By Lawrence Masek

Must organ transplant teams wait until a potential donor dies before removing a vital organ? I used to answer yes, because removing a vital organ from a living donor seemed intuitively wrong, and I assumed that anyone who answered no either accepted a consequentialist view of organ transplants or denied that potential donors near the end of life have the same moral status as other humans. I changed my mind after I accepted an invitation to participate in a panel discussion about the dead donor rule (DDR), which prohibits removing vital organs from living donors. I first planned to argue merely that the DDR has exceptions in the kind of cases that many philosophers enjoy analyzing, such as transplanting a liver from an organ thief back to the victim. As I prepared for the discussion, however, I thought about less fanciful cases, such as the following one, which combines elements from different cases in my article:

A woman is terminally ill and will die within a few days, so she has arranged a postmortem liver donation to her son. Her pain worsens, and the only available analgesic is a drug that would slow her respiration, which would cause her death. She is reluctant to take the drug because she is a Catholic who opposes euthanasia, so she consults the hospital ethicist, who explains that using a painkiller with the foreseen side-effect of causing death is accepted by both secular and Catholic opponents of euthanasia. The woman agrees and requests the drug. Her physician then notices another problem: the drug would damage the woman’s liver, making a transplant less likely to save her son. She requests the transplant as soon as possible, but the hospital ethicist says that performing the transplant before she dies would violate the DDR. The woman notes that she might die from her illness before the lack of liver, but the ethicist replies that transplant teams must follow the DDR to ensure that they do not kill the donor. The woman asks, “If it’s okay to kill me as a result of relieving my pain, why is it wrong to risk killing me as a result of saving my child?”

I found no good answer to the woman’s question when I read defenses of the DDR. Instead, I found that the principles used to support the DDR prohibit actions that seem unobjectionable or even praiseworthy:

The principle that physicians may not seriously and permanently harm a patient to benefit another person prohibits kidney transplants from living donors, which permanently leave the donor with only one kidney and reduced kidney function. The principle also prohibits fetal surgeries if the surgeries include uterine incisions that make vaginal deliveries impossible.

The principle that physicians may not fatally harm a patient to benefit another person prohibits c-sections that save the child but shorten the mother’s life, even if the mother requests the procedure and the only alternative is allowing both the mother and child to die. Further, this principle does not apply when removing the organ would not kill a dying patient.

The principle that physicians may not inflict a harm that would be fatal if something else did not kill the patient prohibits domino liver transplants, which would kill the older patient if the patient could survive for several decades.

A defender of the DDR could appeal to the principle of double effect and claim that the procedures noted above are examples of causing death or harm as a foreseen side-effect and that removing vital organs from a living donor is an example of intending to kill or harm the donor. I agree with the principle of double effect, but consider the following argument:

(1) What a person intends explains the person’s action (a principle of action theory that I defend in my article and other writings).

(2) That removing a vital organ kills or harms the donor does not always explain why a surgeon removes the organ.

Therefore, (3) a surgeon who removes a living donor’s vital organ does not always intend to kill or harm the donor.

This conclusion might seem counterintuitive, but I argue in my article that an alleged intuition about the surgeon’s intention is best understood as a moral intuition that the surgeon acts wrongly.

I now believe that the DDR depends on principles of ethics that are too strict, because they prohibit the procedures noted above, or on principles of action theory that are too broad, because they broaden intentions to include effects that do not explain the action. I do not make any policy recommendations, but I hope that people who agree that all humans have an equal moral status will develop policies that allow patients to donate vital organs in circumstances similar to those in which they may accept lethal palliative care.

Paper title: Non-consequentialist and egalitarian objections to the dead donor rule

Author: Lawrence J. Masek

Affiliations: Ohio Dominican University

Competing interests: none