The Ethics of Transplantation

Such was the case when the spring 2016 event featured ethical considerations of transplantation, including historical and emerging controversies about organ donations from living donors and those nearing the end of life.

Describing the urgent need for organ donations, Robert Veatch, PhD, professor emeritus of medical ethics and senior research scholar, Kennedy Institute of Ethics, Georgetown University, said, “As of this morning, there were 120,999 people in the United States waiting for organ transplants.”

Susan Lederer, PhD ’87, Robert Turell Professor of History of Medicine and Bioethics and chair, University of Wisconsin School of Medicine and Public Health Department of Medical History and Bioethics, noted that dramatic historical developments in techniques spurred tremendous enthusiasm among surgeons and patients for transplants.

“But they immediately confronted the supply problem,” she said. “They wanted to supplant new organs for old, but they had not figured out where and under what circumstances they would get those organs.”

Josh Mezrich, MD, associate professor, Department of Surgery, added, “In the 1960s, surgeons were transplanting kidneys, but the outcomes were marginal because they didn’t have the right medications. There was less concern about taking kidneys than taking a heart, because removing a kidney would not cause someone’s death.”

Early heart transplants also had terrible outcomes. Recipients often died from rejection or poor heart function within weeks. Many people considered the heart like the soul and viewed procurements that way. The biggest controversies related to donations.

In 1968, Richard Lower, MD, was charged with murder for removing a heart from an African-American patient who had fallen and hit his head, and had been deemed to be in an irreversible coma.

Neurosurgeons tried to save the patient’s life but determined that he wouldn’t survive.

“Lower apparently called the police to find the man’s family for consent because he had a patient ready to go, and they wanted to use the man’s heart,” Mezrich said. “They couldn’t find the family — and it’s unclear if they tried very hard, because within 24 hours, they had him in the operating room to do the transplant.”

The neurologist noted in the chart that the patient was unrecoverable, and he disconnected the patient’s ventilator for five minutes. The note didn’t mention his heart stopping or why the neurologist made that choice, but surgeons did the transplant.

“Later that night, the donor’s brother came to the hospital asking what happened to his brother,” said Mezrich. “It turns out the donor had a family. Lower was sued and charged for accelerating the man’s death.”

Mezrich said, “Lower ended up winning the trial, partially because, in between the procurement and trial, the definition of brain death was established. But it is clear that confusion or differences of opinion about what constitutes death can lead to controversy in obtaining donor organs.”

In 1968, a Harvard ad hoc committee discussed criteria for irreversible coma and brain death; it published in the Journal of the American Medical Association controversial conclusions aimed at defining irreversible coma as a new criterion for death.

“Despite the controversy, only about 2 percent of patients become brain dead, so the other way we do organ donation is donation after cardiac death (DCD), when families decide to withdraw support,” said Mezrich. “The family comes into the operating room with the physician, who will withdraw support. If the patient dies fairly quickly, surgeons can procure the organs.”

Studies about DCD show that fewer organs are recovered and many organs don’t do as well as other types of donations.

“An increasing number of physicians and ethicists think it’s time to get rid of the dead-donor rule,” said Norman Fost, MD, MPH, professor emeritus, Departments of Pediatrics and Medical History and Bioethics. “The primary reasons for redefining death 40 years ago were based on false claims. It is a major contributor to the imbalance between organ demand and supply. Revising the rule would prevent many avoidable deaths [among recipients]; save many from undergoing dialysis, which is much more expensive than transplantation; and respect donors’ and donor families’ preferences.”

Mezrich pointed out that families get incredible satisfaction when they donate their loved ones’ organs.

“They hang on every word we say, and they want to learn as much as possible about the process and recipients. Many of them will say things like, ‘This has been such a tragedy, but I don’t know what I would do without the chance to donate,’” he said.

Still, some patients may not have the opportunity to donate. A man, referred to as “W.B.,” came to Mezrich years ago with the hope of being a living donor. W.B. had amyotrophic lateral sclerosis (ALS) and wanted something meaningful to come of his death. Mezrich evaluated him and was impressed by his courage. W.B. had been avoiding medications he thought might be hard on his organs so he could donate them.

“I ultimately said ‘no.’ I may regret it now, and some may disagree, but my thought was that living donors are supposed to be healthy. The goal is to give [the donor] the same [quality of] life he or she would have had,” Mezrich recalled. “To me, W.B. wasn’t healthy and still had a lot of positive things in his life. I was concerned that surgery could take away some of those things.”

W.B. told Mezrich to stay in touch and do his homework because he still wanted to donate. University Hospital’s Ethics Committee and leaders generally supported W.B.’s plan to donate, but a legal analysis concluded that if W.B. donated organs and died as a result, a physician could be charged with accelerating his death.

“The hospital advised me not to do the surgery, which is smart because I don’t want to go to jail,” said Mezrich. “But early pioneers in transplant believed in what they were doing so much that they would push forward and see what happened.”

Mezrich and Joseph Scalea, MD, a UW Health transplant surgery fellow, wrote about W.B.’s story in an April 2015 article, titled “As They Lay Dying,” in The Atlantic.

In June 2016, W.B. passed away without the opportunity to donate his organs.

Throughout the Bioethics Symposium, speakers posed many questions: After life support is removed, what does “dead” mean? Do surgeons wait 5 or 10 minutes? Does the heart need to stop? At what point is a patient brain dead?

Veatch noted, “The brain-death debate is clouded by controversy. It could be that irreversible loss of circulation is an alternative definition of death that some, including a minority of religious adherence, may affirm.”

Fost asked, “How do we know when someone is truly dead? We don’t. It’s a religious and philosophical question with no right answer. We need a policy on organ removal that is morally defensible, avoids legal difficulty and is acceptable to the public.”

Two speakers — Sally Satel, MD, resident scholar, American Enterprise Institute for Public Policy Research, and lecturer, Yale University, and Samuel Kerstein, PhD, professor of philosophy, University of Maryland — described controversies related to kidney donors who are alive and healthy.

Satel said she supports future exploration related to compensating living kidney donors.

“I am not arguing for a free-market exchange, but I am arguing for the legal capacity to be able to reward people who are willing to save someone’s life,” said Satel, adding that this is now illegal.

She and Kerstein disagreed on many points about market exchange of kidneys from living donors. They also outlined numerous safeguards needed in any such scenario. Kerstein said ethical problems could arise even in well-regulated markets.

In closing, he shared the idea that society could adopt an opt-out system for cadaveric organ donors and cited statistics from a study that shows countries with opt-out systems have approximately 25 percent higher average cadaveric donation rates compared to other countries.

“This has raised the number of available options,” Kerstein noted. All told, having options and looking at all angles is what it will take to find solutions.