(A) How Should “Death” be Understood?

Although this question points to an enormous body of philosophical literature that is beyond the scope of this review, it bears on criteria for determinations of death and thus merits brief discussion. Youngner notes that any understanding of death must have three components: “a concept or definition of what it means to die, operational criteria for determining that death has occurred, and specific medical tests showing whether or not the criteria have been fulfilled.”Reference Youngner ⁴⁴ Considerable confusion surrounds the conceptual side of this triangle.Reference Youngner, Arnold and DeVita ⁴⁵ This is problematic, because the criteria for the determination of death will vary according to our conception of death. That is, the architecture of the conceptualization is hierarchical. A given concept suggests certain criteria which entail specific medical tests. Most conceptions of death focus on the loss of the integrative unity of bodily functions rather than the loss of function in its constituent parts. ⁴⁶ Beyond this, scholars who discuss criteria for determinations of death can be categorized as falling (very generally) into two camps, each of which understands death somewhat differently:

The view of death adopted in a given jurisdiction has important social ramifications. For example, it is important to know when to sign a death certificate, when the rights of a person cease to be, and when to enact the provisions of a will. Yet, because of time constraints inherent in cDCDD, the need for specificity with regard to the concept-dependent criteria for determination of death is acute. Minimizing ischemia time while ensuring accurate death determination is paramount.

Despite disagreement over how death should be conceptualized there is general agreement in the literature that death is a process, not a singular event occurring at a determinable moment in time.Reference Shemie and Gardiner ⁵² This observation of indeterminacy features in arguments which conclude that determinations of death, proclaimed at a point in time, have always been discretionary. ⁵³ If determinations of death have always been the result of social consensus, it seems that no amount of scientific evidence will resolve the debates:

Since unequivocal criteria for determinations of biological death are difficult to apply in the time-sensitive cDCDD context, some argue that we should be satisfied with social consensus and clinical practice standards for determining death.Reference Bernat ⁵⁵ With that said, the various “incompatible understandings of the meaning of death” employed in the context of organ donation raise worries that “death” — long thought to be a strictly ontological category — has been manipulated for utilitarian reasons with a view to increasing the organ donor pool.Reference Arnold and Youngner ⁵⁶

(B) What Criteria are Sufficient for Determinations of Death in cDCDD?

Answering this question requires that one first decide how we should understand “death.” Given disagreement on how to define death in this context, it is no surprise that there is also disagreement on how criteria for determinations of death in cDCDD should be constructed. It is at the level of criteria that most debates around death occur.Reference Dubois ⁵⁷ Here again the controversy surrounding the legitimacy of circulatory criteria for determination of death centers around the above-mentioned “irreversibility” debate and its attendant problems (sec. I). While there are strict (though somewhat variable) criteria for brain death, inconstancy in cDCDD protocols suggests that there is no comparable consensus on interpretations of the criteria for circulatory death.Reference DeVita ⁵⁸

The main concern over the determination of death based on circulatory criteria is that the required no-touch period may be insufficient to ensure “death” or irreversibility. As noted (sec. I), many authors worry that the 2-5 minute wait period is arbitrary or based on insufficient data. ⁵⁹ For some, this means that circulatory death criteria do not actually describe death.Reference Truog and Halpern ⁶⁰ While others argue that somewhere within 2-5 minutes is sufficient, ⁶¹ the (remote) possibility of autoresuscitation, as well as the potential for resuscitation with medical intervention, suggests that these authors are operating with a different conception of death (clinical death relying on “permanence”) than those who worry that the no-touch period is insufficient (biological death relying on a strict interpretation of “irreversible”).

In some jurisdictions, another concern relating to circulatory death criteria is that “[t]he post-mortem use of [normothermic regional perfusion] may retroactively invalidate the preceding death declaration by negating the necessary condition of permanent cessation of circulation.” ⁶² In other words, the use of medical technologies such as normothermic regional perfusion can retroactively negate the justification for the determination of death by restoring circulation to the body. ⁶³ Of perhaps greater concern is the risk of reperfusion to the brain and the consequent possibility of reanimation. ⁶⁴ In this way, the introduction of new technologies can confound death determination. ⁶⁵ Given these issues, there are three options: admit that criteria for circulatory death are flawed and revise them to accommodate objections; relax or abandon the DDR so as to avoid these objections; or circumscribe the use of normothermic regional perfusion in this context. As discussed below, given an apparent reluctance to abandon established criteria for death and the arguably inviolate tenets of the DDR, the permissibility of normothermic regional perfusion is a controversial issue in cDCDD.

(C) What is the Relationship Between Circulatory Death and Brain Death?

The relationship between the two established standards for declaration of death — neurological criteria and circulatory criteria — is unclear. While some argue that the two corresponding sets of criteria point to a co-extensive concept of death, this conclusion is not obvious. According to Youngner, Arnold, and DeVita, ⁶⁶ there are two ways that the relationship between circulatory and brain death can be understood:

Both of these views lead to conceptual and ethical worries. Opponents of (i) argue that the two established sets of criteria for determining death point to different kinds of death, something that should not be possible for a univocal phenomenon. ⁷⁰ While expert bodies and the oft-cited American Uniform Declaration of Death Act maintain that the criteria point to the same phenomenon, many are not convinced that they do. For example, a minority of critics hold that “brain death is incoherent in that it fails to correspond to any biological or philosophical understanding of death.” ⁷¹ This is because the body often retains some integrative unity after brain death, albeit with mechanical intervention.Reference Shewmon ⁷² More germane to cDCDD, the brain may retain some function after circulatory death for an unknown period of time. ⁷³ Perhaps more to the point, cessation of brain function following circulatory arrest may not be irreversible. ⁷⁴

There is growing consensus that (ii) is correct.Reference Manara ⁷⁵ As Dalle Ave and Bernat argue, “[t]hrough the pathway of circulatory cessation, the fundamental criterion of death is also the brain criterion.” ⁷⁶ Cessation of circulation is thus a proxy for brain death. This raises problems on two fronts. First, since the temporal relationship between cessation of circulation and brain death is uncertain,Reference Rady, Verheijde and McGregor ⁷⁷ some scholars worry that circulatory death criteria do not, in fact, ensure brain death in the context of cDCDD (at least not within the 2-5 minute no-touch period). ⁷⁸ If circulatory death is a proxy for brain death, and if brain death is what really matters, then a donor is not known to be dead at the point of organ recovery without confirming brain death, and nor is it certain that brain function has been irreversibly lost. Second, with the growing use of thoracic normothermic regional perfusion in some jurisdictions, fears that reperfusion of the brain could reanimate the donor and negate the justification for determination of death threaten to render impracticable the use of circulatory criteria as a proxy for brain death.Reference Dejohn and Zwischenberger ⁷⁹ These observations lead to suggestions that both sets of criteria need to be met in declarations of death in cDCDD. ⁸⁰

(A) Is cDCDD in Violation of the DDR?

This question highlights how the debates discussed thus far are not disparate themes; they are ineluctably intertwined. Whether or not the DDR is thought to be violated in cDCDD depends on one’s positions with respect to understandings of “death” and the interpretation of “irreversibility.” As Truog and Robinson argue, the DDR “depends on a coherent definition of death, yet this definition has proven elusive.” ⁸⁵

A vocal minority of authors assert that the DDR is violated in cDCDD.Reference Miller and Truog ⁸⁶ The main reason for this worry stems from the way that death is declared. This is because, once again, it is not clear that a 2-5 minute no-touch period is sufficient to preclude the possibility of auto-resuscitation, and, second, it is not certain that donors meet the irreversibility criterion at the time that organs are recovered (when interpreted in the strict sense of cannot be reversed) (see sec. I). If donors are not certainly dead, it is arguable that organ recovery is sometimes the cause of death. ⁸⁷ Similarly, if one holds that criteria for circulatory determination of death do not actually describe death, then the DDR is potentially violated in cDCDD. ⁸⁸ For example, uncertainties regarding the physiological and temporal relationship between circulatory cessation and cessation of brain activity casts doubt on the vital state of donors, at least for those who worry that the bifurcation between brain and circulatory death is confused. ⁸⁹ Furthermore, when thoracic normothermic regional perfusion is used in cDCDD protocols, the possibility of restoration of circulation to the brain means that criteria used to determine death could be invalidated. ⁹⁰ Therefore, patients cannot reliably be declared dead. If they are not dead, then the DDR is violated during recovery. If this is so, since the DDR is inviolable, cDCDD is unethical.

(B) Should the DDR be Relaxed or Abandoned?

It is important to note that while most authors consider any violation of the DDR unethical, others suggest that violation of the DDR is not inherently so, and may be justifiable given informed consent. ⁹¹ Intractable debates concerning the DDR in this context have led some to propose that it should be relaxed or abandoned altogether. Critics argue that blind adherence to the DDR has led to insupportable revisions to the concept of death and that we must face the fact that, since medical practice may already violate the DDR, it could be time to do away with it in circumscribed areas. ⁹² Adherence to the DDR obscures what is really at issue: how can we maintain respect for persons while respecting the wishes of patients to donate? ⁹³ Or, for those who contend that cDCDD donors are not dead, when is it permissible to retrieve organs from the dying? ⁹⁴ Some suggest that the DDR can — and should — be supplanted by other ethical principles that could govern cDCDD, such as non-maleficence and respect for autonomy. ⁹⁵ After all, they argue, denial of a patient’s desire to donate based on an arbitrary rule amounts to an act of disrespect. Waiting until donors are dead may impact the chances of organ graft, and surely a patient desiring to donate would prefer not only to preserve the donation opportunity, but also to bequeath organs that have suffered minimal ischemic damage.Reference Halpern and Truog ⁹⁶

Defenders of the DDR muster consequentialist arguments in its support. These authors worry that cDCDD without the DDR would: erode public trust in organ donation schemes and physicians;Reference Lyon ⁹⁷ distort the therapeutic doctor-patient relationship;Reference Potts and Evans ⁹⁸ cause dignitary harms to donors; ⁹⁹ lead to a slippery slope whereby patients are routinely killed for organs;Reference Burdick ¹⁰⁰ or erode widely endorsed societal values. ¹⁰¹

(A) The Potential for Deontological Harms to Donors vs. Promotion of Autonomous Wishes

To cause a deontological harm is to fail to treat a person with the respect they deserve, whether or not that person perceives it. The deontological foundation of the DDR leads some to argue that the DDR is not just a prohibition against killing. It has two components: “a prohibition on killing and a prohibition on using living patients solely as a means to an end.” ¹⁰³ The latter injunction expands the purview of the DDR to include issues that arise prior to a donor’s death.

A minority of authors suggest that the practice of cDCDD could express disrespect for persons. The worry is that patients may be instrumentalized or considered as a mere means to an end — organ procurement.Reference Simon, Schears, Padela and Goldstein ¹⁰⁴ To treat someone as a mere means rather than an end is to cause them a deontological harm through instrumentalization. The use of antemortem interventions and the prolongation of life sustaining measures during workup and until such time as an organ recovery team has been readied is presented as putative evidence that patients are instrumentalized. The overarching concern is that practices that are not in the medical interest of the donor suggest that the patient is being treated as a mere means to organ procurement.Reference Bastami, Krones and Biller-Andorno ¹⁰⁵ Seen this way, note Gardiner and Sparrow, “the DDR is breached whenever procedures to harvest vital organs are initiated while the patient is still alive.”Reference Cooper ¹⁰⁶ This arguably results in a loss of dignity in the dying process.

Despite this concern, many respond to the above worries by noting that the deontological basis of the DDR does not require that donors can never be used as a means, but rather that they never be used solely as a means. Since respect for human dignity and autonomy underlie the deontological aspect of the DDR, if a patient has an expressed wish to donate then antemortem interventions and the prolongation of life sustaining therapies serve in reality to promote the interests of donors: “[t]o fulfill someone’s wishes, and most especially those pertaining to personal core values, is to properly give respect to that individual’s (prior) autonomy.”Reference Price and Samanta ¹⁰⁷ Supporters of cDCDD argue that dissenters mischaracterize the attitudes of clinicians and interpret “best interests” too narrowly. ¹⁰⁸ In fact, they argue, to deny the opportunity to donate is to deny concrete benefits to donors. ¹⁰⁹ This response echoes debates concerning the DDR. While it may not be in the donor’s best medical interest to be subject to antemortem interventions and prolongation of life-sustaining measures, “[s]uch acts may be justified through their promotion of the donor’s legitimate interests in what becomes of their bodies after death.” ¹¹⁰ Donors have concrete interests in the success of transplant and may wish to leave a legacy. Benefits to donors, their families and recipients should not be discounted. To deny an autonomous wish to donate on the grounds that it causes a dignitary harm is, paradoxically, to deny that the donor has the dignity that attends personal autonomy.

While the foregoing argument has many proponents, doubt remains over whether donors’ autonomous interest in donation really can justify antemortem interventions which were never anticipated by the donor. A prominent source of worry is how prior consent to organ donation may not entail consent to the interventions associated with cDCDD. The public’s lack of awareness of cDCDD protocol, and the lack of detailed information relayed through generic donation consent processes, suggests that potential donors are not always fully informed about what they are consenting to. ¹¹¹ Donors may object to procedures that have the potential to instrumentalize them or cause psychological distress to their loved ones. As Gardiner and Sparrow note, “there is a certain amount of intellectual strain involved in thinking of premortem interventions in the care of a patient designed to facilitate [cDCDD] as motivated by a concern for the best interests of the donor.” ¹¹² While antemortem interventions may promote an autonomous wish to donate organs, critics worry that this may come at the cost of causing deontological harm. This stimulates proposals for specific informed surrogate consent to each antemortem procedure employed in a given cDCDD protocol.Reference Ave and Shaw ¹¹³

(B) The Possible Negative Impacts on Care Towards End of Life in cDCDD vs. the Option of cDCDD as a Component of High-Quality End of Life Care

While cDCDD may not cause deontological harms, there is a distinct concern that, since care towards end of life in some jurisdictions proceeds differently in cDCDD than it does in non-donation scenarios, cDCDD protocols may worsen the experience for donors, if they retain conscious awareness, or their families. ¹¹⁴ Differences in care may include the performance of antemortem investigations and interventions intended to improve organ graft and function, ¹¹⁵ the necessity of withdrawing life sustaining measures in the operating room, ¹¹⁶ or the prolongation of these measures during donor workup. ¹¹⁷ Some critics describe cDCDD as “an antithesis of quality end-of-life care, when health care teams await at the bedside for death and then rapidly procure organs in a race against ischemic time.” ¹¹⁸ For others, cDCDD is “a stage-managed affair, lacking in all human dignity.” ¹¹⁹ There is, then, a real concern in some quarters that donor and family experience towards end of life in cDCDD may be negatively impacted.Reference Fox ¹²⁰

cDCDD, say some, risks a deterioration in care prior to withdrawal of life-sustaining measures (WLSM). ¹²¹ In addition to the view that the use of some antemortem interventions could conceivably cause physical harm to donors (see below), a minority of authors have speculated that care may suffer if health care providers consider a patient primarily as a means to donation. ¹²² More notably, there remains a distinct worry that physicians may be reluctant to provide sufficient comfort care after WLSM to avoid accusations of violating the DDR.Reference Bell ¹²³ Furthermore, since time pressures are inherent in cDCDD, there is speculation that the manner of WLSM — which may be chosen to expedite death — can cause greater discomfort than in non-cDCDD (e.g., rapid extubation). ¹²⁴

The view that cDCDD risks a deterioration in end of life care is counterbalanced by the widespread sentiment that the option of organ donation is an important component of high-quality end-of-life care.Reference Solomon ¹²⁵ The prevailing view is that cDCDD protocols do not result in a deterioration in care prior to and after WLSM. Indeed, most established guidelines emphasize that care should be altered as little as possible when facilitating organ donation. ¹²⁶

In addition to discussion of potential harms to donors, some authors note that cDCDD protocols may harm families insofar as their experience of the dying process could be negatively impacted. ¹²⁷ Of particular concern are those cDCDD protocols which require death in the operating room, where families are separated from dying donors. ¹²⁸ This is arguably not a component of high-quality end-of-life care. While some respond by asking why death in the intensive care unit is any better, ¹²⁹ separation of families from loved ones may cause unavoidable distress. The fact that donors are sometimes returned to the intensive care unit if death does not occur in the proscribed time frame (usually 60-120 minutes) means that an already traumatic experience for families could be exacerbated. Predicting time to death is very difficult, and there is evidence that unsuccessful donation can harm families.Reference Taylor, Buffington, Scalea, Fost, Croes, Mezrich and Schwarze ¹³⁰ At the root of many worries surrounding care in cDCDD is the fact that families sometimes do not understand the (emotionally painful) trade-offs required for cDCDD.Reference Bernat and Robbins ¹³¹

In general, responses to concerns about the potential deterioration of care towards end-of-life and harms to families in cDCDD contend that these worries are overblown, out of touch with the realities of clinical practice, or even cavalier towards the wishes of both donors and families. Families and donors often derive comfort from the knowledge that a death was given meaning through organ donation. ¹³² In this sense, organ donation is an important aspect of end-of-life care for many. Furthermore, denying a patient’s expressed wish to donate on the basis of worries like the above can be described as paternalistic.Reference Murphy, Manara, Bell and Smith ¹³³ As Gardiner and Riley concede, “[t]o watch as a wish to donate goes unfulfilled is a strong argument against all [of these] concerns.” ¹³⁴ Given appropriate training, resources and guiding moral principles, end of life in cDCDD can be just as dignified as in non-donation scenarios. ¹³⁵ One way to overcome the above worries is to ensure that end of life in cDCDD adheres as closely as possible to a standard end of life protocol, ¹³⁶ and that palliation proceeds as it would in any other case. ¹³⁷ This imperative is widely accepted and endorsed in the donation and transplant community. Quality of care, it is thought, should not be affected by the exigencies of cDCDD.Reference Mandell and Hendrickse ¹³⁸

(C) The Ethical Permissibility of Antemortem and Postmortem Interventions

The most prominent debate surrounding the potential for harms in cDCDD concerns the ethical permissibility of antemortem and postmortem interventions designed to improve organ graft and function in recipients. The ethical literature is split on the question of whether antemortem interventions should be allowed, especially antemortem cannulation in anticipation of post-mortem normothermic regional perfusion. ¹³⁹ There is no consensus in the broader literature, ¹⁴⁰ although consensus statements from expert panels in a number of jurisdictions endorse some or all of these procedures. ¹⁴¹ Many consider postmortem mechanical reperfusion to be impermissible because of the danger of brain reperfusion and the consequent potential for reanimation, but again, there is at present no consensus. ¹⁴²

Those who argue that we should be wary of antemortem interventions muster three main arguments. First, (i), these interventions provide no medical benefit to donors and can be highly invasive; thus, they are arguably not in the patient’s best interest. ¹⁴³ This concern is exacerbated by the fact that consent to organ donation may not entail informed consent to invasive antemortem interventions. ¹⁴⁴ Second, (ii), certain invasive interventions can conceivably cause physical (and deontological) harm to donors. ¹⁴⁵ Since these practices arguably transgress the principle of non-maleficence, vocal critics argue that “[p]rocedures that can only cause harm to a patient without providing any benefit are unethical and the person performing them is no longer practicing medicine.” ¹⁴⁶ Third, (iii), some worry that antemortem interventions (such as the use of heparin) can actually hasten death, which, if true, can evidently be construed as a harm.Reference Rady, Verheijde and McGregor ¹⁴⁷

In response, those who advocate for the permissibility of antemortem interventions argue correspondingly that (i) we can construe best interests broadly such that antemortem interventions are, in fact, of benefit to donors insofar as they serve to promote their autonomous decision to donate organs.Reference Zeiler, Furberg, Tufveson and Welin ¹⁴⁸ (ii) Building on the response to (i), while it is possible that these interventions can cause harm, there is in fact little evidence that they do. ¹⁴⁹ Furthermore, informed consent and the doctrine of double-effect can justify their use, ¹⁵⁰ though the applicability of this latter doctrine is highly contested. ¹⁵¹ Finally, (iii) the possibility that antemortem interventions can hasten death is remote, and thus not of great concern. ¹⁵²

Some authors regard postmortem mechanical reperfusion to be impermissible. The main concern with reperfusion is that it risks restoring brain function. ¹⁵³ The use of aortic occlusion balloons or clamps on the aorta and great vessels arising from the aortic arch to restrict blood flow to the brain promises to minimize chances of such occurrences,Reference Perez-Villares, Rubio, Del Rio and Minambres ¹⁵⁴ yet some argue that it does so at the risk of conceptually undermining the justification for the determination of death. That is, employing aortic clamps or occlusion balloons “demonstrates that the loss of all brain functions in these protocols cannot be considered irreversible, and that permanent loss is not a valid surrogate for irreversible loss.” ¹⁵⁵ Further empirical research can help to establish the risks associated with this practice, though its conceptual ramifications will continue to be debated.

(A) Determinations of Futility and WLSM

With respect to identifying candidates for donation, notes Doig, “there is an inherent conflict of interest for physicians caring for these and other individuals in the ICU who might also be candidates for [cDCDD]: attempts to preserve the life of a patient might limit or preclude these same individuals from being organ donors.”Reference Doig ¹⁶¹ Some worry that early or erroneous determinations of treatment futility could occur if health care providers are (consciously or unconsciously) motivated by the desire to procure organs from critically ill patients. ¹⁶² While others respond that the risk of premature or biased determinations of futility can be overcome with robust guidelines that are already largely in place, ¹⁶³ detractors point out that determinations of futility are never certain, and that unconscious bias is possible.Reference Overby, Weinstein and Fiester ¹⁶⁴ Furthermore, in the unlikely event of physicians seeking primarily to secure organs to reduce shortages rather than ensuring the best possible care for patients, it is conceivable that not all treatments options will be explored prior to determinations of futility or WLSM. ¹⁶⁵

(B) Care Towards End of life and WLSM

As noted above (sec. IV), a minority of authors worry that care towards end of life may suffer if patients are considered mere means to organ donation. As Rady, Verheijde, and McGregor argue, “the care of the dying patient [may be] guided by a team whose primary interest is the preservation of organs until procurement has been accomplished.” ¹⁶⁶ This could affect the type and quality of care towards end of life. ¹⁶⁷ The use of antemortem interventions (with the goal of improved organ graft and function) that are not in the patient’s best medical interest (and may also expedite death) raise worries that care towards end of life may be compromised by conflicts of interest. ¹⁶⁸ For instance, say some, antemortem interventions are in the interest of recipients, not the medical interests of dying patients. For those who take this narrow view of “best interests,” this tension epitomizes the conflicts of interest attendant on cDCDD. Additionally, some argue that the timing, location and manner of WLSM may be affected by conflicts of interest in cDCDD, thus undermining the quality of end of life care. ¹⁶⁹ In the past, variability in end of life ICU practice raised worries that conflicts of interest were of more than theoretical concern. ¹⁷⁰ Standardized protocol and emerging consensus surrounding guidelines seem to have alleviated these apprehensions.

(C) Securing Consent

There is wide variation in procedures for consent among organ donation organizations, transplant centers, and hospitals.Reference Hardart, Labriola, Prager and Morris ¹⁷¹ Some critics worry that “[t]he conflict of interest and self-serving bias of [organ procurement organizations] can limit the exchange of information with surrogates and violate the standards for true informed consent.” ¹⁷² Likelihood of consent may be higher when both the putative trade-offs in end of life care and the nature of antemortem interventions required for cDCDD are not fully understood by donors or surrogates, and this may be one motivation for a lack of transparency. ¹⁷³ As noted above, some authors emphasize that, given the public’s limited understanding of cDCDD, prior consent to organ donation does not entail consent to antemortem interventions. ¹⁷⁴ Donors and surrogates may not be fully informed of the putative risks of these interventions when consenting to donation. ¹⁷⁵ In addition, there are legal concerns in some jurisdictions surrounding the legitimacy of surrogate decision-makers consenting to antemortem interventions. ¹⁷⁶ Furthermore, it is likely that surrogates and donors are not aware of the controversies surrounding determinations of death, the possibility of reanimation through reperfusion, and the practice of cDCDD more generally while consenting to donation. ¹⁷⁷ Again, this may violate the requirements for valid informed consent.

(D) Determination of Death

Although conflicts of interest in the determination of death are rarely explicitly spelled out in the literature, it is reasonable to assume that they can occur given the time pressures that are inherent in cDCDD. ¹⁷⁸ For example, from an institutional perspective it is expedient to adopt a weak construal of irreversibility and a shorter no-touch period in the interest of recovering viable organs. Institutions may be motivated by utilitarian rationales to adopt perspectives on these debates that are amenable to their organ procurement goals.

(A) Does the Practice of cDCDD Test (or Transgress) Society’s Ethical Boundaries?

Answers to this question draw on more focused debates in the literature on cDCDD. The question’s answer is contingent on one’s position with respect to these narrower debates, as well as one’s views on how the ethical principles guiding medical practice should be interpreted. Most arguments concluding “yes” take the following form: “concern X is a problem; X means that we are transgressing ethical principle Y; once made aware of X, the public will lose trust in physicians and organ donation schemes because it espouses Y.” As such, a few examples will suffice.

If one thinks that the risk of hastening death by way of antemortem interventions is non-negligible, one might contend that doctors are sometimes killing patients — something that could stoke public fears of patients being killed for organs. ¹⁹⁰ Killing patients distorts the nature of the doctor-patient relationship and thus runs the risk of eroding public trust. ¹⁹¹ A similar argument can be made if one thinks that cDCDD donors are not actually dead when organs are retrieved. The public may react negatively if it believed that organs were being taken from the living, for doing so would represent a violation of the DDR. Similarly, suggestions that “irreversible” loss of brain function could be restored after circulatory determination of death could lead to “public uncertainty and the possibility … of derailing the transplant programme in general.” ¹⁹² Finally, if one contends that cDCDD causes deontological harms to donors ¹⁹³ then public trust could be impacted insofar as the practice may be perceived to undermine society’s commitment to the inherent worth of all persons.

(B) Will Real or Perceived Conflicts of Interest Erode Public Trust?

Some authors suggest that public perception of conflicted decision-making at any stage of cDCDD would erode trust in organ donation schemes and physicians. Here again the arguments take a similar form: “because of the conflict of interest we have identified, public trust may be eroded.” For example, “[…a]ny doubt over decisions to withdraw life-sustaining treatment would be a potential disaster for any [DCDD] programme.” ¹⁹⁴

Responses to these concerns piggy-back on those that respond to the worry that conflicts of interest jeopardize the ethical permissibility of cDCDD. First, perceptions of impropriety will be alleviated by separation of teams. ¹⁹⁵ Second, clear protocols for cDCDD will mitigate the chances of conflicted decision-making. ¹⁹⁶ Finally, all potential conflicts of interest must be transparently voiced to promote confidence in the medical profession. ¹⁹⁷

(C) Is the Public Being Deceived When it Comes to cDCDD?

A minority of critical authors worry that the public is being misled about the practice of cDCDD. There is a concern that a weakening of public trust may result from wider awareness of this purported deception. This debate focuses on the contentious criteria for determination of death employed in cDCDD. Death, say some, is a concept that is being gerrymandered in order to increase the pool of eligible organ donors. ¹⁹⁸ Physicians, institutions and organ procurement organizations are practicing “deception” when it comes to cDCDD: donors are not dead. ¹⁹⁹ Falsely claiming that sound science underlies criteria for determination of death is dishonest. ²⁰⁰ The arguably misleading language used to describe the vital states of cDCDD donors leads the public to falsely believe that donation only ever takes place after death has been unequivocally determined. ²⁰¹

(D) Will the Proposed Relaxation of the DDR Erode Public Trust?

Perhaps the most prominent debate surrounding public trust concerns the possible impacts resulting from something that has not even happened: the relaxation of the DDR. This debate is stimulated by proposals to abandon the DDR in order to facilitate cDCDD and avoid conceptual turmoil. ²⁰² As previously noted, these proposals stem from the belief that the DDR is already violated, ²⁰³ that blind allegiance to the rule obscures what is really at issue, ²⁰⁴ and that this allegiance requires indefensible revisions of the concept of death. ²⁰⁵ Despite these arguments, the vast majority of authors suggest that relaxing DDR will lead to an erosion of public trust in cDCDD. ²⁰⁶ Maintaining the DDR is essential to reassure the public of the primacy of patient interests. ²⁰⁷ Proponents of jettisoning the rule argue that such slippery-slope rejoinders are not based on any firm evidence; in fact, available evidence suggests that the public will not be unduly concerned with a loosening of the DDR.Reference Halpern ²⁰⁸ Yet despite proposals for relaxing the DDR, ²⁰⁹ the prevailing view is that it should not be abandoned.