What Is Death? On Organ Donation and the Dead Donor Rule
By: Christopher O. Tollefsen, originally published October 7, 2025, Public Discourse
Our public policy should be based on the biological truth about death, and the moral truths governing permissible and impermissible actions. We should not let policy desires drive our factual claims about when death takes place.
Editors’ Note: This is the first essay in a three-part symposium addressing the question, “What is death?” Three bioethicists will respond to a recent New York Times op-ed arguing that we need to redefine death in order to encourage more organ donations. The three authors have differing views but all largely agree that the authors of the Times piece make grave errors in their attempts to redefine death.
Pope Saint John Paul II spoke often and with approval of organ donation, going so far as to identify the practice as nurturing a culture of life. But, he stressed, what is technically possible is not the most important standard for determining the shape of the practice: ethically acceptable standards must be followed for organ donation, especially of “vital” organs, to genuinely give witness to, and show respect for, the value of human life.
John Paul gave voice to a widespread consensus in holding it to be “self-evident” that “vital organs which occur singly in the body can be removed only after death,” articulating what is commonly called the Dead Donor Rule (DDR). But John Paul also recognized the question that adherence to the DDR prompts: “When can a person be considered dead with complete certainty?”
This question, raised by the late pope in an address to the Eighteenth International Congress of the Transplant Society in July of 2000, is still with us twenty-five years later, and is still raised with urgency because of the need for organ donations. Thus it is that three physicians, writing recently in the New York Times, raise the same question as John Paul, and argue for the need to revise our “definition” of death so as to be able to morally procure a greater number of organs within the parameters of the Dead Donor Rule.
Drs. Sandeep Jauhar, Snehal Patel, and Deane Smith identify the nub of the problem. Organ transplant teams who facilitate donation after cardiac death must, in order to meet the circulatory branch of the Uniform Determination of Death Act (a model law adopted by most states), wait until the individual has sustained “irreversible cessation of circulatory and respiratory functions” before removing vital organs. A separate criterion identifies death as also occurring with the “irreversible cessation of all functions of the entire brain, including the brain stem.”
Candidates for organ donation after the circulatory criterion is met are typically in an irreversible or permanent coma, and on life support. They have not yet met the requirement of irreversible cessation of circulation, because circulation is maintained by life-supporting technology; nor have all functions of the entire brain ceased. To meet the circulatory criterion, the potential organ donor must first be removed from life support. After the heart stops (asystole) and circulation has ceased, physicians then wait a prescribed period of time to ensure that cessation is “irreversible.” Organs may then be retrieved. (If patients continue to breathe after removal of life support, they are judged not to have died and are not candidates for organ retrieval.)
As the Times authors note, waiting damages the organs; the longer the wait, the worse the damage. However, a new technique has been developed, called “normothermic regional perfusion” (NRP), that keeps the patient’s organs perfused with oxygen-rich blood. This preserves the organs but raises two objections. First, has the heart now, in fact, been restarted? If so, has the circulatory criterion really been met? And second, in the process of NRP, major blood vessels that carry blood to the brain are ligated, closing off blood flow to the brain and perhaps inducing brain death or preventing the restoration of some brain functioning. Does NRP then bring about brain death?
Drs. Jauhar, Patel, and Smith cut this Gordian knot in a way that is now quite frequently defended. We should, they argue, change our definition of death to include patients in an irreversible coma, even while still on life support. Thus, these patients would be available for organ transplantation without violation of the DDR.
There is also, they suggest, a “philosophical” reason for this change, rooted in the nature of “personhood”:
The brain functions that matter most to life are those such as consciousness, memory, intention and desire. Once those higher brain functions are irreversibly gone, is it not fair to say that a person (as opposed to a body) has ceased to exist?
Although I sympathize with the Times writers in their reasonable desire to obtain more transplantable organs, both reasons for revising the definition of death are problematic.
With regard to the first, a preeminent consideration that should be kept firmly in mind is the priority of reality to policy. Our public policy here should be based on the biological truth about death, and the moral truths governing permissible and impermissible actions. We should not let policy desires drive our factual claims about when death takes place.
Nor is the philosophical reason sound: human beings are animals, living organisms of the human kind. They are not “persons” in a way that is separable from their biological existence, as the authors suggest. You and I continue to exist as long as the living bodies that we are continue to do so, and we retain our dignity as persons even in an irreversible coma.
My concern for the truth in this domain goes beyond concern that policy imperatives might shape our account of what is in fact the case. For in my view much of the way that the DDR is honored involves the maintenance of both a fiction and an equivocation.
The fiction is that after some minimum number of minutes have elapsed, the cessation of circulation is now certainly irreversible. For in some number of cases, and perhaps quite a few, circulation could be restarted by successful CPR and return to life support. Cessation of circulation is thus irreversible in such cases only because human decisions have made it permanent (to acknowledge this fact, some proposals to change the determination of death suggest introducing the word “permanent” instead of “irreversible”).
Death is a substantial change of any organism that suffers it, the complete loss of the organism’s life. But then whether an organism, including a human being, is now dead cannot depend on someone else’s choice whether to revive or not to revive that organism. It must depend on the genuine and intrinsically irreversible loss of the organism’s life.
Some, though few, bioethicists object that because the Dead Donor Rule is not in fact being followed, organ donation after cardiac death should be significantly curtailed. Others, as I have noted, argue for a change in the conditions needed to declare a patient dead. But a third option has only rarely been explored, which I think is worth mentioning here.
Not everything that hastens the arrival of death is intended; nor is every non-intended hastening morally impermissible. Medicine has long acknowledged that even if the provision of morphine to a dying patient depresses respiration and hastens death, it can be morally permissible; and the removal of a patient from life-sustaining technology itself, of course, hastens death; and yet it, too, is morally permissible.
In each case, death is hastened only as a side effect. These acts, the administration of morphine and the removal of life-sustaining technology, are thus unlike euthanasia, in which death is intended as a means to relieve a patient’s suffering. And there is judged to be proportionate reason in the alleviation of pain, and reduction of burdensome and expensive interventions, to allow the hastening as a side effect.
To surgically retrieve the vital organs of a patient who has been removed from life support and has ceased to breathe might indeed hasten the death of that patient by a matter of minutes. But is it obvious, as Pope John Paul seems to have thought, that this hastening would be “intentionally to cause the death of the donor”? I am not convinced that this must be so. Rather, the removal of vital organs in these last moments for the sake of the good they might do brings with it an acceptance of a risk of hastening death. And this risk might, I think, reasonably be accepted if the patient (whose death is inevitable) has, when previously agreeing to organ donation, consented to it with full knowledge of the nature of the risk.
Thinking of intention and side effect is also important when normothermic regional perfusion is added to the picture. The perfusion of the heart and the ligating of vessels leading away from the heart should serve the single purpose of maintaining the heart’s health so as to benefit the ultimate recipient of that organ’s donation. Hastening brain death, if and when it happens, is a side effect relative to that purpose.
What of the worry that if the heart has been revived, then the patient is no longer dead according to circulatory criteria? The Times authors attribute to NRP defenders the view that it is “not the donor but rather regions of the body that have been revived,” without taking a stand on the truth of the matter.
But the proponents of NRP here seem to have the stronger case. Blood does not flow from the revived heart to the rest of the body; neither circulation nor respiration of the organism is restored. The return of biological life to the heart is thus not the same as return of biological life to the patient. And if, as again may be the case, this process hastens, by some small amount of time, the patient’s death, understood as an irreversible cessation of the processes of life, then this is an accepted risk, and not a choosing of death.
Does this proposal come with challenges? It does. Potential organ donors should be rigorously informed of the risk that their organs might be harvested in the waning minutes of their lives, and death perhaps slightly hastened. They must consent to that possibility. Such consent should not be assumed or casually obtained, and organ donors should be given the option to wait to donate until true death, i.e., until the loss of life is genuinely irreversible, before organ retrieval goes forward.
But if consent is knowingly and willingly given, then it seems that these risks are not unfairly imposed. And, for those imminently dying, there can be proportionate reason to accept such risks for the sake of the great good that donation of organs can achieve.
Is there, likewise, some risk that doctors will prematurely pronounce a patient ready for NRP, that reasonable protocols will not be followed? The Times authors acknowledge such a risk and so do I. But such difficulties do not seem insurmountable.
A larger concern is whether a widespread protocol for retrieving organs that involves acknowledged acceptance of a risk of hastening death might itself provide a kind of counterwitness to the value of human life. Once again, though, the prior consent of patients to this procedure for the sake of donating organs to those in need seems a genuine witness to the value of human life. And unlike the current practice, my alternative acknowledges the truth that death really requires irreversible, and not simply permanent, cessation of life activities, such as circulation or brain function.
Both the current practice and the change Drs. Jauhar, Patel, and Smith defend are problematic on biological and philosophical grounds. My own proposal will be thought by some to be wanting on ethical grounds, and contrary arguments must be carefully considered. The goal that all discussants should share is a practice of organ retrieval that relies neither on fictions nor falsehoods, whether biological, metaphysical, or moral.
Christopher Tollefsen is Professor of Philosophy at the University of South Carolina.