Kathleen Gilbert

Shock: requiring death before organ donation is unnecessary, say experts

Kathleen Gilbert
Kathleen Gilbert

TORONTO, November 1, 2011 (LifeSiteNews.com) – Because organ donors are often alive when their organs are harvested, the medical community should not require donors to be declared dead, but instead adopt more “honest” moral criteria that allow the harvesting of organs from “dying” or “severely injured” patients, with proper consent, three leading experts have argued.

This approach, they say, 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, and 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.

The chilling comments were offered by Dr. Neil Lazar, director of the medical-surgical intensive care unit at Toronto General Hospital, Dr. Maxwell J. Smith of the University of Toronto, and David Rodriguez-Arias of Universidad del Pais Vasco in Spain, at a U.S. bioethics conference in October and published in a recent paper in the American Journal of Bioethics.

The authors state frankly that under current practices donors may be technically still alive when organs are harvested – a necessary condition to produce healthy, living organs. Because of this, they say that protocol requiring a donor’s death is “dangerously misleading,” and could overlook the well-being of the donor who may still be able to suffer during the harvesting procedure.

“Because there is a general assumption that dead individuals cannot be harmed, veneration of the dead-donor rule is dangerously misleading,” they write. “Ultimately, what is important for the protection and respect of potential donors is not to have a death certificate signed, but rather to be certain they are beyond suffering and to guarantee that their autonomy is respected.” 

Instead of the so-called Dead Donor Rule (DDR), the authors propose that donors should be “protected from harm” (i.e given anesthesia so that they cannot feel pain during the donation process), that informed consent should be obtained, and that society should be “fully informed of the inherently debatable nature of any criterion to declare death.”

The doctors note that developing the criteria for so-called “brain death,” which is often used by doctors to declare death before organ donation, was an “ideological strategy” aimed at increasing the donor pool that has been found to be “empirically and theoretically flawed.” They also criticize the latest attempts to create new, even looser definitions of death, such as circulatory death, which they argue amount to simply “pretending” that the patient is dead in order to get his organs.

The legitimacy of “brain death,” “cardiac death,” and even “circulatory death” - which can be declared only 75 seconds after circulatory arrest - as actual death has been an ongoing debate in public commentary on organ donation. Many experts assert that doctors familiar with organ donation are aware that the terms, intended to delineate a threshold of probable death, is different from actual bodily death, rendering highly uncertain the moral status of organ donation.

Meanwhile, countless stories have emerged of “miraculous” awakenings following brain death, providing weight to the arguments of doctors and others who say that the process of procuring viable organs not only fails to ensure that a patient has certainly died, but is impossible unless a body is still technically alive.

Dr. Paul Byrne, an experienced neonatologist, clinical professor of pediatrics at the University of Toledo, and president of Life Guardian Foundation, said he was not surprised at the recent statements, which he said merely reflect a long-open secret in the organ donation field.

“All of the participants in organ transplantation know that the donors are not truly dead,” Byrne told LifeSiteNews.com in a telephone interview Tuesday.

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

Byrne affirmed that giving pain medication to organ donors is routine. Doctors taking organs from brain-dead donors “have to paralyze them so they don’t move so when they cut into them to take organs, and when they paralyze them without anesthetics, their heart rate goes up and their blood pressure goes up,” he observed. “This is not something that happens to someone who’s truly dead.”

The neonatologist said he has personally studied the theory of “brain death” since 1975, seven years after the first vital organ transplant in 1968, and has found that death criteria has continually been changed to accommodate a demand for fresh organs. The idea of a “dead donor rule” did not even emerge until the 1980s, he said, and didn’t enter common parlance until years later.

“There really is no dead donor rule, although they’re trying to make it seem like there is,” said Byrne.

Byrne led a Vatican conference on “brain death” criteria in 2008 in which a large group of international experts, many of whom are world leaders in their fields, attested to the illegitimacy of “brain death” as an accepted criterion for organ removal.

The comments by the Canadian and Spanish experts have come under fire from the organ donor community, some members of which have expressed concern that the statements could lead people to opt out of donating their organs.

“In the overwhelming majority of cases, the concept of death is easy, obvious and not really subject to any complex interpretation. It’s very clear,” Dr. Andrew Baker, the medical director of the Trillium Gift of Life Network, which oversees Ontario’s transplant system, told the National Post. “They’re dead, you can see it, there is no return of anything.”

James DuBois, a health ethics pro-fessor at Saint Louis University, also criticized the comments, saying that removing the Dead Donor Rule could “have negative consequences: decreasing organ donation rates, upsetting donor family members and creating distress among health care workers.”

See related article: Vindication of criticisms of organ donation


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Quebec groups launch court challenge to euthanasia bill

LifeSiteNews staff
By LifeSiteNews staff

As announced when the Quebec legislature adopted Bill 52, An Act respecting end-of-life care, the citizen movement Living with Dignity and the Physicians’ Alliance against Euthanasia, representing together over 650 physicians and 17,000 citizens, filed a lawsuit before the Superior Court of Quebec in the District of Montreal on Thursday.

The lawsuit requests that the Court declare invalid all the provisions of the Act that deal with “medical aid in dying”, a term the groups say is a euphemism for euthanasia. This Act not only allows certain patients to demand that a physician provoke their death, but also grants physicians the right to cause the death of these patients by the administration of a lethal substance.

The two organizations are challenging the constitutionality of those provisions in the Act which are aimed at decriminalizing euthanasia under the euphemism “medical aid in dying”. Euthanasia constitutes a culpable homicide under Canada’s Criminal Code, and the organizations maintain that it is at the core of the exclusive federal legislative power in relation to criminal law and Quebec therefore does not have the power to adopt these provisions.

The organizations also say the impugned provisions unjustifiably infringe the rights to life and to security of patients guaranteed by the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. They further infringe the right to the safeguard of the dignity of the person, which is also protected by the Quebec Charter.

In view of the gravity of the situation and the urgent need to protect all vulnerable persons in Quebec, they are requesting an accelerated management of the case in order to obtain a judgment before the Act is expected to come into force on December 10, 2015.


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Colorado baker appeals gvmt ‘re-education’ order

LifeSiteNews staff
By LifeSiteNews staff

A Colorado cake artist who declined to use his creative talents to promote and endorse a same-sex ceremony appealed a May 30 order from the Colorado Civil Rights Commission to the Colorado Court of Appeals Wednesday.

The commission’s order requires cake artist Jack Phillips and his staff at Masterpiece Cakeshop to create cakes for same-sex celebrations, forces him to re-educate his staff that Colorado’s Anti-Discrimination Act means that artists must endorse all views, compels him to implement new policies to comply with the commission’s order, and requires him to file quarterly “compliance” reports for two years. The reports must include the number of patrons declined a wedding cake or any other product and state the reason for doing so to ensure he has fully eliminated his religious beliefs from his business.

“Americans should not be forced by the government – or by another citizen – to endorse or promote ideas with which they disagree,” said the cake artist’s lead counsel Nicolle Martin, an attorney allied with Alliance Defending Freedom. “This is not about the people who asked for a cake; it’s about the message the cake communicates. Just as Jack doesn’t create baked works of art for other events with which he disagrees, he doesn’t create cake art for same-sex ceremonies regardless of who walks in the door to place the order.”

“In America, we don’t force artists to create expression that is contrary to their convictions,” added Alliance Defending Freedom Senior Legal Counsel Jeremy Tedesco. “A paint artist who identifies as homosexual shouldn’t be intimidated into creating a painting that celebrates one-man, one-woman marriage. A pro-life photographer shouldn’t be forced to work a pro-abortion rally. And Christian cake artists shouldn’t be punished for declining to participate in a same-sex ceremony or promote its message.”

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In July 2012, Charlie Craig and David Mullins asked Jack Phillips, owner of Masterpiece Cakeshop, to make a wedding cake to celebrate their same-sex ceremony. In an exchange lasting about 30 seconds, Phillips politely declined, explaining that he would gladly make them any other type of baked item they wanted but that he could not make a cake promoting a same-sex ceremony because of his faith. Craig and Mullins, now represented by the American Civil Liberties Union, immediately left the shop and later filed a complaint with the Colorado Civil Rights Division. The case now goes to the Colorado Court of Appeals as Masterpiece Cakeshop v. Craig.

“Jack, and other cake artists like him – such as those seen on TV shows like ‘Ace of Cakes’ and ‘Cake Boss’ – prepare unique creations that are inherently expressive,” Tedesco explained. “Jack invests many hours in the wedding cake creative process, which includes meeting the clients, designing and sketching the cake, and then baking, sculpting, and decorating it. The ACLU calls Jack a mere ‘retail service provider,’ but, in fact, he is an artist who uses his talents and abilities to create expression that the First Amendment fully protects."

Celebrity cake artists have written publicly about their art and the significant expressive work that goes into the artistic design process for wedding cakes.


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Prisoner of conscience Mary Wagner appeals her conviction

Tony Gosgnach
By Tony Gosgnach

TORONTO -- As promised, Mary Wagner has, through her counsel Dr. Charles Lugosi, filed a formal notice of appeal on numerous points regarding her recent, almost two-year-long court case that ended on June 12.

Justice Fergus O’Donnell of the Ontario Court of Justice rejected every application made by the defence – including for access to abortion center records, public funding, standing for a constitutional challenge and for expert witnesses to be heard – before he found Wagner guilty and sentenced her to five months in jail on a charge of mischief and four months on four counts of failing to comply with probation orders.

He further levied two years of probation, with terms that she stay at least 100 metres away from any abortion site. However, because Wagner had spent a greater time in jail than the sentence, she was freed immediately. She had been arrested at the “Women’s Care Clinic” abortion site on Lawrence Avenue West in Toronto on August 15, 2012 after attempting to speak to abortion-bound women there. She then spent the duration of the trial in prison for refusing to sign bail conditions requiring her to stay away from abortion sites.

Wagner is using the matter as a test case to challenge the current definition of a human being in Canadian law – that is, that a human being is legally recognized as such only after he or she has fully emerged from the birth canal in a breathing state.

Wagner’s notice states the appeal is regarding:

  • Her conviction and sentence on a single count of mischief (interference with property),
  • Her conviction and sentence on four counts of breach of probation,
  • The order denying public funding,
  • The order denying the disclosure of third-party records,
  • The order denying the admission of evidence from experts on the applicant’s constitutional challenge concerning the constitutional validity of Section 223 of the Criminal Code,
  • The order denying the admission of evidence from experts concerning the construction of Section 37 of the Criminal Code,
  • The probation order denying Wagner her constitutional rights to freedom of speech, freedom of expression, freedom of conscience and freedom of religion on all public sidewalks and public areas within 100 metres of places where abortions are committed,
  • And each conviction and sentence and all orders and rulings made by O’Donnell.

In the notice of appeal, Lugosi cites numerous points on which O’Donnell erred:

  • He denied Wagner her constitutional right to make full answer and defence.
  • He denied Wagner her right to rely on Section 37 of the Criminal Code, which permits “everyone” to come to the third-party defence and rescue of any human being (in this case, the preborn) facing imminent assault.
  • He decided the factual basis of Wagner’s constitutional arguments was a waste of the court’s time and that no purpose would have been served by having an evidentiary hearing on her Charter application because, in the current state of Canadian law, it had no possibility of success.
  • He misapplied case law and prejudged the case, “giving rise to a reasonable apprehension of bias and impeding the legal evolution of the law to adapt to new circumstances, knowledge and changed societal values and morals.”
  • He accepted the Crown’s submission that it is beyond the jurisdiction of the courts to question the jurisdiction of Parliament legally to define “human being” in any manner Parliament sees fit.
  • He ruled Section 223 of the Criminal Code is not beyond the powers of Section 52 of the Constitution Act, 1982.
  • He ruled Section 223 of the Criminal Code does not violate the Preamble to, as well as Sections 7, 11(d), 15 and 26, of the Charter of Rights and Freedoms.
  • He denied Wagner standing to raise a constitutional challenge to the validity of Section 223 of the Criminal Code.
  • He ruled that Section 223 of the Criminal Code applied generally throughout the entire Criminal Code and used it to deny unborn human beings the benefit of equal protection as born human beings under Section 37 of the Criminal Code.
  • He denied the production and disclosure of third-party records in the possession of the “Women’s Care Clinic” abortion site, although the records were required to prove Wagner was justified in using reasonable force in the form of oral and written words to try to persuade pregnant mothers from killing their unborn children by abortion.
  • He denied Wagner the defence of Section 37 of the Criminal Code by ruling unborn children did not come within the scope of human beings eligible to be protected by a third party.
  • He ruled Wagner did not come within the scope of Section 37 because she was found to be non-violent (in that she did not use physical force).
  • He ruled the unborn children Wagner was trying to rescue were not under her protection.
  • He denied Wagner the common-law defences of necessity and the rescue of third parties in need of protection.
  • He denied Wagner public funding to make full answer and defence for a constitutional test case of great public importance and national significance.
  • He imposed an unconstitutional sentence upon Wagner by, in effect, imposing an injunction as a condition of probation, contrary to her constitutional rights of free speech, freedom of expression, freedom of conscience and freedom of religion.

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Among the orders Lugosi is seeking are:

  • That an appeal be allowed against conviction on all counts and that a verdict of acquittal be entered on all counts,
  • That Section 223 of the Criminal Code be found unconstitutional  and contrary to Section 52 of the Constitution Act, 1982, as well as the unwritten constitution of Canada,
  • That the sentence be declared unconstitutional and contrary to Section 52 of the Constitution Act, 1982, and the unwritten constitution of Canada or that a new trial be conducted, with Wagner permitted to make full answer and defence, be given standing to make a constitutional attack on Section 223 of the Criminal Code, with the admission of expert witnesses,
  • That the Women’s Care Clinic abortion site be made to produce third-party records pertaining to patients seen on August 15, 2012 (when Wagner entered the site),
  • And that there be public funding for two defence counsels at any retrial and for any appeal related to the case.

No date has yet been established for a decision on the appeal or hearings.

A defence fund for Wagner’s case is still raising money. Details on how to contribute to it can be found here.


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