Parliaments need to alter the definition of death, say doctors
Sydney Morning Herald / Eamon Gallagher
Two Australian researchers say a new form of heart transplantation is illegal under Australian law and that legislators should modify the definition of death to allow for the procedure.
In an article published this month in the Medical Journal of Australia, James Tibballs of the Royal Children’s Hospital and Neera Bhatia of Deacon University Law School argue that the word “irreversible” in the legal definition of death is a stumbling block to opening up the potential number of hearts available for transplant.
The procedure in question involves the removal of a heart from a donor once “circulatory death” — the cessation of circulation of blood in the body — has occurred. The Australian National Protocol for Donation and Cardiac Death (NPDCD) allows for organ procurement between 2 to 5 minutes after circulatory death — an apparent approval of the controversial practice.
Nevertheless, Australian law in all jurisdictions defines death as either “irreversible cessation of all functions of the brain” (brain death) or as “irreversible cessation of circulation of blood in the body” (circulatory death). It does not define irreversible or how to determine irreversibility, and this leaves open the possibility that doctors could be prosecuted for harvesting organs before a patient was, according to the legal definition, dead.
“What has been done in a small number of cases and what is envisaged in the future does not conform to the present law,” Dr Tibballs told the Sydney Morning Herald.
“We do not want to see the circumstance in which the doctors and nurses and others involved in the procurement of organs face a criminal charge for their conduct – which they are performing in good faith – but when it is perhaps unknown to them that what they are doing does not conform to the present law”, he said.
Tibballs and Bhatia propose an amendment to existing law:
“A possible alternative would be to retain the present definition of brain death as irreversible cessation of all function of the brain, but to omit the requirement for irreversibility in the definition of circulatory death and to redefine it as cessation of circulatory function with cessation of higher brain function. Under this proposition for the redefinition of circulatory death for the purpose of transplantation, procurement of a heart for the purpose of its transplantation could proceed without legal risk and without risk of retained consciousness of the donor.”
The question is significant for Australia where, despite an overall increase in the organ donation rate in the past decade, the rate of heart donations has declined.
definition of death
determination of death
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