Norman Fost, Reconsidering the Dead Donor Rule: Is it Important that Organ Donors be Dead?

Issues in Law & Medicine, Spring, 2005 by Norman Fost

Norman Fost, Reconsidering the Dead Donor Rule: Is it Important that Organ Donors Be Dead? 14 KENNEDY INST. ETHICS J. 249 (2004).

The "dead donor rule" is increasingly under attack for several reasons. First, there has long been a disagreement about whether there is a correct or coherent definition of "death." Second, it has long been clear that the concept and ascertainment of "brain death" is medically flawed. Third, the requirement stands in the way of improving organ supply by prohibiting organ removal from patients who have little to lose--e.g., infants with anencephaly--and from patients who ardently want to donate while still alive--e.g., patients in a permanent vegetative state. One argument against abandoning the dead donor rule has been that the rule is important to the general public. There is now data suggesting that this assumption also may be flawed. These findings add additional weight to proposals to abandon the dead donor rule so that organ supply may be expanded in a way that is consistent with traditional notions of ethics, law, public policy, and public opinion.