OTTAWA, Ontario, 4 September, 12 (LifeSiteNews.com) – As Ontario’s organ donation agency aggressively campaigns to grow a list of registered organ donors, a legal scholar has slammed the updated national guidelines for establishing the moment of death, arguing that the guidelines were deliberately loosened to “increase the proportion of donors eligible for organ harvesting”.

Jacquelyn Shaw, BSc, MSc, LLB, LLM, writing in the McGill Journal of Law and Health, wrote that the updated 2008 Canadian Council for Donation and Transplantation (CCDT) guidelines, “dramatically altered the criteria for brain death declaration with the goal of increasing organ supplies.”

In Canada the whole-brain criteria for death has been practiced since 1968, but the new “brainstem” criteria enables doctors to declare a patient brain dead “potentially weeks, or more, sooner than under a whole-brain criterion,” observes Shaw.

This enables the CCDT to hit donor increase targets by “making many more organs available sooner, and in a more transplantable state” – but this begs the question, is someone declared dead under the brainstem criterion really dead?

While organ and tissue donation agencies which operate on the CCDT guidelines, such as Ontario’s Trillium Gift of Life Network, stress that brain death is death itself, underscoring that neurological death is “permanent and irreversible and there can be no hope whatsoever of recovery”, Shaw argues that there are both medical and legal problems with this criteria.

The updated CCDT criterion of death requires that only the lower part of the brain which is responsible for breathing, wakefulness, and certain other reflexes be shown to be permanently non-functional. “Significantly, the CCDT’s criterion contains no requirement for non-functionality of the brain’s cortex, responsible for conscious awareness, voluntary movement, sensation (e.g. pain), and communication,” wrote Shaw.

“A brainstem criterion could declare dead some patients who are only super locked-in. With damaged brainstems, but intact cortices, such patients might retain pain-awareness, but could be declared brain-dead under CCDT standards, making them eligible for (unanaesthetised) organ harvesting.”

Because not all patients may be actually dead when their organs are harvested, Shaw argued that the CCDT’s brainstem criterion may “infringe patients’ rights to life and to physical and psychological security of the person.”

Shaw said that the USA and other nations have rejected the brainstem criterion of death due to a high risk of error.

Dr. John Shea, MD FRCP(C), who has written extensively about the highly controversial theory of brain death, told LifeSiteNews that respect for life means that “it’s important to determine that a person is actually dead before harvesting organs because if they are not dead, and you harvest the organs, you are essentially killing them.”

“With brain death criteria, there is no absolute certainty that the person is dead,” he said. “Criteria for establishing brain death have been deliberately developed in such a way so that even though a person is not biologically dead, they are declared dead so that their organs can be harvested and no one can be prosecuted.”

“The fact is that people have to be alive when their organs are harvested because their organs are harmed when death actually occurs,” he said.

The gruesome fact that organ donors are often alive when their organs are harvested — a necessary condition to produce healthy, living organs — prompted three leading experts last year to advise the medical community to adopt a more “honest” moral criteria that allowed for the harvesting of organs from “dying” or “severely injured” patients, with proper consent.

The experts argued that this approach would avoid the “pseudo-objective” claim that a donor is “really dead,” which is often based upon purely ideological definitions of death designed to expand the organ donor pool. They argued this would allow organ harvesters to be more honest with the public, as well as ensure that donors don’t feel pain during the harvesting process.

Dr. Paul Byrne, an experienced neonatologist, clinical professor of pediatrics at the University of Toledo, and president of Life Guardian Foundation told LifeSiteNews at the time that “all of the participants in organ transplantation know that the donors are not truly dead.”

“How can you get healthy organs from a cadaver? You can’t,” he said.

Shaw called the CCDT’s updated guidelines for brain death determination in Canada “significant, dangerous, [and] under-the-radar” adding that they are “virtually unknown” and that they warrant “greater public attention.”

Meanwhile, numerous stories have emerged of awakenings following medical declarations of brain death. In one particularly chilling case, 21-year-old Zack Dunlap, who was in a locked-in state following an ATV accident, recounted hearing doctors discuss harvesting his organs in his presence. Zack showed signs of life mere moments before he was scheduled to be wheeled into the operating theater to have his organs removed, when one of his relatives tried to get him to react by digging a pocketknife under one of his fingernails. 

These stories provide weight to the arguments of doctors, like Shea and Byrne who say that the declaration of brain death is not sufficient to arrive at a moral certitude of actual death and that the recovery of organs based on that declaration is immoral.