Getting the Best Possible Organs for the Rest of Us

By Mark McQuain

A recent September 6th Perspective in the NEJM entitled “Voluntary Euthanasia – Implications for Organ Donation” teases with the following lead-in:“Canada now permits physicians to hasten the death of a patient by means of physician-assisted suicide or voluntary euthanasia. This development creates a new pathway for organ donation – and with it, some challenges.” Kudos to the NEJM marketing department for luring me into finally buying a full subscription. I’ll summarize some key points for those without a subscription.

The article begins by summarizing some differences between the comatose patient receiving end-of-life care in a standard ICU environment and the situation of individual intending voluntary euthanasia in a hospital. Healthcare teams may rely on surrogate decision making in the first instance but require first person consent in the euthanasia instance. Also, use of sedatives and analgesics in traditional end of life care are guided by the doctrine of double effect (intending comfort but not death) whereas physicians are not legally required to titrate those same medications in the instance of voluntary euthanasia (where euthanasia is legal). These issues are effectively the non-controversial portion of the article.

The heart of the article dealt with what one ought to do in the situation of a patient who wants to donate his or her organs “in the best condition possible” while receiving voluntary euthanasia. This would involve “procuring the patient’s organs in the same way that organs are procured from brain-dead patients (with the use of general anesthesia to ensure the patient’s comfort).”

The problem is that these patients aren’t brain dead yet. The authors are frustrated that awaiting brain death, even in voluntary euthanasia, results in sub-optimal quality of the donor organs. Harvesting organs from voluntarily euthanized patients before they are brain-dead “would require an amendment to the Criminal Code of Canada, which defines medical assistance in dying as the administration of a ‘substance’ by a qualified provider. By this definition, organ retrieval is not an accepted cause of death.” (N.B.- Though it most certainly is the cause of death!)

For those unable to retrieve the NEJM article, I offer a similar article by Dominic Wilkinson and Julian Savulescu supporting the same ethical argument (that it is OK to cause the death of an individual by harvesting their organs if they wished voluntary euthanasia). They summarize Dr. Robert Truog’s bioethical position (one of the authors of the present NEJM article) in footnote 66 as follows:

“Truog’s justification for ODE [Organ Donation Euthanasia] is different from that presented here [in our paper]. He argues that current concepts of brain death and the dead-donor rule are incoherent, and he proposes an alternative based upon the principles of autonomy and non-maleficence. We find Truog’s arguments compelling. Our paper can be seen as providing a complementary argument in favour of ODE. Truog favours a narrow definition for the group of patients who may consent to this procedure: only those who will die within minutes of withdrawal of life support, or who are permanently unconscious. Our definition of LSW [Life Support Withdrawal] donors overlaps with Truog’s, but includes the larger group of patients from whom it is permissible to withdraw life support in intensive care, and whose death is highly likely to ensue (though not necessarily instantly).”

To be blunt, what both groups are arguing is that it should be OK to surgically remove organs from an individual who is not brain dead though has already consented to voluntary euthanasia, knowing that the surgical removal of the organs will cause the immediate death of the individual. The priority of marrying euthanasia and organ donation is obtaining the best possible organs for the rest of us.

As a counter argument, I again turn to Wesley Smith for his thoughts in a recent National Review article similarly entitled “Canada Conjoining Euthanasia/Organ Donation”. It is short and to the point.

I must concur with Wesley Smith: The slippery slope of euthanasia is getting more slippery. How long before we grease those skids further by paying for the organs so harvested?

Belgian Euthanasia: Volunteers No Longer Necessary?

A recent resignation letter by one member of Belgium’s Euthanasia Commission suggests the slippery slope of who meets the criteria for legal euthanasia is becoming even more slippery. Dr. Ledo Vanopdenbosch sent his resignation letter to members of the Belgian Parliament who oversee the commission. His concern was with one of the main requirements of the law, which demands that the individual patient formally request euthanasia. Vanopdenbosch claims euthanasia occurred on a psychiatric patient without his or her request. His resignation has generated substantial concern not only because Vanopdenbosch is a committee member but also because he is considered a strong advocate of euthanasia. Here is the AP article in Voice of America with the details.

One of the main tasks of the Belgium Euthanasia Commission is to review every euthanasia case to make sure each case meets the legal criteria necessary for euthanasia. Any case in doubt is referred to the public prosecutor’s office. It is perhaps telling that in the last 15 years since legalization of euthanasia in Belgium, over 10,000 individuals have been euthanized but only one case has been referred to prosecutors by the commission with the concern that it may have been performed illegally. Vanopdenbosch argues that the commission is acting in place of the courts, a potential conflict of interest given that those on the commission are generally considered strong supporters of euthanasia. In addition to the slippery slope metaphor used earlier, one might also add that the foxes are guarding the henhouse.

An internal review of this particular case resulted in the committee claiming that what really happened was an accidental death related to palliative care rather than actual involuntary or non-voluntary euthanasia, as is claimed by Vanopdenbosch. The general population will never know, as commission protocol and privacy concerns prevent the details of the case from ever reaching the light of day. In absence of further details, one wonders whether the alleged palliative care for the unknown psychiatric condition was formally requested by an otherwise competent patient or just provided absent his or her formal consent but “in his or her best interest” by the patient’s physician or caregivers.

It is presently unknown whether or not Dr. Vanopdenbosch’s resignation will result in any changes in the structure, function or transparancy of Belgium’s Euthanasia Committee. At the very least, one would expect to see an increase in referrals to the public prosecutor’s office for legal oversight. It is simply unbelievable that the committee has only encountered one case out of 10,000 cases that they found sufficiently suspect to refer to prosecutors for legal review. Perhaps more importantly, I want to believe that even those supporting euthanasia would be against all forms of non-voluntary euthanasia, particularly involuntary euthanasia. Sadly, I am naive. In our post-modern world, how can any death be a “good death” unless, at the very least, the competent patient in question so stipulates?

(For an excellent recent YouTube interview containing a brief history of euthanasia, please see this link of an interview with Dr. Richard Weikart, Professor of History at California State University, Stanislaus. Some highlights: at 10:40 where he touches on Belgium and psychiatric euthanasia, at 19:00 where he discusses the slippery slope argument, and at 21:30 regarding non-voluntary euthanasia)

How Slippery the Slope?

Proponents of physician-assisted suicide (PAS) and voluntary active euthanasia (VAE) tend to dismiss slippery slope arguments against their position as needless and unnecessary alarms. Ongoing events and discussions in Canada, however, suggest that the slope of assisted dying may indeed be slippery and the alarms justified.

In February 2015 the Supreme Court of Canada found that the existing ban on physician-assisted dying (PAD) violated the Canadian Charter of Rights and Freedoms. The Court initially gave the federal/provincial/territorial governments one year to pass new legislation, but later extended the deadline. As a result, PAD will be legal in Canada by June 6, 2016. Currently, the various levels of government are hammering out the details of the regulatory framework for assisted dying with the assistance of an advisory panel on PAD. Though the June deadline is still months away and the work of the advisory panel is not yet complete, some of the panel’s recommendations that are coming to light are troubling.

First, the panel maintains that “physician-assisted dying” (PAD) should encompass both PAS (the physician prescribes a lethal medication) and VAE (the physician injects a lethal medication) and should be publicly funded. The panel sees no ethically/medically significant difference between the two acts and recommends that both be permissible. Thus, Canada, from the beginning, would join the ranks of the Netherlands, Belgium, and Luxembourg in legalizing VAE. In contrast, PAS is legal in six states in the U.S. but VAE is still illegal in all fifty states.

Second, eligibility for PAD should be based on “competence” rather than “age,” theoretically removing age limits altogether. Co-chair Jennifer Gipson remarks, “Some children, especially adolescents, have the competence and the capacity to make end of life decision. What it turns on is not their age, not what their birth certificate says, but it’s really their ability to appreciate their diagnosis, their options.” While some members of the panel balk at the notion of a “competent” five or seven year old, none seem to have problems with a “competent” twelve year old, which seems to be the lower limit on which the panel has settled. Thus, from the start, Canada would be in line with the Netherlands where VAE is legal for children over the age of twelve, and potentially with Belgium that allows VAE for children without any age limit, developments that did not occur until 2014 after years of practicing more restricted VAE. In what other context does “competent adult” include children 12 years old and younger?

Third, patients requesting PAD need not be “terminal.” To have access to PAD, the Supreme Court declared that patients must have a “grievous and irremediable” condition. The advisory panel interprets this language to mean “a very severe or serious illness, disease, or disability that cannot be alleviated by any means acceptable to the patient.” The patient need not have a terminal condition. One wonders if mental conditions are included in this comprehensive redefinition.

These are not the only troubling recommendations of the committee. Another, for example, is that the “P” in PAD is not limited to physicians, but would also include a registered nurse or other health care professionals. But these are sufficient to sound the alarm. Eligibility requirements for euthanasia continue to be relaxed. Canada proposes to begin from a “relaxed” position. From PAS to VAE, from the limit of legal adult to no age limit at all, from terminal illness to any condition that makes life not worth living to the patient. Where will fixation on death end, and limits on human autonomy begin? To this writer, the slope seems as slippery as a downhill ski course!

Sources: http://eol.law.dal.ca/?page_id=238; http://www.bioedge.org/bioethics/hammering-out-the-details-in-canadas-new-euthanasia-regime/11700#sthash.zfkfJw6j.dpuf