Last Minute Christmas Gift Idea: Your Lungs and Eyeballs

Josh Clark

(Sorry in advance for the really, really long post. In case you don't make it to the bottom, happy holidays!)

Back when I was a paranoid little raver kid in the early 1990s, my friends and I held a firm belief that it was a bad idea to register as an organ donor. The logic went that if we ever ended up in the ER in need of some talented surgery, a physician who noted we were organ donors might take less than heroic measures to save our lives. We reasoned that we'd be seen less as patients and more as skin bags filled with precious organs that could be harvested for people who lived better lives than us. Money, the root of all decisiveness, was at the center of the matter; we thought physicians received cash for every organ, eyes or tissue they procured.

I read a New York Times Magazine article this past weekend about organ procurement. We were wrong about that last part; a 1984 federal law bans any kind of "valuable consideration" in exchange for organs. This includes the bags with dollar signs delivered courtside for the physicians who procured our organs as they sipped Long Island Ice Teas after a tennis set at the country club.

There is an ongoing international discussion about abandoning both this law and the custom it's based on. The non-profit organ procurement organizations (OPOs) that operate the donation process stringently avoid even the appearance of financial enticement for donors, even as legislators move to create incentives that could expand the pool of potential donors. Proposals to reimburse families for funeral expenses or lodging and food or pay them outright have all been floated to help expand the pool of donors. Several European nations maintain an opt-out policy (you're considered an organ donor until you indicate otherwise).

We here in Georgia had one of the largest donor registries in the nation until recently because registration was easy. All you had to do was check a box on your driver's license renewal form. In return, the state knocked a cool $7 off its license fee. Even this nominal reward created problems, however. As Emory University economist David Howard points out, the Georgia OPO shied away from its own state registry as much as possible, until the driver's license program was scrapped in 2005.

Why? That $7 enticement was enough to provide even a shred of doubt about the donor's intentions. Did he join the registry just for the reduced fee? Organ donation as it's framed right now is a gift of life, a completely altruistic act and the OPOs have a devil of a time maintaining that public image. Getting people to agree to enter the afterlife like a poorly cared for rag doll is like enticing a squirrel to eat a nut from your hand. Organ procurement is ghoulish enough; OPOs can't afford to taint its public image by adding money to the mix.

So my 90s-era friends and I were off the mark with the money part, but we weren't necessarily wrong in our estimation that physicians might get a bit grabby with our organs. The issue of organ donation is a highly contentious one, I found, and the topic of incentives is one half of the equation. The other is a debate between zealous physicians who see the hurdles presented to them in procurement as madness and the medical ethicists who prefer to err on the side of caution.

There is, it turns out, an alarming lack of guidance and protocol when it comes to organ procurement. It wasn't until 1997 that the current standard for procuring organs after the heart stops was established. The donation after cardiac death (DCD) protocol requires physicians wait five minutes after the cessation of a heartbeat before digging into a cadaver to harvest organs and tissue. But there's no law that requires observance of the DCD protocol. The advisory board that created it admitted the five minute mark is an arbitrary one, based on the board's collective expert judgment.

This irks some physicians, mostly because five minutes after the heart stops pumping oxygen-filled blood may be long enough for hardy organs to survive, but it destroys the heart itself, rendering it unfit for transplant in most cases. So a physician in Colorado came up with another, shorter protocol that calls for harvest 65 seconds after the heart beats its last. It's far a more aggressive standard, but at least it's based on research: The physician who created it reviewed the medical literature and found the longest duration between cessation and spontaneous renewal of a heartbeat on the books was 65 seconds.

The physician who came up with the 65-second protocol also faced some lawsuits. This, it turns out, is how our organ procurement system has been assembled; piecemeal, through court cases won or lost. Someone pushes the envelope, gets sued, wins the case and the now legally-precedent protocol is considered by hospitals around the nation. The origin of harvesting organs for transplant as a method of saving lives is, itself, based on early civil lawsuits. Today, the only law governing the process (aside from the valuable consideration provision) is that the patient is required to be dead; you can't kill someone to take their organs. Even the wishes of the family don't have to be honored (although custom dictates they're at least asked), if the patient clearly intended to be an organ donor upon death.

But this requirement isn't as simple as it seems. In the case of DCD, is the patient dead 65 seconds after cessation of a heartbeat? Five minutes? An hour? Even more murky is the realm of brain death. A protocol for determining brain death includes checking for responses like choking and pupil dilation, which are governed by the most primitive part of the brain, the brainstem. If the brainstem isn't functioning, medical science assumes that no part of consciousness -- like the sensation of pain, for example -- is around either. Yet, in brain death, a patient's vital organs may still function through the aid of a ventilator. So is the patient truly dead?

The author of the NYT article makes the interesting point that as a nation, the U.S. has created -- albeit extremely contentiously -- a standardized point where life begins. What we don't have is a quantified point where life ends. This is not to say the federal government is a detached bystander in the realm of organ donation. Jimmy Carter's administration convened the panel that created the ban on valuable consideration. And last January, the President's Council on Bioethics released an opinion that emphasizes brain death (the neurological standard) over cardiac death (the cardiopulmonary standard).

The Council used philosophy as much as science to create its revised definition of death: a human being no longer meaningfully engaged in the world is considered dead, even if he is still able to breathe with the help of a ventilator. The opinion illuminates the fine line established by the French in 1959, called "beyond coma," where a distinction was realized between people in a debilitated brain state who are kept alive by a ventilator and those who are already dead and breathing through the use of the machine. This was the birth of the notion of brain death, the point where technology and catastrophic trauma converge to produce functioning cadavers.

Yet our understanding of cognitive function is still primitive enough that we lack the knowledge to issue a definitive line that establishes life and death when lungs and vital organs respond to the function of the ventilator. Which is why the Council leaned on philosophy to make their judgment.

But you'll notice that the definition is ambiguous and lacks any real measurement to establish death. It cuts both ways. A lack of legal guidance on organ procurement allows for doctors to push the envelope to ensure that as many useful organs as possible are harvested for reuse. On the other hand, it allows for doctors to push the envelope to ensure that as many useful organs as possible are harvested for reuse.

I've come to think benefits to others outweigh the risk to myself. Consider this my unofficial entry into the organ donation registry until I get on officially.

Happy holidays, all.

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