Call for law change to address heart transplant shortfall

A change in the legal definition of death could see an increase in the number of hearts available for transplant in Australia.

In a paper published in today’s Medical Journal of Australia, Deakin University Law School lecturer Dr Neera Bhatia and Deputy Director of the Intensive Care Unit at Royal Children’s Hospital Associate Professor James Tibballs write that the word ‘irreversible’ in the law that defines death is a stumbling block to opening up the potential number of hearts available for transplant.

The law defines death in all Australian jurisdictions as either “irreversible cessation of all functions of the brain” (brain death) or as “irreversible cessation of circulation of blood in the body” (circulatory death), but it does not define irreversible or how to determine irreversibility, the authors explained.

“Although the procurement of organs such as livers, kidneys and lungs is permitted after either brain death or circulatory death according to Acts in all jurisdictions, the procurement of hearts has traditionally only been from brain dead donors with functioning hearts,” they wrote.

According to Dr Bhatia and Professor Tibballs, the problem with heart transplantation after circulatory death lies in the medical interpretation of the definition of death, which is not necessarily defined by cessation of circulation, unless it is likely to result in brain death.

“The fact that a transplanted heart can function and sustain life in a recipient must mean that the circulation of the donor is never ceased irreversibly and therefore that the donor of the heart is never dead until his or her heart is removed,” the authors wrote.

“The question is thus posed—how is it possible to procure the heart of a donor under the premise of circulatory death and yet expect it to sustain life in a recipient? Put differently, should the procurement of the heart be a criminal offence in such cases, because its procurement is the cause of death of the donor?

“This potential problem of heart procurement being the cause of the donor’s death arises because death has been mistakenly defined in the legal sense as cessation of the circulation, without any reference to brain function.”

Dr Bhatia and Professor Tibballs suggest that refining the legislation could alleviate the ambiguity in the definition of death.

“A possible alternative would be to retain the present definition of brain death as irreversible cessation of all function of the brain, but to omit the requirement for irreversibility in the definition of circulatory death and to redefine it as cessation of circulatory function with cessation of higher brain function. Under this proposition for the redefinition of circulatory death for the purpose of transplantation, procurement of a heart for the purpose of its transplantation could proceed without legal risk and without risk of retained consciousness of the donor,” they wrote.

“Alternatively, the dead donor rule, which would arguably be violated in heart transplantation after circulatory death, needs societal, legal and medical debate followed by revision or abandonment.

“Australia’s improving organ donor program is at risk of adverse publicity and damage if doctors, hospitals and our organ procurement agencies are perceived as procuring organs from patients not legally dead.”

The paper, Transplantation of the heart after circulatory death of the donor: time for a change in law?, can be viewed at https://www.mja.com.au/journal/2015/203/6/transplantation-heart-after-circulatory-death-donor-time-change-law