval. In the hypothetical case, a patient or the patient's surrogates make a legal and ethical decision to withdraw life support. The patient is weaned from the ventilator and is simultaneously prepared ("prepped") for organ retrieval. The patient's pulse is monitored by a femoral catheter, and the heart's electrical activity is measured by electrocardiogram (EKG). When these show a total absence of a pulse and of cardiac activity for a period of two minutes, the patient is pronounced dead and organ retrieval may proceed. If the patient spontaneously resumes breathing after the removal of the ventilator, he or she is returned to the intensive care unit.

During this process, anticoagulant drugs such as heparin are administered to the donor a few minutes before the withdrawal of life support. This is done to prevent blood clots that would render the retrieved organs useless for transplantation. Our she'elah indicates that heparin "'kills' the person because it causes internal bleeding." This assertion, as far as we can determine, is unproven. According to a report by the Institute of Medicine, an arm of the National Academy of Science, heparin may cause internal bleeding if administered to some NHBDs, especially in large doses. The report therefore concludes that it is appropriate to use heparin for the purposes described here, provided that this decision is made on a case-by-case basis and that the drug is administered carefully, so as not to harm the patient or to hasten his or her death.[7] According to the information made available to us, standard medical practice restricts the dosage of heparin administered to NHBDs to the "safe" range, so that it does not harm the donor. Indeed, given that hemorrhagic organs would be useless for transplantation, physicians have no motivation for administering these drugs in doses large enough to kill the patient by causing internal bleeding.[8] In light of these findings, there is no Jewish ethical reason to prohibit the use of heparin or other anticoagulants in this situation, provided that the drugs are in fact administered so as not to shorten the life of the donor.

2. Non-Heart Beating Donors and The Criteria for Death. Beyond the specific concern of anticoagulant drugs, our she'elah raises a more general and troubling issue. The "Pittsburgh protocol" specifies that organs may be retrieved once Athe patient meets the cardiopulmonary criteria for death, i.e., the irreversible cessation of cardiopulmonary function,"[9] and it determines that "irreversible cessation" has occurred once the patient's pulse has stopped for a period of two minutes. To wait longer than two minutes would subject the internal organs to warm ischemia (damage caused by lack of blood flow) and possibly render them useless for transplantation. This presents a serious problem for those who accept neurological criteria (brain death) as the determinative indicator of death. Put starkly, "there are no clear empirical data proving that a patient who meets the Pittsburgh protocol's criteria for cardiopulmonary death, two minutes of pulselessness, also meets the neurological criteria for death, irreversible loss of all brain functions."[10] Indeed, since "no one would claim that two minutes of anoxia is sufficient evidence that the brain has ceased to function,"[11] a patient declared dead according to the Pittsburgh protocol may not in fact be brain dead at the time his or her organs are retrieved. We must therefore address the question: are the Pittsburgh protocol's criteria for death for non-heart beating organ donors acceptable according to our understanding of Jewish tradition?

The "classic" halakhic "definition" of death (that is, the set of criteria accepted by virtually all Jewish legal authorities prior to the late 1960s) is based upon cardiopulmonary indicators: death is established by the complete and irretrievable cessation of heartbeat and respiration.[12] This standard proceeds from Mishnah Yoma 8:6-7, which declares that the saving of life supersedes the laws of Shabbat even when it is not certain that an individual's life is in danger or, for that matter, that he is still alive.[13] Thus, when a building collapses upon an individual on the Sabbath, the halakhah permits all necessary labor to remove the debris so that it can be determined whether he is still alive. The Talmud (BT Yoma 85a) cites a dispute as to how we are to ascertain that fact: do we examine his heartbeat or his respiration? The major codes rule that the cessation of respiration is the determinative criterion for death.[14] This does not mean that heartbeat is an irrelevant factor; later poskim realized that the cardiac and respiratory functions are inextricably linked.[15] Thus, R. Moshe Sofer, the "Chatam Sofer" (18th-19th century Hungary), established a threefold set of criteria for death: "when a person lies still as a stone [i.e., absence of reflexes], with no discernible pulse, and then his respiration ceases, he is certainly dead."[16]

Yet alongside the Yoma passage, we find in the halakhic sources suggestions of a different "definition," namely that death is indicated by the cessation of neurological activity.[17] With the advent of the "Harvard criteria,"[18] which established testing protocols for determining that all neurological activity (including that of the brain stem) has ceased, some halakhists came to accept brain death as a proper indication of death according to Jewish law. This does not, in their view, contradict the cardiopulmonary standard as promulgated by Sofer: death is still indicated by the complete cessation of independent cardiac and respiratory activity. The difference is one of diagnostic technology. In Sofer's day, death could be determined solely by the actual measurement of heartbeat and respiration. Today, when the accepted tests can establish the cessation of all neurological activity, the patient may be declared dead, since "brain death is final and irreversible and there is no possibility that autonomous respiration will begin anew."[19] The fact that the organs of a brain-dead person are kept functioning by means of life support technology does not mean that the person is still alive, because with the cessation of neurological activity autonomous, independent heartbeat and respiration cannot be restored. Those Orthodox poskim who accept brain death as an adequate indicator of death have ruled in favor of heart and liver transplantation surgery, which require that these organs be retrieved from brain-dead donors.[20] This stance, however, remains controversial within the Orthodox world; most noted halakhists continue to insist on the literal application of the "Chatam Sofer" standard: death occurs only when heartbeat and respiration have irretrievably ceased.[21]

Liberal halakhic opinion,[22] including that of this Committee,[23] accepts the brain death standard as a proper criterion for death. Brain death, again, does not replace the "older," cardiopulmonary criteria; rather, it confirms them. Since the determination of brain death signals that the body has irretrievably lost its ability to maintain cardiopulmonary functions on an independent basis, the brain death standard satisfies the demands of both Jewish tradition and simple moral sense. When clinical tests establish beyond scientific doubt that brain activity has irretrievably ceased and that circulation and respiration are maintained solely through mechanical means, the patient is dead. It is then, and only then, that the body's organs may be removed for transplantation.

As we have seen, the Pittsburgh protocol standard does not meet the criteria for brain death. We should also note that it does not meet the Jewish standard of establishing death according to cardiopulmonary criteria. That standard, like the brain death standard, was meant to indicate that heartbeat and respiration have irreversibly ceased to function. Two minutes of pulselessness are not sufficient to meet this test: cardiopulmonary functions can return spontaneously or be restored through resuscitation during a much longer period, even up to ten minutes following asystole (cardiac arrest).[24] It may be, of course, that physicians and family members have no intention of resuscitating such a patient. That decision can be a proper one. As we have written, there are times when it is ethically permissible to withdraw most forms of medical treatment, to "allow nature to take its course" and to let the patient die without further "heroic" measures.[25] Yet such a decision does not indicate "irreversibility." The fact that pulse and respiration will not be restored through medical intervention does not prove that they cannot be restored. Until that latter point is reached, until it is clear that "there is no possibility that autonomous respiration will begin anew," we cannot certify that the cessation of heartbeat and respiration are in fact irreversible. It is for this reason that the brain death standard, which does testify to the irreversible cessation of autonomous heart and lung activity, meets the criteria for death as set forth in the sources of our Jewish tradition.

3. To Change the Criteria for Death? Why have some hospitals and clinics adopted the Pittsburgh protocol as a standard for determining the death of non-heart beating organ donors? Why have they abandoned the brain death standard, which is still recognized as the predominant criterion for establishing death?[26] The obvious, practical reason is the desire to increase the availability of organs for transplantation: "(T)he number of persons eligible to donate organs who die when heart and lung functions stop is believed to be much larger than the number who are pronounced 'brain dead' while on life support."[27] This desire, to be sure, is not evidence of evil intent. The goal of organ transplantation, after all, is to save human life, to fulfill the mitzvah of pikuach nefesh. The donors (or their surrogates) have consented in advance to this procedure: they have asked to be removed from life support and have permitted the removal of the needed organs from their bodies. Nor is the acceptance of the Pittsburgh protocol necessarily an act of cynical manipulation, the altering of the definition of death in order to serve our own purposes, however exalted. As some ethicists argue,[28] "death" is not a biological event that can be defined by medical criteria. All that science can do is to identify specific clinical situations, such as the irreversible cessation of heartbeat or of brain activity. The decision to regard those situations as evidence of "death" is a legal or moral decision, arrived at through discussion among scientists, practitioners, and the community as a whole. Death "happens," in other words, at a point in the clinical situation that is morally, sociologically, and anthropologically acceptable. Why then is it wrong or immoral to declare death at a moment which is consistent with the retrieval of vital organs? Such thinking may have motivated the acceptance of the brain death standard several decades ago,[29] and such thinking lies behind the Pittsburgh protocol and other current proposals to accept alternative criteria for death (for example, higher-brain death or a diagnosis of permanent vegetative state) so as to increase the availability of organs for transplantation.[30]

With all this in mind, should we Reform Jews, who honor our Jewish tradition but who are open to new ways of thinking about our moral responsibilities, reconsider our own criteria for death? Should we abandon the traditional Jewish standards in favor of a new definition that, like the Pittsburgh protocol, would facilitate the retrieval of more human organs for transplantation?

We oppose such a step. We do so out of our commitment to the principle with which we began this teshuvah: the sanctity of human life. Any discussion of a Jewish approach to the determination of death must proceed from that fundamental affirmation. To perceive human life as "sacred," in Jewish terms, is to hold it inviolate: as the ultimate possession of the God who has created it and given it to us, human life may never be taken or shortened save for those circumstances under which the Torah permits or mandates that outcome.[31] For this reason, although we are not obligated to delay a terminal patient's impending death through the employment of therapeutically useless measures, we are forbidden to practice active euthanasia or assisted suicide, to hasten the death of that patient. The fact that there is nothing physicians can do to save the life of this patient does not entitle us to kill him or her, even out of compassion and Bimportantly for our she'elahBeven when it would benefit others were we to do so.[32] It makes no difference that the patients or their surrogates have consented to them. The sanctity of life precludes suicide just as it forbids homicide.[33] The act, however benign or beneficent, remains an act of killing.

Since our tradition regards human life as sacred, it bids us to do everything we can to save life and to heal the sick. By that same token, however, because all human lives are equally sacred, it does not and cannot permit us to save the life of one person by shortening the life of another.[34] Yes, we have accepted "new criteria for death (the brain-death standard) that justify the retrieval of human organs from donors whose hearts are still beating. Yet as we have written, the neurological criteria did not represent a change but rather a reliable alternative indicator that the traditional Jewish standard for death (the complete and irreversible cessation of autonomous heartbeat and respiration) had been met. A brain dead person is, by Jewish criteria, dead. By contrast, a medical institution that implements the Pittsburgh protocol or some of the other "alternative" criteria for death is retrieving organs from persons who, in the eyes of Jewish tradition, are likely still alive. That is a difference that makes all the difference in the world. The prospect of killing NHBDs may not trouble those who do not share the Jewish conception of the sanctity of human life. But those of us who do, who participate in a tradition that regards human life as inviolate and beyond our power to destroy even for beneficial purposes, find it a chilling thought indeed.

Conclusion

. The administration of anticoagulant drugs to a non-heart beating organ donor is permissible so long as it is done so as not to harm the patient or hasten his or her death. Organ retrieval is permissible when, but not before, the patient is declared to be brain dead.

NOTES

 

1:1: "the goses is considered a living person in all respects"; Rambam, Yad, Avel 4:5; Shulchan Arukh Yore De`ah 339:1.

, no. 338.

(CARR), no. 78 (http://www.ccarnet.org/cgi-bin/respdisp.pl?file=78&year=carr ); R. Walter Jacob, Questions and Reform Jewish Answers (QRJA), no. 156 (http://www.ccarnet.org/cgi-bin/respdisp.pl?file=156&year=narr ).

 

If needed, please consult Abbreviations used in CCAR Responsa.