That DCD violates the dead donor rule leads to important implications. If the dead donor rule is inviolable, then we must change the practice of organ donation to make it truly consistent with the dead donor rule, risking the lower quality of organs that would be donated. If the dead donor rule is not inviolable, then informed voluntary consent in terminally ill patients to violate the dead donor rule and allow organ donation as the proximate cause of death is required [
6,
7,
126,
127,
143]. The only argument for maintaining the status quo would be to point out the good consequences that result, including saving lives by organ transplantation and maintaining trust in the medical/transplantation systems [
5,
8,
9,
144]. However, we believe that consequentialist calculations in defining death are irrelevant given that our concern is the actual state (death) of the patient. We seek to diagnose the univocal state of death, regardless of the consequences. As Nair-Collins has pointed out, "biological reality [biological death] is what it is, whether we like it or not... What the argument [from utility] advocates, however, is for the medical community to intentionally deceive the public about the biological reality of death" [[
145]p681]. He goes on to say that "trust is at the foundation of medicine...[the argument] advocates doing something that is antithetical to the very existence of the institution of medicine..."[[
145]p681]. Similarly, others point out that the most good/bad consequences can do "is give us a reason for keeping quiet about (or exaggerating) the real status of the condition. The bad consequences cannot stop a condition from being a disorder... it is not clear that that would justify anything other than a piece of large scale public dishonesty" [[
146]p67].
We believe that truthful, complete, voluntary, fully informed consent to organ donation is required. This best respects patient autonomy [
139,
140,
147]. Signed donor cards and donor registries do not indicate fully informed consent to organ donation; the information provided to the potential donor on organ procurement organizations websites is at best incomplete [
148]. We agree with Browne that "if the aim is not just to maintain trust, but to do so by being trustworthy, deliberate deception that bypasses transparency and consent is forbidden... The real issue at stake is thus not what the IOM identifies, but whether trustworthiness is a value to be sought" [[
14]p85].
A potential challenge to our call for fully informed consent could be the claim that organs are property, and organ donation is governed by gift law. It has been argued that organ donation would thus require only a donation intent, and not informed consent, as there are neither risks nor benefits to a
deceased donor from donation, and the decision may occur completely outside the doctor-patient relationship (as in signing a donor card or onto a donor registry) [
149-
151]. This view is reflected in the current OPTN "proposal to update and clarify language in the DCD model elements" that has changed the wording of "consent" [implying informed consent] to "authorization" [
152,
153]. We believe this change is neither good policy nor an acceptable answer to our concerns, for several reasons. First, authorization of, and the intent of the "anatomical gift" is conditional on the death of the donor; if the donor is unaware that DCD violates the dead donor rule, it would be hard to argue that the gift was voluntarily authorized. By violating the dead donor rule, DCD would be a form of living donation, and donation of a vital organ a form of physician assisted death. For this reason, we believe that mere "authorization" would be inadequate, and that DCD should surely require fully informed consent when and if allowed at all [
154,
155]. Second, authorization of the "anatomical gift" outside of the doctor-patient relationship assumes that the diagnosis of death is made objectively by doctors, without (even unconscious) bias in the decision to withdraw life-support or determine death. Of note, the OPTN proposal strikes any reference to the decision to withdraw life support being made before evaluating a patient as a DCD candidate, or of needing confirmatory tests of absent circulation (such as arterial line monitoring) [
152]. Third,
premortem interventions are not done after death, and have real harms and benefits that require informed consideration by potential donors. In addition, the end-of-life (prior to death) care provided to the donor is altered and should require informed consent [
116]. Fourth, some argue that it is not clear that DCD donors are incapable of an experience of pain or suffering [
7,
154,
156], particularly if circulation is re-established with CPR or ECMO. Whether raw affective experience from brainstem and subcortical structures [
157] is possible at 2-5 minutes after absent circulation is unknown.
The United States Center for Medicare and Medicaid Services has held that "... there must be a minimum standard to assure that when families provide consent, they are providing informed consent... potential donor families receive the information they need to make an informed decision about donation..." [
158]. A large group of pediatric intensive care clinicians, in responding to our call for a moratorium on DCD, claimed that a moratorium would deprive parents of the "ability to make a truly 'informed' decision about what we should hold sacred, how one chooses to die" [
159]. In view of these statements by proponents of DCD, it is surprising that the OPTN proposal seeks to remove an informed consent requirement for DCD. We agree with others that the dead donor rule that is said to justify the gift law interpretation of authorization for organ donation after death hides the normative nature of the donation decision, and "disguises moral judgments by pseudo-objective claims [about death]" [
7].