Update on Non-Heart-Beating Organ Donation

Nancy Valko
Reproduced with Permission

On May 23, 2003, the St. Louis Review, the newspaper of the Archdiocese of St. Louis, published an editorial stating that "the NHBD (non-heart-beating organ donation) protocol is cruel and dangerous and does not meet standards of respect for human life" and called for an immediate moratorium on the practice at all St. Louis hospitals "until such time as clearer, objective moral standards of determination of death are enacted" (Click here to read this editorial).

Archdiocese of St. Louis Calls for Immediate Moratorium on Non-Heart-Beating Organ Donation

Reaction was swift and critical. In a page one article on the controversy1, the St. Louis Post-Dispatch cited transplant surgeons and others who defended NHBD as a way to increase organ donations by taking organs from patients who "have little brain activity and are in a vegetative state with no hope of recovery" and whose families decide to discontinue life support. Michael Panicola, vice president of ethics for the Catholic SSM Healthcare System, called NHBD "an opportunity for people to give the gift of life when they don't meet brain death criteria", the much-publicized previous requirement for organ donation.

A few days later the Post-Dispatch published a letter from James DuBois, PhD, a Catholic ethicist with St. Louis University's Center for Health Care Ethics, and a commentary from Ronald Munson, an ethicist with the University of Missouri-St. Louis.

DuBois, who has written several articles defending NHBD, argued that NHBD donors die of their underlying condition, not from the withdrawal of treatment or the organ donation itself. He also cited the "safety measure" of waiting "a full five minutes after death is declared before beginning organ procurement".

Ronald Munson, in his commentary, portrayed NHBD donors as "hospitalized, critically ill people who have expressed the wish to become donors when they die". Explaining the motive for dispensing with the previous brain death standard in organ donation, Munson admitted that "Waiting longer (than 5 minutes after the person's heart stops) -- to determine if the donors also satisfy brain-death criteria -- would result in the organs' deteriorating and becoming useless".

But suddenly, this important issue was quickly dropped.

This logically leads to the question: Are there some things about NHBD that the media or organ transplant organizations don't want you to know?

Brain Death and NHBD -- Important Distinction

For the past several years, a little-known but disturbing revolution has been occurring in organ donation. In the understandable but sometimes alarming zeal to obtain more organs, the procedure called non-heart-beating organ donation has been quietly added to brain death organ donation in more and more hospitals all over the country.

Although "brain dead" is a term many people erroneously associate with a coma-like condition or use to humorously describe an ignorant person, brain death is a legal and medical term that describes the irreversible loss of total brain function, even when the body can be kept going for a while using technology such as a ventilator. Since 1970, every state has added brain death to the legal and more familiar definition of death as the irreversible end of breathing and heartbeat. The addition of brain death as a legal definition of death revolutionized organ transplantation, because waiting until a person died naturally to harvest organs often resulted in organs too damaged for successful transplant. With brain death, organs could be taken before breathing and heartbeat stopped, and organ transplantation became commonplace. But when brain death did not meet the demand for organs, NHBD was invented in the 1990s as a way to obtain more organs.

NHBD is very different from brain death organ donation. While brain death organ donation means the person is legally dead but still has a heartbeat when organs are harvested, the potential NHBD patient is alive but termed "hopeless" or "vegetative" by a doctor, usually soon after suffering a devastating condition like a severe stroke or trauma and while still needing a ventilator to breathe. Because of the legal acceptance of the so-called "right to die", families or patients can then agree to have the ventilator turned off, a "do not resuscitate" order written and the organs harvested if or when the person's breathing and heartbeat stops.

In NHBD, the ventilator is usually stopped in an operating room while a doctor watches for up to one hour until the heartbeat and breathing stops. After an interval of usually just two to five minutes, the patient is declared dead and the transplant team takes over to harvest the organs. A determination of brain death is considered unnecessary even though Dr. Michael DeVita, one of the inventors of the NHBD protocol, has admitted, "the possibility of (brain function) recovery exists for at least 15 minutes". Nonetheless, Dr. Devita defends waiting only two minutes before harvesting the organs because, as he writes, "the 2-minute time span probably fits with the layperson's conception of how death ought to be determined"2 (emphasis added).

Just as disturbing, sometimes the NHBD patient will unexpectedly continue to breathe for longer than the one hour time limit for NHBD. The transplant is then cancelled but, rather than resuming care, the patient is just returned to his or her room to eventually die without treatment.

A Recent Example

The recent case of Jason Childress3 illustrates the lethal problems with this non-treatment plan. Jason is a young man who was severely brain-injured in a car accident and became the center of a "right to die" case in which the judge ordered the removal of his ventilator two months after his accident.

Against all predictions and because his tube feedings were not also stopped, Jason continued to breathe on his own. He is now showing signs of improvement and is receiving treatment. Ominously, the doctors' initial recommendation to withdraw the ventilator two days after his accident could have made him a prime candidate for NHBD, since it is possible he would have been too injured to breathe on his own so soon after his accident.

As I wrote in an article last year on the ethical implications of NHBD, the rush to declare patients "hopeless" or "vegetative" soon after illness or injury can deprive at least some patients of the chance of survival or even recovery.

Shockingly, NHBD protocols do not even necessarily require that the donor be mentally impaired at all. For example, one ethicist wrote about the case of a fully conscious man with ALS ("Lou Gehrig's disease") who decided to check himself into a hospital, have his ventilator removed and donate his organs under NHBD criteria. The ethicist wrote, "An operating room nurse reported feeling that the procedure was 'Kevorkian-like.'"4

Pressure for Organs Opens Pandora's Box

Even more pressure to increase the use of NHBD is apparently coming, even though the public has been kept largely in the dark about this new method of obtaining organs.

For example, last November, an advisory committee to the US Department of Health and Human Services recommended that, in the future, all hospitals should establish policies and procedures to "manage and maximize" NHBD and also be required to "notify organ procurement organizations prior to the withdrawal of life support to a patient, so as to determine that patient's potential for organ donation"5 (emphasis added).

Unknown to most of the public, hospitals are now already required to report every death to the local transplant organization even when tissue or organ donation is refused. If enacted, this new proposal could put further pressure on distraught families.

Ironically at the same time, new information is coming forward about these so-called "hopeless" patients who are considered potential NHBD candidates.

A September 2003 article in The New York Times featured Dr. Joseph T. Giacino and others who work with people who have had severe brain damage but who are now showing signs of "complex mental activity" -- even after months or years with little sign of consciousness.6 And, of course, there are many reported cases, even in the media, of brain-injured people who improve or even recover long after the doctors declared them hopeless.

Yet even this may not be enough for some ethicists, like Dr. Robert Truog, who recently proposed that "individuals who desire to donate their organs and who are either neurologically devastated or imminently dying should be allowed to donate their organs, without first being declared dead".7 In other words, Dr. Truog wants to eliminate even the controversial NHBD protocol in favor of just taking organs from incapacitated or dying patients while they are still very much alive.

Linking the so-called "right to die" with organ donation -- as NHBD does -- has truly opened Pandora's box. While organ donation can be a gift of life and a worthy goal, we must not allow the deaths of some people to be manipulated to obtain organs for others. The position of Cardinal-designate Justin Rigali and the Archdiocese of St. Louis regarding an immediate moratorium and re-evaluation of NHBD is eminently sensible and should be replicated nationwide.


1 "Archdiocese criticizes some organ retrievals" by Deborah L. Shelton. St. Louis Post-Dispatch, June 10, 2003 [Back]

2 "The Death Watch: Certifying Death Using Cardiac Criteria" by Michael A. DeVita, MD, University of Pittsburgh Medical Center, Pittsburgh, Pa. Prog Transplant 11(1):58-66, 2001. © 2001 North American Transplant Coordinators Organization [Back]

3 "Jason Childress Still Breathing, Receives Proper Medical Care" by Steve Ertelt, LifeNews.com editor, September 25, 2003. Available online at: http://prolife.org/bio58.html [Back]

4 "A Primer for Health Care Ethics" by Kevin O'Rourke, O.P., Georgetown Press, 2000. p. 182 [Back]

5 US Department of Health and Human Services Advisory Committee on Organ Transplantation, Recommendations to the Secretary, November 2002. Available online at: http://www.organdonor.gov/acotrecsbrief.html [Back]

6 "What if There is Something Going On in There?" by Carl Zimmer. The New York Times, 9/28/03. [Back]

7 "Role of brain death and the dead-donor rule in the ethics of organ transplantation" by Robert D. Truog, MD, FCCM; Walter M. Robinson, MD, MPH. Critical Care Medicine Journal, September, 2003. Critical Care Medicine 2003; 31(9):2391-2396 [Back]