The American Journal of Bioethics

In spite of ongoing academic debates about the ethics of organ transplantation and the meaning and moral significance of death, the dead donor rule (dd rule) is meant to reassure the public that living people will not be sacrificed or abused in order to promote the interests of others in need of organs. A growing chorus of critics of the dd rule have offered a variety of alternative approaches to amend current policy. Elysa R. Koppelman (2003) proposes an entirely new system focused on showing respect for the expressed wishes of individual donors. Her system would drop the dd rule and allow individuals in "suspended states" to predetermine whether they wished to be organ donors. As she admits, however, her skeletal proposal is not yet suited for current medical, ethical, and social conditions and perceptions (Robertson 1999). Although I agree with Koppelman that we should be open to new understandings of how individuals are allowed to donate organs based on their autonomous wishes, I will argue that this goal can be better facilitated by:

1. retaining the dd rule as a useful, but not absolute, moral marker; and

2. sharpening our understanding of "suspended states."

Koppelman argues that the moment death occurs is irrelevant to organ retrieval. What is relevant, she maintains, is "respect for donor rule." Moreover, Koppelman asserts that individuals who are either brain-dead or in a persistent vegetative state (PVS) be classified as in "suspended states." She then proposes a system of advance directives for organ procurement for persons in suspended states, in which a person's documented wishes regarding organ transplantation guide organ-donation decisions. She believes these proposals have the dual advantages of focusing on the patients' capacity to express autonomous wishes rather than their physiological state, and of expanding the potential range of organ donors by including individuals who need not be brain-dead.

One major weakness in Koppelman's analysis is the lack of a detailed description of "suspended states." Any analysis would show that brain death differs considerably from PVS. No doubt, both conditions create emotional stress and uncertainty for families. But PVS is far more problematic, because individuals in PVS can live for years, even decades, on artificial life support, whereas individuals who are brain-dead usually die within a week or two, despite artificial life support. This dramatically different clinical prognosis for PVS makes decision making for families of PVS patients far more difficult. For these and other reasons brain death is widely accepted, albeit with rare exceptions, as the end of human life. There is not presently a similar consensus of opinion and reaction regarding PVS.

Even if one were to lump together brain death and PVS and attempt to use advance directives as a way to follow the "respect for donor rule" to manage organ procurement, as Koppelman suggests, the evidence regarding advance directives suggests that our chances of broad public compliance are not good (Degenholtz et al. 2002; Beck et al. 2002; Kish Wallace et al. 2001). If Koppelman's system were adopted, it seems likely that the majority of individuals in suspended states—including those we now consider "brain-dead"—would not have advance directives. Consequently, according to Koppelman, organ- procurement teams would not be allowed to remove their organs. The net result would be that most individuals in suspended states could not be organ donors. We thus have every reason to believe that, if we adopt Koppelman's proposal, the actual number of donations would decline. Further exacerbating this decline is Koppleman's aversion to surrogacy. Families may currently act as surrogates for patients who are brain-dead. Koppleman, however, imposes a more stringent standard that precludes families from acting as surrogates for patients in suspended states—including what we would today call "brain death"—in the absence of an advance directive. Since many, if not most, organ donations today proceed with the blessing of families, Koppelman'...