Brain death and the ethics of transplantation

Antonio Pardo, 1997.
department de Bioética, University of Navarra.

I. Introduction

II. Brain death and human death

a) Theoretical justifications

b) Reasons for the crisis

(c) Protocols for non-heart beating donors

III. Anthropological presuppositions

a) What is living?

b) Man, a somato-spiritual unity

c) Respect for the human body

d) Organ donation

IV. Ethical presuppositions

a) Analysis of the moral act

b) Intentionality and materiality of the acts

c) A practical application

V. Ethical analysis of the donation

a) Healthy donor

b) Brain dead donor

c) Brain-injured donor

(d) Stop-heart donors

e) Sale of organs

VI. Conclusion

Notes

I. Introduction

Since the beginning of this decade, there has been an increasing number of bibliographical references rejecting the concept of brain death, introduced in the 1960s, as equivalent to human death. The immediate consequence of this rejection is to raise doubts about the ethical correctness of the usual protocols used to harvest organs from patients in a clinical state of "brain death". These doubts have been added to those raised in recent years by "non-heart beating donor" protocols. This article aims to examine the ethics of organ harvesting from brain-dead patients, accepting that brain death is not equivalent to human death, and will make some marginal considerations about non-heart beating donors.

II. Brain death and human death

The concept of brain death as equivalent to human death was formulated in the 1960s as a consequence of technical advances in the treatment of patients with severe brain injuries. Before the introduction of assisted ventilation and intensive care units, these injuries were immediately followed by the death of the patient, due to a well-known pathophysiological mechanism: the injury causes cerebral oedema and increased intracranial pressure; if the latter is very high, it ends up preventing blood supply to the brain, and a total cerebral infarction occurs.

The survival of these patients thanks to new technical means, even if not very prolonged, led to a redefinition of the diagnosis of death. In the past, death was diagnosed by observing cardiorespiratory arrest and, after a time, was confirmed beyond doubt by signs of bodily decomposition. Now, there was a need to determine the exact time of death as soon as possible, especially in view of the first transplants.

In medical circles, a pragmatic consensus was soon reached: total cerebral infarction, or brain death, with an unfortunate short-term prognosis despite all treatment, was tantamount to human death. Therefore, the organs of patients in this state, supposedly already dead, could be taken for transplantation, without any moral position .

In some circles, years later, the attempt was made to equate human life with the presence or absence of manifestations of sensitivity or rationality: these were the various definitions of "cortical death" and "neocortical death" which correspond to the destruction of the cerebral cortex, or of a particularly significant part of it; this partial destruction of the brain, with the consequent loss of sensory and intellectual capacities, would now be the criterion of death, and not the destruction of the whole brain. Although the equivalence neocortical death = death of man has been severely criticised, and the discussion of the problem has caused rivers of ink to flow, it will not be the subject of consideration here. From the subsequent argumentation it will be clear why we do not accept it.

a) Theoretical justifications

The acceptance of brain death as equivalent to human death was not merely a pragmatic question. From the outset, a theoretical justification for this clinical convention was attempted. The following three arguments seem to be the most solid among those put forward in the medical literature.

a) The central nervous system is an integrating organ of the whole organism. When it fails completely, as happens in total cerebral infarction, the body tends spontaneously to disintegrate, the inexorable course of which can be slowed down with financial aid of technical means. But what we have before us is a corpse with an artificial prolongation of the functionality of all or part of its organs, not the life of a man1. The state of brain death, by destroying the mechanisms of somatic integration, which runs to position of the central nervous system, would be equivalent to the death of man.

b) Death is the loss of bodily functions. Physiologically, this is the same in the state of brain death as in death from other causes, since all other bodily functions eventually fail when there is total cerebral infarction. Therefore, the state of brain death can be considered as death of the patient, even if some of his organs are kept artificially functioning with financial aid of devices. This position, which Shewmon2 calls somatocentric, would be the systematisation of the common medical opinion, mentioned at the beginning of this section.

c) Death is the loss of higher neuronal functions. Normal" death is such because it includes brain death. Therefore, brain death, even if it does not include the death of other organs, is human death.

Similar theories to the latter are those that root death in more functional issues, such as the one that holds that death would be the loss of the capacity for knowledge and relationship. Interpretations that associate death with only cortical or neocortical lesions do not seem sustainable, as we will argue later, even if only marginally.

b) Reasons for the crisis

Within the scientific field, the equivalence between brain death and human death began to be seriously criticised when clinical cases gradually appeared in which the "survival of the deceased" lasted for months or even years3. It was not logical that a corpse could remain so long without decomposing. It was one thing to admit a precarious state, of short duration, between the death of the patient and the decomposition of the corpse, always with financial aid very sophisticated technique. It was quite another to think that corpses could be kept alive.

In addition, there are clinical cases of children with very severe hydrocephalus who, despite the extreme cortical atrophy caused by this condition, are conscious and maintain a certain relationship with the surrounding environment, with coherent but very limited perception and reaction4.

Apart from the reasons mentioned above, and others that have circulated in the medical literature, the acceptance of brain death as the death of the person, taken to its ultimate consequences, implies accepting a series of anthropological and philosophical concepts that seem untenable. I will limit myself to two of them, which seem to me to be decisive.

Admitting "brain death" as equivalent to human death implies accepting some subject dualism. Indeed, if there can be human death (i.e., cessation of the vital activity of a body), without in fact manifesting the cessation of many of the vital activities of the body, it seems to be admitting that human living is something foreign to corporeal living. The soul, the personality (personhood) or the self-consciousness (self), would be something added to the body, which, moreover, is connected to it by means of a specific organ, the brain. The person would really be his soul (or spirit or self). The failure of the connecting organ due to total cerebral infarction would separate the soul from the body. The resemblance of this conclusion to Descartes' position is obvious: man is a mixture of res extensa and res cogitans, which would be connected in the pineal gland5.

The second philosophical difficulty can be stated as follows: the body of the brain-dead patient continues to have an integrated organic activity, albeit with some, or much, technical financial aid , analogous to how other sick people continue to maintain their organic life with financial aid of drugs or devices. But every living being belongs to some species. The brain-dead patient, if dead, is not a man (a man is, by definition, a living man; a corpse is not a man, but the remains of what was a man). So what species does he belong to? All biological data point to the fact that he belongs to the human species. Therefore, the most plausible deduction is that he is a living man, and that the state of brain death is not equivalent to the death of man6.

Underneath all these discussions, there seems to be an error in the concept of life. While for other living beings we readily admit that living is integrated organic activity, organic living in short, in the case of man, the concept of brain death breaks this equivalence, creating many insurmountable conceptual difficulties7.

(c) Protocols for non-heart beating donors

Similar ethical issues arise with regard to the use of the non-heart-beating donor protocols. These protocols were introduced in the early 1990s to obtain a greater number of organs for transplantation, as brain-dead donors do not meet the needs of those awaiting transplantation as the only solution to their health problem. This new technique aims to immediately obtain organs from patients who have just experienced cardiac arrest secondary to another disease, thus ensuring that the organs taken (usually kidneys) do not deteriorate, which would be the case if the protocols used for brain-dead donors were employed.

One of the ethical difficulties that have been raised with these protocols is the doubt about the actual death of the donors, as it is generally accepted that transplantation can only be carried out in an ethically correct manner if there is certainty of the donor's death. This certainty is more than doubtful in the case of protocols that allow only two minutes to elapse between the moment of asystole and the start of organ harvesting. Those who favour the legality of protocol claim that, after two minutes of asystole, the brain lesions are total, and there is an equivalence with the state of brain death, although, due to time constraints, it is not possible to carry out the relevant tests that would determine whether this is the case. Others, on the contrary, claim that these patients would be recoverable if resuscitation manoeuvres were attempted but not carried out because they do not make sense in their case (medical DNR orders have been given). As they could nevertheless give result if they were performed, one has to conclude that they are indeed alive, thus violating the basic rule: the donor must be dead8. As a consequence, it seems reasonable to require a longer period of asystole (at least 20 minutes), a period which, with a modification of protocol, also makes it possible to obtain organs in good condition and to provide good clinical results.

Although it is not the main topic of this study, which deals with the ethics of organ harvesting from brain-dead patients, the protocols of the stopped-heart donor show many similarities with it, especially the Pittsburgh protocol , where only two minutes are waited before organ harvesting. For this reason, we mention this technique, and will include its ethical review, albeit a brief one, at a later date.

III. Anthropological presuppositions

Before entering into the ethical study of the question, it is necessary to specify a series of anthropological questions that will serve to correctly frame the problem we are studying. Specifically, we will specify what it means to live and die, how man is constituted, and the initial consequences for donations and transplants.

a) What is living?

A complete answer to this question would require a whole treatise on philosophy. However, even if only in a very summarised and therefore incomplete form, it is useful to point out some of the main ideas taken from Aristotelian philosophy.

Living is the way of being that characterises certain beings, which we call living. These beings are identified by moving themselves; here we take "moving" in a broad sense, not only in the sense of locomotion: nourishing, growing, reproducing, and so on. Some living beings have many kinds of activities of their own (animals, especially those higher up the phylogenetic scale), while others have very few (plants).

Even if a living organism is not developing any apparent movement (it is not feeding, growing, etc.), it still has an internal activity, as physiologists are well aware. Its organism develops a set of active, energy-consuming processes that maintain its structure and the dynamic equilibrium of its internal environment, maintaining it with a certain independence and differentiation from its external environment. A living being is characterised by the fact that it maintains homeostasis9. This process is active because the external environment presents it with obstacles that must be actively and continuously overcome. When these difficulties overwhelm the organism's capacity to counteract them, the living being dies; it then loses the identity of the internal environment, whose conditions are equalised with those of the external environment: its temperatures are equalised, proteins are broken down, the various organic compartments and their contents dissolve and homogenise with the external environment, etc.

The set of organic processes that maintain homeostasis is not carried out in isolation in one part of the organism: it depends on many functions of various organs, which interact with each other to achieve the final result , either by means of nervous connections, or by means of products discharged into the blood, or by purely physical processes, etc. The observable maintenance of life (homeostasis) is therefore derived from an integrated activity of the organs of the living organism.

In a living being, an organ can fail partially or completely without resulting in death. This happens with the amputation of a limb, or with the destruction of a non-essential organ by disease. These failures allow the integrated activity of the other organs that are still functional to continue. Moreover, doctors can replace the functions of fundamental organs when they fail when, for example, we administer the hormone they produce, or supplement or palliate their function in some way, as happens with dialysis in patients with kidney failure. It sometimes escapes us that this substitution is much more frequent than it seems, because we only focus on the most technically complicated substitutions: crutches or glasses are also a substitution or financial aid for deficient organ functions.

Obviously, all patients in whom we replace some organ function are alive as long as they maintain their homeostasis. Patients on a dialysis programme or those with a pacemaker are not fixed corpses, but patients with some deficient organ function replaced. It follows that patients with brain death (total cerebral infarction) have a very important organ destroyed, many of whose functions we cannot replace technically (sensitivity, for example). However, with a technical financial aid , sometimes not at all complicated10 , they can still maintain their homeostasis for a long time. Brain-dead patients are alive, even if they are seriously ill.

Man is, among the animals, a special case. But man is an animal. Therefore, the criterion of death that applies to animals also applies to man: death is the irreversible loss of the integrated organic activity that maintains homeostasis. The problem inherent in this definition is very difficult for the contemporary scientistic mentality to admit: the exact moment of death cannot be known. A diagnosis of death can be made. But knowing the exact moment of death would imply that we know exactly when a human organism can no longer recover the integration of functions that are breaking down. It would be very interesting to know this in order to determine whether we should stop resuscitation manoeuvres; however, in situations such as this subject, we must be guided by clinical experience, with all its prognostic uncertainty: it is not uncommon for a patient we thought was dead to recover, or for another patient we thought we were resuscitating to fail to recover without problems.

b) Man, a somato-spiritual unity

The integrated somatic activity of a living being is directly related to what philosophy calls the soul. Again, scientistic prejudices work against this assertion. Somehow, scientists usually admit that bodily activity is explained by physical and chemical laws, and abandon the question of the soul as a useless superstructure.

On closer examination, however, it can be seen that physical and chemical laws establish morphological, mechanical or quantitative correspondences between the various phenomena occurring in both the inanimate and animate worlds. But the finding of a possible effective quantification for the purposes of technical manipulation, or for the elaboration of models that fit reasonably well with the observed reality, leaves unexplained a part of reality: its activity or movement, otherwise obvious. Perhaps so obvious that scientists of the last centuries have not felt the prurience to try to explain it.

Philosophers, for more than two and a half millennia, have felt this curiosity, and have explained this fact in terms of act or activity: if something sample has movement or activity, it is because it has within it a source of activity that produces this movement, which is called soul in the case of living beings11. Of course, this activity is linked to the subject, not as a kind of different immaterial reality, hooked to it in the vitalist way, but in an intimate and inseparable way: a living being is subject with intrinsic activity, subject animated, with a soul. All activity and movement derive from it. In the case of the living, the maintenance of homeostasis, the nutritive and growth processes, locomotion, the various external sensations and their internal integration, which allows us to grasp the movement, the figure, to feel pleasure or displeasure, etc.

The soul of man, in addition to the above-mentioned activities common to animals, is responsible for other activities peculiar to him: intellectual knowledge and decision. The operations described in the previous paragraph are carried out in a material way: for example, we see with our eyes. Seeing is a physical activity that takes place in the eye, but seeing is also an activity - and therefore not explicable only in terms of physical, chemical or biological models. Man performs many of these operations Materials, in the same way as the animal. However, he does not understand and will with bodily organs: human intelligence is something "separate" from the body12.

That this activity takes place "separately" from the body does not mean that the soul of man is not the act of the body. The human soul is spirit (it knows and decides) but it exists united to the body, for it is, at the same time, the activity of the body. This double facet of the human soul ("upper part" and "lower part" of the soul) allows us to affirm that man is an incarnated spirit or, to use the expression, a "spiritualised body". And the same is true from the point of view of the acts he performs: although it is perhaps an oversimplification, it can be said that man understands in his feeling, and acts with his will. He does not have pure sensations, but understood sensations (we men do not see "green", but we see, for example, "a cedar" - the species understood with sensation), and he does not have pure decisions, but passionately acted and felt decisions. Undoubtedly, the interaction of animal and spiritual aspects is much more complex than what we have just mentioned13. But this sketch allows us to make a basic statement: although we can distinguish between Materials, psychological and spiritual aspects, man is a unitary reality.

Therefore, if there is integrated organic activity in it, there is a soul, and this is, like every human soul, a spiritual reality integrated with the body. And the criterion for determining the departure of the spirit from the human body is not the apparent cessation of spiritual operations, but the disappearance of integrated organic activity, i.e. the medical diagnosis of death, according to the definition of death mentioned in the previous section . From this statement it is easy to deduce that all attempts to define human death by psychological acts (disappearance of self-consciousness or relational capacity, etc.) or by concrete organic lesions associated with its loss (brain, cortical or neocortical death) are meaningless and incur serious contradictions.

c) Respect for the human body

The fact that man is a complex and at the same time unitary reality does not imply that all its elements are of the same subject or value. Its various "parts" are in a mutual relationship, in which one is at the service of the other. Thus, the body is at the service of the spirit, it is its instrument; from this it follows that we call "organ" to the sets of tissues with a specific function; in Greek, this word means precisely instrument: the legs are the organs (or instruments) of locomotion, etc. The body is an ensemble of organs, an organism, which is an instrument of the spirit, but forming a unity with it. It is not a separate instrument, as Plato claimed (man would then be the soul, and the body only the prison of the soul), but a united instrument. Man is body, soul (corporeal activity) and spirit (incorporeal activity), which form a unity14. These "components" are in a hierarchical relationship, in which the body and its activity are at the service of the spiritual activity.

It is because of their spiritual activity that we call people persons. This inner activity may or may not develop into concrete acts, depending on the circumstances (waking or sleeping, health or cerebral infarction, coma, etc.); but it always exists: as we have just seen, every living human being has a spirit. The presence of the spirit establishes a radical difference between humans and animals. An animal is limited to living its organic life with the instinctive operations proper to its species, and any animal is equivalent to another specimen of its species. Man, on the other hand, has an individual originality because of his spirit, which enables him to perform free, not completely conditioned acts, as is the case with animals. Thus, even if a man can be replaced for certain functions or jobs, he can never be replaced in his personal originality: a son or a deceased husband cannot be replaced.

From this follows,15 at least in part,16 the basic moral principle of respect for the individual person: personal originality deserves proportionate recognition by others. It is not appropriate to want people to disappear and, along with them, their original actions; on the contrary, the appropriate attitude towards them should be respect, i.e. the recognition of natural obligations that arise in the presence of others. This respect is the reason for all medical work: to help those affected by the illness to continue living their original, personal life17.

The opposite pole to the attitude of respect for personal dignity is the desire to make a person's vital originality disappear, which is achieved by interrupting his organic life, since man is a unity. The fifth precept of the Decalogue, "thou shalt not kill", really means: you shall not willfully wish the disappearance of other people's actions in the world, because they deserve your respect, because they possess an intrinsic dignity (or value) superior to any other creature. Moreover, there is an obligation to encourage that personal, original and unrepeatable performance of others: sociability, and mutual financial aid for personal enrichment, is the positive facet of the precept that forbids killing.

For what follows, it is important to note that the respect due to the physical life of others, to their body (or, in other words, the dignity of the human body), is a derived respect (or dignity): what deserves respect in and of itself is the person because of his spiritual activity and, derivatively, the human body deserves respect because of its unity with the spirit. The human body is not in itself a supreme value, but is so because it is the body of a person, a spiritual being, original and unrepeatable. This clarification will later be fundamental for the ethical analysis we intend to carry out.

d) Organ donation

A person may, out of a desire to do good to a sick person, express a wish to donate one of his or her organs. This donation is not submission of a thing that one possesses, since the human body is a constituent part of the person. It is, rather, submission of oneself. This submission is completely different from labour or other services that man can provide; services can be contracted for and, to a certain extent, their value can be measured with money, and this value is intended to be reflected in the labour contract18 . However, the value of the person cannot be measured with money, and therefore the part of his body, i.e. his person, that submission donates cannot have a market value. The human body or its parts cannot be bought and sold. Donation is a gesture of altruism.

Two consequences follow from this. Firstly, donations must always be free of charge, because it would always be an injustice to try to compensate them financially: the donor will always have given more than he receives. This does not preclude compensation for the time lost, for the inconvenience suffered as a result of the donation, or to try to mitigate its effects. submission Thus, it is common and reasonable for blood donors to receive some food and drink to help them recover quickly, for donors of other organs (e.g. bone marrow or a kidney) to have their hospital expenses paid for, etc. For this reason, payment for blood and other organ donations is prohibited in European countries, which unfortunately is not the case in other countries.

Secondly, the decision to donate must always come from the donor, it is non-transferable. There can be no such thing as delegated donation. When relatives are asked about donation, the aim is to find out whether the potential donor has previously expressed a willingness to donate; they, who know the donor best, are the best people to inform on this point. They are not being asked to donate to someone else. The person is no one's property, and cannot be used at the discretion of others. It also follows that neither embryos, nor foetuses, nor incapable persons should be donors: they cannot express their will to donate, and there can be no appropriation of their persons, however good will may exist. There are further objections to the taking of organs from embryos, foetuses or anencephalic children, which we shall see below.

Often, however, following only what is required by law, relatives are asked to donate the patient's body, and the patient's will is only taken into account if he/she has expressed his/her refusal to donate organs; for the reason expressed in the previous paragraph, it seems advisable to modify the procedure to obtain consent for transplants, perhaps at the same time establishing a system that allows recording the will to donate by taking advantage of the medical interview necessary for some other health intervention.

Obviously, this way of arguing has nothing to do with the apparent equivalent that can be found in Anglo-Saxon bioethics, which follows the principles of autonomy, beneficence and justice. According to these principles, if there has been no expression of the will to donate, the patient's autonomy would not be respected and informed consent would be absent; therefore, it would be wrong to carry out the transplant. This argument, of a liberal nature, does not take into account that the human body is a personal body, a somato-spiritual unit; it thinks, rather, that the body is a subject, property of the person, who can dispose of it at will, a question which, in the light of the assumptions seen, is not acceptable. Furthermore, it admits the consent given by third parties in the case of incapable donors (donation of embryos, for example); although we will see this question in more detail, it is clear from what we have seen that this claim is meaningless, as no one can be the owner of another person.

Normally, in order to avoid even the appearance of taking advantage of the brain-dead patient, the closest relatives (husband or wife, children, parents) are also usually asked for permission to carry out the transplant ( apply for ), and the transplant is not carried out if there is opposition from them. The legislation of some countries, such as Spain, in an attempt to encourage transplants, establishes that everyone is a donor unless their will to the contrary is stated. Despite this rules and regulations, doctors always ask the patient - if it is possible due to their condition - or their relatives, and do not carry out the transplant if there is no express will to donate. In this way, they show more sense than the legislation.

IV. Ethical presuppositions

Having seen the anthropological presuppositions of organ donation, and the initial ethical consequences, it is now time to examine the method of ethically evaluating human actions and then to apply it to the actions of the donor and the transplanting doctor in the different situations that may arise in clinical practice.

a) Analysis of the moral act

In order to analyse the goodness or badness of human acts, it has been accepted for seven centuries, starting from the systematisation made by Thomas Aquinas, that the following factors must be examined: moral object, end and circumstances. For an action to be good, the moral object (what is done) must be good, the end (what is intended) must be good, and the circumstances must not make what is done bad. However, this method of analysis, which is easy to apply in simple situations, becomes complicated in situations with many circumstances and unintended effects; to complement it, accessory rules appear, such as, above all, the principle of the double-effect action.

Here, for the sake of simplicity and clarity, we will abandon the classical method of analysis in favour of a more convenient equivalent. Its detailed equivalence to the classical method, and its better virtues for the analysis of actions, have been the subject of a previous publication19. According to this new method, for an action to be good, there must be sufficient foresight, good intention, good decision-action, the tolerated effects (if any) must be proportionate to what is intended, and the moral side-effects (if any) must either be proportionate to what is intended, or they must be minimised, following the relevant rules and regulations . The coincidence of all these factors can only occur if the agent's will is good and has therefore acted well.

As good foresight is a prior factor, relatively independent of the others, we will assume it to be sufficient in all cases, in order to help simplify the ethical analysis. Although not mentioned below, this implies that both doctors and donors must be adequately informed about the fundamental aspects of the procedure to be undertaken, its risks, chances of success, etc. And in the case of doctors, they must be sufficiently familiar with the various aspects of the technique they are going to use, the most effective variant in that particular case, solutions to common complications, etc.

b) Intentionality and materiality of the acts

It is important to note that the analysis of the moral act focuses on its intentional aspects, i.e. on the acts of the will insofar as they refer or point towards external realities20. Moral study is not concerned with such external realities. The analysis of the materiality of an action cannot provide definitive moral results, because it does not necessarily provide information about the inner acts of the agent. When we speak of intention, decision-action and effects, we do not speak of "the result pursued", "the materiality of what is done" or "the materiality of the effects". We are talking about the inner acts of the will that intentionally link (from the Latin in-tendere, to aim at) with these physical facts: the inner act of intending, the inner act of deciding or the inner act of tolerating. Moreover, physical facts, taken in isolation, cannot even be described as human actions: only in combination with acts of the will can a reasonable description of them be reached. Thus, walking is not putting one foot, then another, etc., but physically doing that together with the decision to take solace. Seeing a person walking does not make it possible to know whether he is walking, going to buy something, etc.: the voluntary aspects of the action do not necessarily manifest themselves together with its physical aspects.

We can obtain clarifying data for the ethical analysis of transplantation by applying the same reasoning to an action that causes the physical death of a person. The mere physical fact of death as a consequence of the action does not necessarily imply either moral goodness or moral evil on the part of the agent. It depends on what is in his will. If what is in his will is the decision to kill, that death will be a homicide, and it will be a bad action, but only because there is a bad decision, not because the physical fact of death qualifies the agent as morally bad. If what is in his will is, for example, the decision to actively resist against an unjust aggression, the action can be good: the intention would be to avoid death, the decision would be to actively resist, and the tolerated effect would be the death of the aggressor; if the threat was really mortal, this tolerated effect is proportionate to the intention, and the action, globally considered, is good even if, obviously, it is very hard to take, because the death of the aggressor is voluntarily accepted (tolerated).

The same can be expressed in another way: moral precepts are precepts that concern the will, not the material reality of the action. The prohibition against killing does not prohibit "physically causing the death of another person". It states that it is forbidden to "directly will the death of another person"; that is, it forbids intending or deciding (and consequently executing) the death of another. This precept allows tolerating the death of a person, as long as there is a proportionate intention, as we have seen. The reason derives from the different subject connection of the various voluntary acts with reality. The voluntary acts of intending or deciding refer directly to what is wanted; therefore, for them, the prohibition is always absolute. However, the act of tolerating does not refer to reality in this direct way, and can occur in a good will if the intention is for a greater good, as we have shown above.

It follows that the prohibitions "Materials" admit of exceptions, as jurists are well aware, for law is concerned with external actions. Moral prohibitions, on the other hand, admit of no exception: it will always be wrong to want certain things.

c) A practical application

Triage in emergency medicine is an example of the application of this way of thinking in routine clinical practice. Basically, this practice establishes that, in the event of a catastrophe or accident with many people affected, the doctor must first make a rapid assessment of the condition of the patients and then treat those who, needing specialised financial aid , can be saved with the use of available resources, leaving untreated others who could also be saved, but who would consume many resources or almost all his or her time available. This practice may seem harsh, but it is ethically sound.

If the doctor simply treats the first patients he encounters, if these are the most serious, they will consume all his time available, and he will not be able to treat others who would be easily recoverable. The result is that many of those affected die. The ethical analysis of his actions would be as follows: he intends to save the patients he treats (good); to do so, he treats the first patients he finds, whatever their condition (good decision), at the cost of letting others die that he could have treated if he had let the more serious ones die (tolerated effect not proportionate, as he loses many lives to save a few); his actions, taken as a whole, would be bad.

If, on the other hand, you select the most hopeful patients before taking action, they will survive longer. The ethical analysis of his action will be as follows: he intends to save as many patients as possible (good); to this end, he selects and treats the most recoverable patients (good decision), at the cost of letting the most serious ones die (proportionate tolerated effect21 ), so that his action, considered as a whole, would be good.

This practice is a manifestation of the respect for people that should govern his actions, as we saw earlier. All the wounded deserve an attitude of financial aid on the part of the doctor; but the doctor chooses to treat some and leave others, because he will produce a higher yield: he owes it not to the first ones he meets, but to all of them. The doctor's refusal to treat others does not mean that he wants them to die (he does not try or decide to do so, which is forbidden by an absolute moral precept), but that he tolerates their death for the sake of more patients whom he can more easily get out of it.

V. Ethical analysis of the donation

Having seen the anthropological and ethical presuppositions, we are now in a position to move on to the analysis of transplantation. We will look successively at the donation of odd organs in the case of a healthy donor, in the case of brain death, in the case of other non-total brain damage, in the case of heart-stopping donor protocols, and the sale of organs, which is much discussed in the specialised literature, and which has raised B perplexity from an ethical point of view.

a) Healthy donor

A person may express a wish to donate odd organs to, for example, a loved one (parent to child or vice versa): it is not uncommon to find this proposal when there are very strong emotional ties. From an ethical point of view, their action is to donate something of themselves (good decision), for the health of their relative (good intention), but at the cost of their death (tolerated effect not proportionate). Therefore, the donor who acts in this way is acting wrongly. The doctor who agrees to perform such an operation would be trying to save the life of the recipient (good intention) by performing the transplant (good decision), at the cost of the donor's death (tolerated effect not proportionate), and would therefore also be acting wrongly. At first glance, written request, it may seem that there is a proportion, since two equivalent things are equated, the life of the donor and the life of the recipient. However, this is not the case, since it is certain that the donor will lose his life as a result of his donation, while it is not certain that the recipient will save his; so to speak, an 80% chance of one person's life is attempted (or whatever figure is applicable to the case, depending on the chances of success of the technique), and the certain loss of another person's life is tolerated: there is no proportion22 .

This would not be the case for non-vital organs: donation of blood, bone marrow, a single kidney - taking the many necessary precautions - etc. The ethical analysis in this case would be the same as above, but the tolerated effects (discomfort for the donor, possible complications of the intervention, etc.) would be proportionate, and the willingness to tolerate them in order to save the life of the recipient would be good.

This second case is a further sample that physical injury does not imply contravention of the absolute moral precept of not causing harm to others. In fact, whenever we operate on a patient, the appearance is that we inflict physical injury. The reality (from a moral, not material, point of view) is that we are healing him (good decision), even at the cost of a few days of discomfort, and perhaps life-threatening postoperative and convalescence (proportionate tolerated effect).

b) Brain dead donor

As we saw earlier, in order to accept donation from a patient in a state of brain death (total cerebral infarction), it is necessary that the patient's previous will to donate be on record. This can be known, either because it has been expressed in a "living will", or by questioning relatives or friends. As mentioned in section on anthropological assumptions, the brain-dead donor is alive, although thanks to financial aid of the necessary technical means (respirator, medicines, etc.). Therefore, the ethical analysis of carrying out the transplant in this case will be exactly the same as in the case of the healthy donor who donates a vital organ: the transplant is followed by the death of the donor as a tolerated effect; however, there is a difference: this tolerated effect would be proportionate in the case of the donor being brain dead.

To clarify this point, we must refer to the anthropological presuppositions examined above. In the corresponding section , we saw that the reason for the peculiar value of man's bodily life, and for the respect due to it, is that it forms a unity with a spiritual activity, original and unrepeatable in its acts. The body is the united instrument which enables spiritual acts to have a presence in the material world. Respect for this spiritual originality leads us to respect bodily life, for the two are indissolubly linked.

However, the brain-dead patient, because of his injuries, cannot perform any new spiritual act. Injury to the sensory organs prevents understanding and decision, for, as we have seen, spiritual operations, though "separate" from the body, occur in intimate unity with it. If there is no sensation, there is neither intellection nor volition. Therefore, the absence of any neurological reaction to stimuli, associated with the corresponding neuronal destruction (total cerebral infarction), guarantees us that this person has lost all possibility of effective rational life. He or she still has a spirit, but due to the bodily lesions, it cannot perform its own acts.

For this reason, carrying out a transplant using donated organs does not deprive the donor of intellectual operations, his highest good and the main reason for the respect due to his person and, therefore, to his body. The latter has become an instrument that his spirit can no longer use; it is no longer of any use to the donor: in fact, if there were no will to donate, the correct medical attitude, except in some other circumstances, would be to stop the respirator that keeps him alive and let him die23. The bodily death that follows the performance of the transplant does not harm the goods that are the main cause of respect for life. It would therefore be a tolerated effect proportionate to the attempt to prolong life (with rational operations) in the transplant recipient.

Seen from a Christian point of view, we could say that the donor's possibilities as a viator are over. He can no longer perform either meritorious or non-meritorious acts in view of eternal life. Once he has received the Anointing of the Sick, which achieves the supernatural fruit of a possible last act of repentance, we bring him nothing by keeping him alive any longer. Therefore, both the action of removing the respirator if there has been no will to donate organs, and the action of performing a transplant with them if he had decided to donate them, are correct.

Obviously, this does not imply that the body of these patients is subject available : as we saw earlier, although spiritual acts are the most powerful reason for respecting the human body, the spirit remains in the body, even if it cannot exercise its own acts. In fact, because of this union with the spirit, even after death we do not consider the corpse as just any old subject : for its scientific use we need a specific will of donation; since pagan antiquity, we have paid funeral honours to the body of the deceased24 ; moreover, as Christians, we deposit this body, which has been a temple of the Holy Spirit, in a sacred place, awaiting its resurrection to life.

When transplants are carried out with the organs of brain-dead patients, the attitude of respect for human life does not disappear, but respect for the living body of the donor is overridden by another, respect for the life of the person awaiting the transplant. The appropriate attitude towards someone who is suffering and has a donor whose organs are no longer useful is to take the donor's organs, no matter how much respect the donor deserves.

c) Brain-injured donor

The situation is quite different in the case of donors with more or less severe brain injuries that cannot be qualified as brain dead (total brain infarction). For the sake of clarity, we could distinguish in this subject group of patients those with probably recoverable acute lesions or alterations (coma) from those with irrecoverable lesions or alterations (advanced dementia, persistent vegetative state) without outward manifestations of rationality.

In the first case (recoverable injuries), the ethical analysis carried out for the healthy donor would be applicable without further ado. The state of illness, which temporarily makes it difficult to perform rational acts, does not make the donor's death proportionate to the transplant. It is a life like anyone else's, with a horizon of personal actions after recovery from their state of illness. Neither the donation by these patients, nor the performance of the transplant, would be ethically correct actions.

subject In the second case (irrecoverable partial injuries), especially in the case of patients in a persistent vegetative state, it has often been argued that, as there are no longer any manifestations of consciousness, autonomy or personality in these patients, they would no longer be worthy of respect, or at least not with the same intensity as people who show a full Schools. Therefore, according to this way of arguing, in these cases the use of the patient's organs for transplantation would be justified, as their state would be comparable to that of brain death.

This point of view is not as far-fetched as it seems. Indeed, the term "person" comes from the Greek "prosopon", which designated the mask with which theatre actors represented in dramatic action. In a way, the concept of person implied, in its historical origin, the external manifestation of rationality. But we cannot forget that, since these historical origins, philosophy has discovered that, behind these external personal manifestations, there is hidden a source of internal acts, the spirit, with its acts "separate" from the subject. Even if the social or legal personality depends on the external manifestations, these are made possible by an internal source of original spiritual acts. For this reason, even if persons with serious injuries cannot communicate their intimacy, or cannot be active subjects of contracts, etc., they are still persons, because they continue to perform personal acts, even if only internally, and in a more or less restricted way.

When we consider today that being a person is necessarily linked to the manifestation of external acts, we tend to accept a very physicist version of the human being, forgetting the spirit, source of its own operations which, as such, occur "apart" from the body, as we saw in section of anthropological foundations. The impossibility of external manifestation of spiritual acts does not mean that they do not exist: man simply has damaged the organs through which these operations are manifested as voluntary actions. And a minimum remnant of sensibility is sufficient for these rational acts to be able to take place. These individual and unrepeatable rational acts are in themselves more valuable than the whole material reality, even if they are very poor acts; and this is so even without considering their supernatural facet.

Performing a transplant by taking as a donor a patient in a persistent vegetative state or with advanced dementia makes its rational originality (which has no external manifestations, but is extremely valuable in itself) disappear from the world. The ethical analysis of such an action would therefore be the same as performing a transplant by taking organs from a healthy donor: what is attempted would not be proportionate to what is tolerated.

Another line of reasoning, similar to the previous one, considers men who have not yet manifested any rational activity as equivalent to those who have lost it. This raises the possibility of taking organs from an embryo, foetus or anencephalic newborn for transplantation. A first ethical difficulty with all these possibilities has already been mentioned above: where there is no will to donate, there can be no dominion over the body of another human being. Therefore, as in these cases there can be no such will, performing transplants with their organs is ethically wrong.

In addition, other reasoning can be applied to reinforce this ethical judgement. Firstly, even if embryos and young foetuses cannot exercise rational acts before they have a minimum development of sentience, they have a whole panorama of personal life ahead of them, which we would destroy if we were to take their organs for transplantation. The tolerated effect of carrying out the transplant would not be proportionate to the attempt to save the life of the recipient. And secondly, as far as anencephalic children are concerned, they do have co-ordinated sensibility25 (and therefore rational acts), even if it is at a minimal and rudimentary Degree . Therefore, from an ethical point of view, taking their organs for transplantation would be practically equivalent to taking them from any healthy donor. At this point I have changed my previous opinion26 , which did not take into account all the anthropological assumptions set out in this paper.

(d) Stop-heart donors

As mentioned at the beginning, the ideas of this section are only a preliminary contribution to the ethical problem of organ harvesting from this subject donor. In this study it seems that two situations can be distinguished, depending on the time that is waited from the moment of asystole to organ harvesting: one, in which very little time is waited, to guarantee the good state of the organs, and another in which more time is waited to guarantee the irreversibility of the organic processes and to ensure the diagnosis of death. For the purposes of ethical analysis, the difference between the cases in which an asystole time was waited and those in which no total asystole was waited for before removal and only an apnoea time was waited27 is irrelevant.

If, as in the case of protocol in Pittsburgh, one waits only two minutes for organ removal, the analysis would be as follows: to try to save the life of the recipient (good intention), the transplant is performed (good decision-action), but with two tolerated effects, which would be as follows:

Firstly, with two minutes of asystole, the complete cessation of sensitivity is not guaranteed: it is common for patients recovered after a long period of cardiac arrest to report hearing everything that was going on around them; therefore, the cessation of rational operations is not certain either, and the transplant is carried out at the cost of annulling a period of rational life of the donor, and is therefore a disproportionate effect, as we have seen above. Applying the principle of double effect action, a study carried out on this situation gives an opposite result 28, as it considers, in our opinion erroneously, that the tolerated effect would only be the shortening of biological life, without referring to the shortening of rational life or the maximum value of the latter. However, as we saw in the anthropological prolegomena, the biological life of man, and the consequent respect for his body, is supported by the value of spiritual life; if this extreme had been considered, the result of the article would have been different.

Secondly, the protocol for rapid organ harvesting often forces the ventilator that keeps the patient alive to be stopped in the very operating theatre where the organs are to be harvested; and it always prevents minimal bereavement of the relatives. The effect of this protocol on relatives and ancillary staff is distressing: the patient is left with the impression that he or she is being scrapped and may be left without adequate sedative and analgesic treatment, family support may be neglected29 and nurses and ancillary staff may have the impression that they are applying the Dr Kevorkian machine30. It is possible that these effects may discourage future donations, thus neutralising the potential advantage of obtaining a few more organs from these stopped-heart donors31. However, in order to assess this issue in more detail, more clinical experience would be needed; the available data, especially after the modifications of protocol aimed at ensuring the well-being of the deceased in their last moments and the proper support of their relatives, do not seem to indicate much reluctance to procedure32.

However, even if the second-mentioned effects can be avoided (still a questionable issue), there remains the first one, the bringing forward of the patient's death, which does not seem proportionate, and makes protocol an ethically wrong action.

The solution to this problem is relatively straightforward: adopt a second form of protocol heart-stopping donor that ensures that organ removal does not cause the patient to lose any possibility of rational acts. The lengthened protocol to 20 minutes thus seems ethically appropriate, as it would avoid the two tolerated effects of the faster protocol .

It is interesting to note that in both cases the patient is alive, as in brain-dead patients. In the case of a non-heart beating donor, resuscitation manoeuvres are not performed because the clinical condition makes them a futile treatment. However, if they were performed, they would probably succeed in resuscitating the patient, although the patient would be left with severe brain damage due to prolonged hypoxia; in fact, there are protocols that, after a period of cardiac arrest, resuscitate the patient, who becomes a brain-dead donor33. In any case, the important issue is not whether or not the patient can be resuscitated (which he probably can be), but the ethical analysis of the action: whether or not it deprives the patient of rational acts. The moment of the patient's death is a secondary question and, as we saw above, almost impossible to know.

e) Sale of organs

If only as a guideline, we can also apply the same procedure ethical analysis to the buying and selling of kidneys for transplantation. If a patient has as a last resort resource for his or her health the purchase of a kidney, is his or her action morally justified? This is a situation that provokes conflicting opinions34. It is also possible to consider the sale of a kidney as the only procedure available way to obtain the necessary income for an expensive treatment for a child, for example, and there has been no shortage of arguments in favour of this option35.

Taking into account the anthropological clarifications made, the ethical analysis sample shows that the actions of the donor and the recipient are incorrect in both circumstances: both the buyer and the seller, even if they have good intentions and ensure that no irreparable harm will be done to the donor, equate the person with a monetary value. This equating is always unfair. When a person donates an organ, he or she is donating him or herself, and the person cannot be bought and sold. And we cannot properly speak of "voluntary buying and selling", in the sense of a free donation that will then receive money: it is precisely the need for money that forces the decision to donate, which is not then donating, but selling oneself. And, in the case of buying, the decision to buy reifies the person of the donor, who is reduced to an object with a market value, however much gratitude the recipient may subsequently pay him.

VI. Conclusion

Current transplantation praxis assumes, as a seemingly self-evident ethical principle, that the donor must be dead. This requires a definition of death that contradicts the basic philosophical reflection on the nature of life and death: brain death as equivalent to human death.

In this paper we have tried to show that brain-dead donors are alive, and we propose that the ethical principle of not causing death should be interpreted intentionally, not materially. Seen in this light, it is ethically correct to transplant their organs if they have previously expressed their willingness to donate. The current practice of transplantation is ethically correct, but its theoretical instructions seems to us to be wrong.

The recent protocols for heart-stopping donors fall into the same misconception: most probably, these donors are also alive. But under certain conditions, their organs can be taken for transplantation, provided there is a prior willingness to donate.

We think that contemporary theoretical confusion about the nature of death owes much, at least unconsciously, to the ethical rule of the dead donor, as it is difficult to see, at first written request, the ethical correctness of an action that causes, as a certain effect, the death of the donor.

Since the ethical analysis set out in these pages could lead one to believe that it is right to use embryos, foetuses, anencephalics, patients in a persistent vegetative state or with severe brain damage as donors, we have extended the analysis to such situations, which are unequivocally unethical at all times.