Brain-dead: medical morality in the non-western world HI 269 Week 22

Determining death: how can we tell that life has ended? Putrefaction Body is cold and dry, not warm and moist Cessation of breath Cessation of heartbeat and/or pulse Cessation of brain activity

Life, death & ‘the Romeo error’

Photo of c Burial vaults, Popular Mechanics Magazine, 1921 (wikimedia commons, accessed 8/03/09)

Life after breath: Impact of the Iron Lung

Impact of the Iron Lung (1940s), Artificial Ventilators (late 1950s) Separation of ‘breath’ from ‘life’, respiratory arrest from death Separation of heart beat from ‘life’, cardiac arrest from ‘death’ Western response: “Obsolete criteria for the definition of death can lead to controversy in obtaining organs for transplantation.” ‘Ad Hoc Committee of the Harvard Medical School to examine the definition of death’ JAMA 1968

“In my opinion the clinician can become too pre-occupied with the rights of the dead, namely the donor, at the expense of the recipient. We should not jeopardize the possible survival of the recipient while we are waiting around to made a decision whether the cadaver, as you call it, is dead or not.” Dr Cooley, US transplant surgeon, at July 1968 conference organised by Barnard

“As the need for donors grows larger, the definition of death must be carefully redefined. When are you dead enough to be deprived of your heart?” The Nation (Smith 1968:721).

“A neocortical death standard [that is, a standard based in irreversible loss of consciousness and cognition] could significantly increase availability and access to transplants because patients... declared dead under a neocortical definition could be biologically maintained for years as opposed to a few hours or days, as in the case of whole brain death. Under the present Uniform Anatomical Gift Act, this raises the possibility that neocortically dead bodies or parts could be donated and maintained for long-term research, as organ banks, or for other purposes such as drug testing or manufacturing biological compounds.” David Randolph Smith, US Lawyer, 1988

Transplants and the commodification of the body: medical timeline 1902 Organ transplant proven possible by successful surgical joining of blood vessels 1905 First corneal transplant 1918 Success of blood transfusions (facilitated by blood-tying and anti- coagulants) during WWI makes this an everyday aspect of complex surgery 1954 twin makes living donation of kidney to his brother (US; 1st UK 1960) 1962 First cadaver donor kidney transplant (immunosuppresive drugs) 1963 first lung, liver transplants 1967 first heart transplant 1968 National Tissue Typing and Reference Lab established in UK 1968 Harvard Med School publishes influential definition of ‘irreversible coma’ 1968 US Uniform Anatomical Gift Act passed, making it legal to donate deceased person’s organs/tissues for transplantation 1971 Organ Donor cards introduced for kidneys in UK 1972 Organ Matching Service established in UK 1976 Karen Ann Quinlan case supports establishment of ‘brain death’ as death

Medical timeline, cont UK transplant service established 1981 Presidential Commission in US adopts ‘whole brain’ inactivity as criteria for ‘brain death’ and Uniform Definition of Death Act 1981 UK kidney donor cards replaced with cards allowing donations of additional tissues 1983 FDA approves Cyclosporin, anti-rejection drug 1986 United Network for Organ Sharing established in USA to ensure equitable distribution of donated organs, set standards for transplant centres 1986 Bristol Eye Bank established (followed by Manchester, etc) 1987 Medicare US begins to pay for heart transplants 1990 Medicare US begins to pay for liver transplants (except in cases of liver cancer) 1993 FDA regulates all tissue banks 1994 UK established national register for organ and tissue donation 1994 National Coalition on Donation partners with National Ad Council to develop pro-donation ad campaign 1996 US Congress legislates to allow information on organ donor cards to be included with US tax return materials 2005 UK transplant merges with NHS Blood Service 2007 First ‘stranger’ or ‘altruistic’ living donor donation allowed in UK

Organ transplantation in Japan: timeline 1958 An Act Concerning the Corneal Transplantation (from conventionally dead donors, with their prior consent, and that of surviving family members) 1979 An Act Concerning the Transplantation of Cornea and Kidneys 1968 Wada case: first Japanese heart transplant, from donor in ‘irreversible coma’; initial enthusiasm, then surgeon accused of murder, arrested, but never prosecuted in court; 1983 Debate re-emerges when Japanese Ministry of Health and Welfare begins work to establish criteria for brain death; 1992 Prime Minster’s Committee on Brain Death and Transplantation concludes that brain death = human death, but that donor’s prior declaration is necessary for transplantation. Minority Opinion denies that brain death = human death’ 1997 Japanese Organ Transplantation Law establishes requirement for ‘donor’s prior declaration’ and family consent prior to brain-death diagnosis and organ removal; no donations allowed from children under 15; IF NO DONOR CARD, THEN ‘DEATH’ OCCURS ONLY WHEN HEART STOPS BEATING: patient is regarded as ‘alive’ until that moment; NO clauses in relation to live donors…

Organ transplantation in Japan: timeline 1999 Second Japanese heart transplant performed; by 2001, 14 cases of heart transplantation Japanese Organ Transplantation Law scheduled for reconsideration 2005 Japan Paediatric Society [JPS] determines that it is too early to reconsider ban on transplants from brain-dead child donors February , JPS establishes study panel on allowing child donors, largely in response to critique of Japanese ‘transplant tourism’ due to Japan’s organ shortage, and WHO call for countries to meet their own organ needs

Organ transplantation in Japan: timeline 2009 In total, since 1999, Japan has seen 81 organ transplants from brain-dead donors. In May 2009 General Meeting, WHO called for all donations to be completed in country of both door and recipient (no more ‘transplant tourism’) 2009 Japanese laws on organ transplantation revised July 13, The revised law declares that brain death is human death when it is diagnosed for the purpose of organ transplantation. Family consent is necessary to allow this ‘legal’ (as opposed to clinical) diagnosis of death; in addition, the individual concerned must not have expressed any opposition to organ donation. Organ donation from brain dead children is allowed with family consent (again, if the child expressed no reluctance to donate). Priority donation to the brain dead donor's family members is included in the law, despite opposition from medics and ethicists.

Table 1 “Is brain death equivalent to human death?” Yes No 1987 Yomiuri Shimbun Newspaper 46% 28% 1991 Mainichi Shimbun Newspaper 45% 23% 1992 Asahi Shimbun Newspaper 47% 41% 1997 Asahi Shimbun Newspaper 40% 48% 1999 Asahi Shimbun Newspaper 52% 30% Approximately 70% of transplanted kidneys and 80% of segmental liver procedures performed in Japan are live donor organs. In the United States, 68% of kidneys and 98% of livers transplanted in 1998 were obtained from cadaveric donors. What is the impact of these differences on overall numbers? In 1990, 741 kidney transplants were performed in Japan; 209 were from cadavers. In the US, 9491 cases of kidney transplantation occurred with 7498 of the donor kidneys coming from cadavers

Defining death North America, EuropeJapan Brain-death (either non-function of cerebrum [UK] or of cerebrum and brain-stem [US]), cardio-pulmonary death; Doctors choose definition of death (in consultation with patients/families); Doctors also define the moment of death in individual cases; death is a biological phenomenon; limited role for families. Cardio-pulmonary death; ‘clinical brain death’ (non-function of cerebrum and brain-stem); ‘Legal brain death’ is same as of 2009, but requires family consent. Otherwise apnea is required for declaration of death. Families/Individuals influence the definition of death; Strong role of family: ‘death’ is a social phenomenon. Medical profession moved quickly to define death as brain death; legal profession concurred Medical profession slowed by scandal of first transplant, popular distrust; legal profession opposed ‘brain death’ Cultural acceptance of ‘gift of life’ rhetoric, even though no social relationship is possible between giver and recipient ‘Gift of life’ rhetoric culturally awkward due to general expectations of reciprocity in gift-giving, and focus on gift-giving as foundation of social relationships

“There is a crucial difference between brain death and death judged by the classical criteria. Cessation of blood circulation due to cardiac arrest would promptly result in the lowering of the body temperature and discolouring of the skin that are evident to lay people. … Death of a human being should be announced when everyone can indeed sense the occurrence of such irreversible processes and accept the sad fact. To regard a human being as only an assembly of mechanical parts and utilize its organs and tissues as materials for recycling would completely negate the dignity of humans.” Watanabe Yoshio, Tokyo cardiologist, 1994

Locating personhood in the body West: ‘Cogito ergo sum’ (I think therefore I am): personhood equates to rationality, abides in the mind/brain. Emphasis on attaining perfect health for the body, by whatever means necessary. Japan: personhood depends on tamashii (soul) in life abides in the hara (abdomen), in death, the kubi (neck). Emphasis on ‘gotai manzoku’ or bodily integrity without addition of foreign elements

North America Medical profession moved quickly to define death as brain death; legal profession concurred Japan Medical profession slowed by scandal of first transplant, popular distrust; legal profession opposed ‘brain death’ Cultural acceptance of ‘gift of life’ rhetoric ‘Gift of life’ rhetoric culturally awkward due to general expectations of reciprocity in gift-giving ‘beating heart cadaver’ ‘neomort’ ‘shiju-ku-nichi’ (period of 49 days required for soul to detach from body: so no ‘moment of death’) Mienai shi (‘death which cannot be seen’) Invest in improving transplant technology; public health campaigns to increase levels of organ donation, tissue culture Invest in better prevention and treatment of heart, liver, kidney disease; campaigns to protect the rights of patients dying of trauma and their families Responses to transplant technologies, cyborg possibilities

Questions for seminar Why must organ donors in the US be anonymous? Why are living-donor transplants in Japan so unregulated as compared to US/UK/Europe? Why is there such debate in the US about abortion, and so little about ‘brain death’? Why is there so much debate in Japan about ‘brain death’ and so little about abortion?