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A medical ethicist, an organ procurement professional, and an organ donation/transplant attorney respond to Dr. Brodkey’s “Tales From the ICU” column on DCD.

As a medical ethicist, an organ procurement professional, and an organ donation and transplant attorney, we appreciate the opportunity to provide a collaborative response to Dr. Brodkey’s article, “Why Doctors Aren’t Participating in Organ Donation After Cardiac Death,” published on June 13, 2024.

As an initial matter, there can be no organ donation after cardiac death (DCD) attempt unless and until the patient/potential donor has been declared dead. The Dead Donor Rule (DDR) requires that a patient must be declared dead prior to the procurement of organs for the purposes of donation, and the DDR is satisfied in both organ donation after brain death (DBD) and DCD cases. The process of organ procurement does not and cannot begin in either case unless and until there has been a declaration of death by either neurological criteria (DBD) or cardiopulmonary criteria (DCD).

Categories of Decision Making

It’s important not to conflate the requirement to obtain informed consent for medical procedures on living patients with the standards required for obtaining or confirming authorization for organ donation. Organ donation, and DCD specifically, involves two distinct categories of decision-making. Healthcare decisions, such as withdrawing care, require providers to obtain informed consent from the living patient or his legal surrogate. In contrast, the decision to authorize organ donation is made pursuant to anatomical gift laws (per the relevant state’s Revised Uniform Anatomical Gift Act).

As Dr. Brodkey notes, authorization for organ donation usually happens via a state driver licensing agency through a donor registry. Because the authorization for organ donation is facilitated after the declaration of death, informed consent for donation is not required under the law. The DDR is in effect at this point.

With regard to ethical concerns and potential conflicts of interest, in practice, and as Dr. Brodkey notes, clinical policies should ensure that the patient/potential donor’s treating physician does not compromise their duty to the patient. For example, in patients who progress as potential DCD donors, if death does not occur after withdrawal of life-sustaining measures, the patient remains under the care of the treating physician, who then administers palliative care. It is critical to recognize that the organ recovery team is not involved with the patient/potential donor unless and until the treating team declares death.

While unlikely, we agree that patients who may be potential DCD donors can survive the withdrawal of life-sustaining care. For this reason, policies establish a “hands-off” period between the declaration of death and organ recovery to ensure that the patient does not spontaneously revive.

We also agree that, regardless of roles, all donation and transplant partners (including providers and organ procurement organizations [OPOS] ) should engage sensitively with the family of the patient/potential donor and that skilled and compassionate staff from both the hospital and the OPO should be clear about their ethical duties and allegiances.

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