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The Nasty Side of Organ Transplanting.

Chapter 5

Battle for the Body

The fight between relatives and harvesters over the dead body begins with who gets in first. The person lawfully in possession of the body can authorise the excision of organs and other parts. But who has actual legal possession? In the first instance it is hospital staff. Next of kin can sometimes gain possession by entering the hospital and legally taking possession of the body. In some countries, like the United Kingdom, the body remains legally in the possession of the hospital, while it is located therein. This makes it more difficult for next of kin to obtain the body for cremation or burial, or to prevent harvesting.^[39]

Generally, in other countries, to gain possession one doesn’t punch out the doctors and grab the body. Possession simply requires stating one’s next of kin status: mum, dad, child, spouse, etc and ordering directions regarding the body.^[40] The hospital will send the body to the funeral parlour of your choice or, with your permission, consider it for harvesting. They may claim the body is theirs for harvesting but when push comes to shove the hospital will back down to avoid scandal.

They may also request consent for a post-mortem to examine cause of death, which may be a ploy to remove parts especially if the autopsy consent form contains a tiny clause that authorises body parts donation. You can refuse this autopsy unless death has been sudden, unexpected or mysterious. In these circumstances the Coroner can order a compulsory Coronial post-mortem though this is relatively rare and may occur days later in a separate building. You can insist at this autopsy that no parts be removed for transplant or other purposes. Some Coroners act strictly, as researchers trying to discover the reason for death while others are sneak thieves acting on behalf of the harvesters or medical schools.

Human Rights of the Heart-Beating Dead

The question of human rights for “brain dead” patients has never been fully determined by Australian courts. It is generally believed the corpse has no rights and that being “brain dead” is identical to being a corpse. It is under control of those in possession of it. As stated above hospital staff initially retain control until next of kin or the person with designated power of attorney can be located. If neither party can be contacted within a reasonable amount of time the hospital can decide if the patient is harvested despite not having registered as a donor. The hospital merely needs to say they have no reason to believe the patient was against organ donation. Australian transplant legislation rarely specifies what a reasonable period of time is though the 1964 Tasmanian legislation considered it six hours and this was before mobile phones were invented. In parts of the USA it is a more generous 24 hours.

Transplant coordinators or hospital intensive care staff may jump the gun and persuade grieving relatives to sign consent forms prior to the second “brain death” determination.

Different Versions of “Brain Death"

The procedures used to determine “brain death” vary from country to country. The Japanese require loss of blood pressure to determine “brain death” because the brain stem regulates blood pressure. Normal blood pressure indicates a functioning brain stem and therefore a patient is not considered “brain dead”. The United Kingdom rules are different and the same patient considered alive in Japan will be declared “brain dead” and harvested in the UK.

Electroencephalography (EEG)

Electroencephalography (EEG) tests are required in parts of the United States, and some European countries. An EEG displays electrical activity in the brain, evidence which indicates life therein. Spain requires two electroencephalograms twelve hours apart for adults and twenty-four hours for children. Two tests separated by time is protection against an initial mistake and the fact that electrocerebral silence may be temporary.

This careful Spanish approach contrasts with Australian practice where a person can be harvested within twenty-four hours of presenting at a public hospital so there often isn’t time for a second EEG.

But that doesn’t bother many doctors in Australian hospitals who avoid electroencephalography altogether, claiming it is unreliable and that flickers of electrical activity may be from a decomposing dead brain. Another argument is that an EEG may indicate brain life but that fact is irrelevant. Why? Because it does not affect the prognosis, i.e. because the presence of residual EEG activity does not alter the forecast of death - the final cessation of the heartbeat despite continuing mechanical ventilation - within a few hours or days. So, they rationalise, organ donation might as well begin while the still beating heart perfuses the organs with oxygenated blood. This utilitarian view ignores the uncomfortable fact that we do not know very much about how the brain works and have no means of knowing what persisting EEG activity may be trying to tell us about continuing brain function at some level - even, perhaps, about the persistence of something akin to consciousness (however defined) in some rudimentary form in some remote, untestable, part of that most complex and truly wonderful organ.

One unarguable truth in this debate is that medical experts around the world use a wide variety of techniques to diagnose and certify death on “brain death” criteria. This is not surprising in view of the fact that they can't even agree on what it means to say that a person is dead when his blood is still circulating and his bodily systems are still working, although his brain is so badly damaged that he is almost certain to die - in the commonly understood sense - within a very short time.

Less technological societies determine death differently. They initially consider death as loss of heart beat but keep the body safe for a few days. Their religion may provide rituals to allow the spirit to ascend but for practical purposes it keeps the body safe until the odour of decomposition becomes apparent. The stench indicates the person is really dead.

Some nations don’t consider medical “brain death” criteria valid. Pakistan and Romania don’t recognise “brain death” saying the person is still alive. Most Jews don't recognise “brain death” thus organ donation is rare in Israel. Thailand doesn’t accept the concepts of “whole brain death” or “brain stem death”. Harvesters cutting organs from bodies with beating hearts are charged with murder, which carries a death penalty.

Donation after the Heart Stops Beating

The irony is that viable kidneys are still obtained from donors whose hearts have stopped. “Brain dead” donation is extremely rare in Japan so they remove kidneys from “cardiac dead” people. Graft survival rate is slightly lower at 84.2% at one year and 72.7% at five years. Spain also gets good results from “cardiac dead” donors, even when brought to the hospital already dead.^[41] Australia also removes kidneys from “cardiac dead” donors, but hasn't announced this in case someone asks, well, aren't kidneys already removed from dead people.^[42]The Canadian Council for Donation and Transplantation are currently developing protocols for removing kidneys from donors after the cessation of heartbeat.^[43]It is doubtful this will dent waiting lists due to the difficulty of obtaining consent and the controversy over killing the donor prior to even the flimsy “brain dead” test. (see Chapter 10)

Lungs are harvested from donors in Sweden whose hearts have stopped for one hour alleviating the need to begin lung removal while the donors’ hearts are still beating as is presently done elsewhere.