The distinction between the "permanent" (will not reverse) and "irreversible" (cannot reverse) cessation of functions is critical to understand the meaning of a determination of death using circulatory-respiratory tests. Physicians determining death test only for the permanent cessation of circulation and respiration because they know that irreversible cessation follows rapidly and inevitably once circulation no longer will restore itself spontaneously and will not be restored medically. Although most statutes of death stipulate irreversible cessation of circulatory and respiratory functions, the accepted medical standard is their permanent cessation because permanence is a perfect surrogate indicator for irreversibility, and using it permits a more timely declaration. Therefore, patients properly declared dead in donation after circulatory death (DCD) protocols satisfy the requirements of death statutes and do not violate the dead donor rule. The acronym DCD should represent organ "donation after circulatory death" to clarify that the death standard is the permanent cessation of circulation, not heartbeat. Heart donation in DCD does not retroactively negate the donor's death determination because circulation has ceased permanently.

How the Distinction between “Irreversible” and “Permanent” Illuminates Circulatory–Respiratory Death Determination

Transplantation of vital organs has been premised ethically and legally on "the dead donor rule" (DDR)-the requirement that donors are determined to be dead before these organs are procured. Nevertheless, scholars have argued cogently that donors of vital organs, including those diagnosed as "brain dead" and those declared dead according to cardiopulmonary criteria, are not in fact dead at the time that vital organs are being procured. In this article, we challenge the normative rationale for the DDR by rejecting the underlying premise that it is necessarily wrong for physicians to cause the death of patients and the claim that abandoning this rule would exploit vulnerable patients. We contend that it is ethical to procure vital organs from living patients sustained on life support prior to treatment withdrawal, provided that there is valid consent for both withdrawing treatment and organ donation. However, the conservatism of medical ethics and practical concerns make it doubtful that the DDR will be abandoned in the near future. This leaves the current practice of organ transplantation based on the "moral fiction" that donors are dead when vital organs are procured.

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The dead donor rule: can it withstand critical scrutiny?

Terminal illness and the prospect of a painful and protracted dying process created new medical realities for Western culture in recent decades. Patients challenged traditional medical canons against medical killing by requesting changes in laws to allow physician assistance with suicide (PAS). This challenge occurred within a broader cultural context where core principles of medical common morality (beneficence, patient autonomy, and justice) were questioned. A new study of medical killing is warranted because ethical changes are occurring in current issues surrounding doctors and patients (for example, humanism and autonomy, rights, justice, and the morality of medical killing). Furthermore PAS proponents argue that sometimes there is a moral obligation for beneficent medicine to allay suffering; that is, a doctor must kill or assist his patient’s suicide. This thesis explores the possible influence that John Stuart Mill’s 
hedonistic-utilitarianism (HU) exerts on one aspect of medical killing, the philosophy and practice of PAS. This study clarifies certain features of the PAS debate and demonstrates weaknesses inherent in HU that impact adversely on medical canons and doctor-patient relationships (DPR). Six features within the PAS debate are examined for HU influence. Chapter 1 delineates how Mill’s key utilitarian pleasure-is-happiness (PH) theme interacts with the topic of PAS in contemporary medico-cultural discussions. Chapter 2 surveys some epochal events in the development of rights, justice, and medical killing, while chapter 3 surveys similarly autonomy, physician paternalism, and sanctity of life (SL)~all in relationship to PAS. The final chapter isolates key HU weaknesses found in PAS arguments and offers moral concerns regarding the utilisation of HU claims to justify changing traditional medical canons to endorse PAS. The thesis contributes to the ongoing medical-ethical dialogue about medical killing by exploring the historical and ethical points crucial to future discussions of medical killing.

An ethical study of the impact hedonistic-utilitarianism exerts on the philosophy and practice of physician-assisted suicide

The dead donor rule (DDR) governs procuring life-prolonging organs. They should be taken only from deceased donors. Miller and Truog have proposed abandoning the rule when patients have decided to forgo life-sustaining treatment and have consented to procurement. Organs could then be procured from living patients, thus killing them by organ procurement. This proposal warrants careful examination. They convincingly argue that current brain or circulatory death pronouncement misidentifies the biologically dead. After arguing convincingly that physicians already cause death by withdrawing treatment, they claim no bright-line differences preclude organ removal from the living. The argument fails for those who accept the double effect doctrine or other grounds for distinguishing forgoing life support from active, intentional killing. If the goal is determining irreversible loss of somatic function, they correctly label current death pronouncement a "legal fiction." Recognizing a second, public policy meaning of the term death provides grounds for maintaining the DDR without jeopardizing procurement.

Killing by organ procurement: brain-based death and legal fictions.

Expressing doubts about death criteria can serve healthy purposes, but can also cause a number of harms, including decreased organ donation rates and distress for donor families and health care staff. This paper explores the various causes of doubts about death criteria-including religious beliefs, misinformation, mistrust, and intellectual questions-and recommends responses to each of these. Some recommended responses are relatively simple and noncontroversial, such as providing accurate information. However, other responses would require significant changes to the way we currently do business. Policymakers should establish minimum national standards for determining death to foster a trustworthy system; academics and publishers have a duty to publish only materials that substantially engage and advance the debate to minimize the harm caused by divided expert opinion; and opposition to the dead donor rule should be conceptually separated from doubts about death criteria.

The Ethics of Creating and Responding to Doubts about Death Criteria

It is not difficult to compose a brief summary of the Supreme Court's assisted suicide decisions that would be suitable for bar review study guides and law student outlines: With no dissenters, the Court overturned the decisions of the Second and Ninth Circuit Courts that conferred Fourteenth Amendment protection upon the choice of competent, terminally ill adults to end their own lives with medication prescribed by their physicians. (1) Holding that the Constitution does not protect a right to commit suicide that itself entails a right to assistance in committing the act, the majority opinions relegate assisted suicide and euthanasia to the "laboratory of the states." (2) However, the decisions leave open the ill-defined possibility that the Court might revisit the issue, particularly if presented with a more narrowly focused claim than the one vindicated by the two circuit courts. Such a description would probably enable recent law school graduates correctly to answer a multiple choice bar exam question on "whether there is a constitutional right to die." But grasping their "bottom line" is not the same as grappling with the power of the two decisions to shape our society's ongoing debate about the neuralgic ethical and legal questions entangled in end-of-life decisionmaking. As legal theorist and literary critic James Boyd White has taught us, courts do not simply issue abstract judgments that impersonally and mechanically guide the behavior of individual and institutional agents in our society. According to White, those who play a role in the legal enterprise are engaged in a type of "constitutive rhetoric" that actually helps shape the moral identity of the community in which they participate. The community-constituting character of law does not inhere solely in the results that issue in particular cases, but also in the very way the questions are framed for decision. A lawyer arguing a client's position, and a fartiori a judge rendering an opinion, "is always saying not only 'Here is how this case should be decided,' but also 'Here--in this language--is the way this case and similar cases should be talked about. The language I am speaking is the proper language of justice in our culture.'" (3) Assuming that White is correct, if we are to understand the full import of the Supreme Court decisions on assisted suicide, we cannot fix our gaze solely on the conclusions they reach. We must also scrutinize the way the justices frame the issues at stake, the communal hopes and fears they invoke, the modes of argument they find persuasive and those that they discount, and the particular words and phrases through which they convey all of those things. By exercising the authority to interpret the constitutive document of our nation that has ultimately rested in their hands since the Court decided Marbury v. Madison in 1803, the justices inevitably wield a tremendous power of moral formation. In effect, they are moral teachers who help to shape the character of our nation. White reminds us that the "habit of regarding law as the instrument by which 'we' effectuate 'our policies' and get what 'we want' is wholly inadequate. It is the true nature of law to constitute a 'we' and to establish a conversation by which that 'we' can determine what our 'wants' are and should be" (p. 42). How, then, do the opinions in Glucksberg (4) and Quill (5) refocus the discussion regarding our communal obligations to the persons in our midst who are confronting the momentous and often terrifying task of relinquishing their earthly existence? In what follows, I would like to examine three issues on which these decisions are likely to exert significant pedagogical influence: (1) the tension between general rules or classifications and the particular needs of individuals; (2) the relationship among pain, dignity, and equality; and (3) the limits of philosophical theory and the importance of practical experience. Equality, Rules, and Exceptions The opinion of the Court in Glucksberg communicates its most significant moral lesson in the way that it frames the legal claim at stake. …

M. Cathleen Kaveny

Papers

Assisted Suicide, the Supreme Court, and the Constitutive Function of the Law