Photograph by: Julie Oliver, The Ottawa Citizen

Canadian ethicist argues for need for legal definition of death

In a newly-released paper, one of Canada's leading proponents of the legalization of euthanasia and assisted suicide has argued that Canada has a "pressing need" for a law defining death and how it is to be determined, relating specifically to the issue of organ donation, reports Patrick B. Craine, LifeSiteNews.com.

Jocelyn Downie, health law expert at Dalhousie University in Halifax, published her paper online on July 9th in the Canadian Journal of Anesthesia. She contends that, while Canadian law requires a donor be pronounced dead before his organs may be removed, there currently is no federal law defining death, and provincial laws are sorely lacking.

"We need clarity around this because it is critically important for a host of reasons," she told the National Post. "It's only after the declaration of death that certain things can happen: We can take your organs, we can bury you, we can do an autopsy ... we can trigger all sorts of things around your property."

Downie is concerned that the lack of a federal law establishing when death occurs "places health care providers in a situation where they may face civil or criminal liability for procuring organs prematurely, even in cases where they are following established protocols."

"She's probably right," commented Alex Schadenberg, Executive Director of the Euthanasia Prevention Coalition. "The question is, why is she bringing this up?"

Questioning her motives, Schadenberg told LifeSiteNews.com that he believes Downie is not merely after a legal definition of death, but one that would enshrine a faulty conception of death, which would affect all end-of-life issues. "Because of her support for euthanasia and assisted suicide," he said, "I suggest that it's more likely that she wants to redefine death in Canada.

"It's easier to take an organ from somebody if you define death in a different manner," he pointed out, "because they're not quite dead, but you call them dead. Well that also affects issues like euthanasia and assisted suicide."

While the criterion of 'brain death' has tended to be the prevailing definition, there has been a growing tendency to define death as 'cardiac death'. The procedure used in this case is known as non-heart beating organ donation (NHBD), and was first practised in Canada at an Ottawa hospital in June 2006. In the procedure, once a doctor has decided that a patient has no hope of recovery, the doctor removes the patient's ventilator and waits for his heart to stop beating. After his heart has stopped for a specified length of time, depending on the established protocol (often five minutes, but perhaps two or ten minutes) death is pronounced and a surgical team enters to harvest the organs.

In a July 10th commentary on LifeSiteNews.com, LSN's medical advisor Dr. John Shea, M.D., spoke out against NHBD, saying that the procedure allows the doctor to kill the organ donor in order to harvest his organs. With the right treatment, he said, it has been "demonstrated that a person can survive cardiac arrest for an average of 72 minutes."

"It is now clear that the use of cardiac arrest as a criterion of death is no longer tenable," he said.

According to Downie, while Prince Edward Island and Manitoba have limited definitions, the majority of Canadian provinces currently leave the definition of death up to "accepted medical practice," which she argues is unsatisfactory. She contends that this "accepted medical practice" has included 'brain death' in Canada for the last forty years, stemming from a 1968 report of an ad-hoc committee from Harvard Medical School, which advocated brain death as the criterion for death. "Since the publication of the Harvard Report," she says, "determining death according to neurological function ... has been widely accepted in Canada and in other countries."

Dr. Shea, however, also criticized the Harvard Report in a September 2007 article in Catholic Insight magazine. In that article he points out that the report adopts oxymoronic thinking in its advocacy of brain death, saying that a person may be practically dead even if not actually. "[The Harvard report] implied that brain death should be regarded as death," he said, "because it inevitably leads to death and that the person in irreversible coma is, for all practical purposes, if not in reality, dead. Untold semantic confusion has followed this oxymoronic notion."

In her paper, Downie recommends that death be defined as "the irreversible cessation of the functioning of the organism as a whole." Her use of the term 'irreversible' could include situations where consent was given to not resuscitate the patient and to harvesting the patient's organs. The criterion for determining that death has occurred should be, she proposes, "the irreversible loss of the brain's capacity to control and coordinate the organism's critical functions."

Schadenberg says, however, that this definition of death could not actually be real death. "If it's the loss of control of the brain over the other parts of the body," he said, "that means the brain's not dead. It's just nearing death."

Downie does hold that NHBD is currently inconsistent with the law, saying that it does not constitute "accepted medical practice." In tentative agreement with Dr. Shea, she says, "the possibility exists that some NHBD donors may not be legally dead under prevailing Canadian laws." Downie's recommendation would not enshrine NHBD in Canadian law, though it would become legally permissible, she says, based on the law of consent - meaning that, if someone asked not to be resuscitated they could have their organs harvested after 'cardiac death'.

New iPad POLL! VOTE NOW! Will you buy new iPad?

TAGS: Canada ethicist definition of death Jocelyn Downie euthanasia assisted suicide

[07/21/2009]

Print Version