Doctors at NYU Langone recently revealed they had transplanted a genetically altered pig kidney into a brain-dead body, presumably to demonstrate that such a thing might be possible in a living body. The report of the story claims the kidney was functional more than 30 days after implantation.
It is true that more individuals need a kidney than are currently available, and the gist of this story is to celebrate this breakthrough. But this is a superficial appraisal. Broadly, the rightness or wrongness of this type of procedure are the consequences of a series of moral choices, thus far unreported and unexamined, and include the problems of brain death, human experimentation, consent, rationing, and animal rights.
The Moral Factors at Play
Brain Death, Experimentation, and Consent
We generally continue to reject the idea of the commodification of the human body. However, brain death, recognized as death in all 50 states, transforms a dead human body into a resource. The dead donor rule, however, requires a person be dead before we remove life-sustaining organs for transplantation. History marks unorthodox contemplations about uses of human bodies. Jonathon Swift's A Modest Proposal, published in 1729, was a satirical essay suggesting a solution to Irish poverty might be found in the selling of the children of the poor as food for the rich. The essay further describes recipes for the tastiest way to cook and consume a baby. Such an idea, even under prevailing standards at that time, was considered abhorrent. His essay was never meant to seriously suggest such a solution but was instead offered as social commentary in a difficult time.
Brain death is important because without it, we can't remove viable organs for transplantation. The prohibition against forfeiting a life for the sake of another life is a cornerstone of civil society. Human experimentation has a dark history, and since post-World War II, has been regulated under rules 45 and 46 in the Code of Federal Regulations known as the Common Rule. Broadly, subjects in experiments must consent, but under no circumstances can a person consent to being killed or tortured as part of any experimental protocol. In the novel Never Let Me Go, author Kazuo Ishiguro imagines a world where human clones are born to become involuntary organ donors for other humans. Clones are manifestly indistinguishable from the recipients. They have hopes and dreams, but they lack the rights of people. Ishiguro reveals the fate of the characters slowly, and ultimately ends with a shocking conclusion -- they must donate their organs until it kills them.
Death is the permanent absence of the signs of life. Permanence remains a problem in the case of "brain death" as we can't know the durability of the state of death until it proves itself durable. Mistakes have been made in determining death. Safety coffins, popular in the 19th century, were designed to allow the occupant to ring a bell after burial just in case. Historically, brain death naturally followed the absence of cardiac and respiratory function. Cardiopulmonary resuscitation and mechanical ventilation uncovered the possibility of neurologic death separate from other organ systems. In 1968, faculty members at Harvard first described brain death criteria that combined clinical findings with a loss of electroencephalogram signals.
Brain death determination continues to have uncertainty. It is conceivable that a tiny remnant of brain function may elude detection. As functional brain imaging advances, we will likely detect brain activity we thought absent. How comfortable are we with the possibility that some deep brain function might still be present in those we call brain-dead? Society does need a bright line between life and death because death is necessary for many things. Death is the end of a contract. It marks the moment for the distribution of estate assets and the payment of life insurance. It permits the living to move on. It is the end of the rights of the living. Dead bodies still have something akin to rights, but it mostly concerns the prohibition against defiling a corpse.
To put it plainly, this xenograft kidney experiment placed an organ into a dead body. Brain death up to now was used as a source of viable organs, not a host for other organs. In the current use of a brain-dead body, organ retrieval happens quickly, followed by a funeral. Using dead bodies as xenograft organ hosts is something new and challenging. Fully dead corpses are used in medicine for the study of anatomy and can be preserved for extended periods of time without decomposition using chemical tissue fixation. In this case, vital organs kept the dead body warm and functioning, apart from the dead brain. The dead body occupied a space in an intensive care bed and received medical care of the sort needed to keep it working. Current advance directives contain no language for such postmortem wishes. Individuals may sign up to be organ donors in advance of death, but donating one's entire brain-dead body to host a xenograft transplant is without clear precedent.
Rationing and Animal Rights
Distributive justice, or rationing, is the frustrating and dangerous reality of current organ donation. For those desperately seeking organs, we ask them to pass a character test of worthiness. No other branch of medicine requires a patient to pass such a test. Our capacity to judge worthy character is fraught. For the donor, this act is perhaps a desire to find meaning from one's death or in the case of a living kidney donor, the risk is perhaps the unreasonable expectation of gratitude or enduring friendship. This xenograft idea promises to end rationing but drives rapidly past the idea that the organ is taken from a pig, itself a living creature with rights. We accept the slaughter of animals for clothing and food, or simply for our amusement. We may, after careful and thoughtful consideration, expand animal husbandry to include organ removal. However, as our knowledge of animal sentience improves, the justification to use animals as a means to our ends becomes a harder sell.
A Need for Clear Policy
If dead body experiments continue, they will need to fall under broad and careful policy. Dead body experiments can never house the dead next to the living in an intensive care unit. Dead bodies can never use scarce resources, both material and personnel, that would otherwise be used for the living. Brain death, as a criterion for death, must constantly reflect what is known and justify why the possibility of a wrong brain death diagnosis can be set aside if a xenograft experiment, or any other experiment, is at stake. Permission to use one's body in a prolonged fashion after death must be included in pre-death conversations. The risks of such things need to be established as well as the law. What is the official date of death? The use of animal xenografts must confront and justify why animal rights are not relevant. Utilitarian ethics asks us to accept that the greatest good, in this case a possible increase in kidneys available for transplant, not only exceeds the possible harms, but effectively nullifies all other concerns. Such logic is at the heart of our worst inclinations, not our best.
Joel Zivot, MD, MA, JM, is an associate professor of anesthesiology and surgery at Emory University School of Medicine in Atlanta. He is also a senior fellow in the Emory Center for Ethics, and has held an adjunct appointment in the Emory School of Law.