1 For simplicity, the arguments made in the article will refer only to the situation in which the transplantation according to the demand of the conscious terminally ill donor and his family is to be performed after withdrawal of life sustaining treatment and after controlled permanent cessation of his cardiopulmonary function (non-heart beating transplantation - NHBT or donation after circulatory determination of death – DCDD or DCD).

2 Jesse McKinley, Surgeon is Accused of Hurrying Death of Patient to Get Organs, N.Y. Times, Feb. 27, 2008, at A1.

3 See Pomfret, E. A. et al., Solving the Organ Shortage Crisis: The 7th Annual American Society of Transplant Surgeons’ State-of-the-Art Winter Symposium, 8 Am. J. of Transplantation 745, 745 (2008)CrossRefGoogle ScholarPubMed; see also Kaserman, David L., Fifty Years of Organ Transplants: The Successes and The Failures, 23 Issues L. & Med. 45, 49-52 (2007)Google ScholarPubMed (discussing the shortage of organ donors); Lobas, Kelly, Living Organ Donations: How Can Society Ethically Increase the Supply of Organs, 30 Seton Hall Legis. J. 475, 481-82 (2006)Google Scholar.

4 Organ Procurement and Transplantation Network, http://www.optn.org (last visited Oct. 1, 2009).

5 Organ Procurement and Transplantation Network, Dept. of Health & Human Serv., Data Reports, http://optn.transplant.hrsa.gov/data (last visited Aug. 4, 2009).

6 Id.

7 Cf. Institute of Medicine Committee on Increasing Rates of Organ Donation, Organ Donation: Opportunities for Action 69 (James F. Childress & Catharyn T. Liverman eds., 2006) [hereinafter “IOM Report 2006”] (survey results finding that potential donors are concern

9 See Carmi, Guy E., Dignity – The Enemy from Within: A Theoretical and Comparative Analysis of Human Dignity as a Free Speech Justification, 9 U. Pa. J. Const. L. 957, 988 (2007)Google Scholar.

10 Id. at 986-87 and the papers cited therein.

11 Id. at 986-87.

12 Mont. Const. art II, § 4. Note, however, that this provision seems to interpret dignity in terms of equal protection and freedom from discrimination.

13 Cf. Goodman, Maxine D., Human Dignity in Supreme Court Constitutional Jurisprudence, 84 Neb. L. Rev. 740, 743-44 (2006)Google Scholar (the cited article does not however advocate for creation of a right to have one's dignity preserved).

14 See Rebecca Dresser, Human Dignity and the Seriously Ill Patient, in Human Dignity and Bioethics: Essays Commissioned by the President's Council on Bioethics 505, 505 (Adam Schulman & Thomas W. Merrill eds., 2008), available at http://www.bioethics.gov/reports/human_dignity/human_dignity_and_bioethics.pdf.

15 See, e.g., Leon R. Kass, Defending Human Dignity, in Human Dignity and Bioethics: Essays Commissioned by the President's Council on Bioethics 297, 297 (Adam Schulman & Thomas W. Merrill eds., 2008), available at http://www.bioethics.gov/reports/human_dignity/human_dignity_and_bioethics.pdf; O'Connell, Rory, The Role of Dignity in Equality Law: Lessons from Canada and South Africa, 6 INT'L J. CONST. L. 267, 271-72 (2008)Google Scholar.

16 See Daniel P. Sulmasy, Dignity and Bioethics: History, Theory, and Selected Applications, in Human Dignity and Bioethics: Essays Commissioned by the President's Council on Bioethics 469, 477 (Adam Schulman & Thomas W. Merrill eds., 2008), available at http://www.bioethics.gov/reports/human_dignity/human_dignity_and_bioethics.pdf.

17 Id.

18 Id. at 482.

19 Id. at 483.

20 Id. at 485.

21 This argument also holds for terminally ill donors if we assume that the donor agrees to terminate the life sustaining treatment, let nature take its course, and does not want someone to hasten the natural process of death.

22 Cf. IOM Report 2006, supra note 7, at 69, 114.

23 Dresser, supra note 14, at 509-10.

24 Id. at 509.

25 Id. at 509-10.

26 Id. at 505.

27 See generally Barry R. Furrow et al., Health Law 70 (5th ed. 2004).

28 National Organ Transplant Act, Pub. L. No. 98-507, 98 Stat. 2339 (1984) (amended 2008).

29 42 U.S.C. § 274 (2006); Organ Procurement and Transplantation Network, 42 C.F.R. § 121.1 to .3 (2007).

30 42 U.S.C. § 274(c).

31 42 U.S.C. § 273.

32 United Network for Organ Sharing, Who We Are, http://unos.org/whoWeAre/theOPTN.asp (last visited Oct. 6, 2006).

33 Id.

34 Id.

35 Id.

36 See IOM Report 2006, supra note 7, at 30, for the idea that the word commonly used for accruing organs from donors – “harvesting” – implies that a donor might be treated without required respect. The idea to replace the term with the word “recovery” should be followed. However, if policies aren't changed, the wording will only mask the problems.

37 Membership in OPTN is voluntary, but provisions of the Omnibus Budget Reconciliation Act of 1986, 42 U.S.C. §1320b-8(b)(1) (1997), require that medical centers which perform transplantations participate in the OPTN or forfeit their eligibility of Medicare and Medicaid payments. Effectively this requirement makes the membership in OPTN mandatory. See Barshes, Neal R. et al., Justice, Administrative Law, and the Transplant Clinician: The Ethical and Legislative Basis for a National Policy on Donor Liver Allocation, 23 J. Contemp. Health L. & Pol'y 200, 210-11 (2007)Google ScholarPubMed. The policies of OPOs and hospitals are also regulated and accredited by Centers for Medicare & Medicaid Services, the Joint Commission on Accreditation of Health Care Organizations, the Association of Organ Procurement Organizations, and the American Board of Transplant Certification. This article will not analyze the accreditation requirements of those agencies.

38 Unif. Anatomical Gift Act § 15 (1987), 8A U.L.A. 67 (2003). The previous version of the Act was enacted in 1968 and was adopted with few amendments in 50 states and the District of Columbia. In the article, only the 1987 version of the UAGA will be analyzed.

39 Unif. Anatomical Gift Act (1987), 8A U.L.A. 3 (2003).

40 Id. § 2 at 24.

41 Id. § 3 at 33.

42 Id. § 4 at 38.

43 Id. § 10 (a) at 62.

44 Id. § 5 at 44.

45 Id. § 8 at 57.

46 Id. § 11 (c) at 64.

47 See generally Inst. of Med.: Comm. on organ Procurement and Transplantation Policy Div. of Health Sci. Policy, Organ Procurement and Transplantation: Assessing Current Policies and the Potential Impact of the DHHS Final Rule (National Academy Press 1999)Google Scholar (assessing the organ transplantation framework from the perspective of reducing the “organ shortage gap”).

48 42 U.S.C. § 274(b) (2006).

49 Id. § 274(b)(2)(E).

50 Id. § 274(b)(2)(J).

51 However, it might be argued that prohibiting organ purchases protects the dignity of donors. Id. § 274(e).

52 Unif. Anatomical Gift Act § 5(a) (1987), 8A U.L.A. 44 (2003).

53 Id. § 5(b).

54 Cf. IOM Report 2006, supra note 7, at 107 (concerning the requests for donation from the donor's family).

55 See id. at 8 (proposing that myths function among the society that the donor's consent to transplantation may compromise the care offered to him by the physicians).

56 Unif. Anatomical Gift Act § 5(a) (1987), 8 A U.L.A. 44 (2003)Google Scholar.

57 Generally, if the presumed consent approach would be implemented, the burden of showing lack of consent to donation would lay on the patient or his family. For instance, this could be accomplished by registering their refusal with proper authorities. If the donor or his family would not articulate their decision to opt-out from the potential transplantation, the physicians would be able to proceed with the transplantation without any consent. This approach is used in several European countries. See Bernard M. Dickens, Legislation on Organ and Tissue Donation, in Readings in Comparative Health Law and Bioethics 91, 93-94 (Timothy S. Jost ed., 2001). Generally, in the United States, express consent of the donor or his family is needed to proceed with transplantation. IOM committee expressed a view that the United States is not ready yet to make a change to the presumed consent system. See IOM Report 2006, supra note 7, at 209-10, 222-27. See also id. at 215 (stating that the informed consent approach in the United States is adequate and attempts to change the procedure might be questioned).

58 See Yuen, CC. et al., Attitudes and Beliefs About Organ Donation Among Different Racial Groups, 90(1) J. of the Nat’l Med. Ass’n 13, 13-18 (1998)Google ScholarPubMed (indicating that some potential donors might not be willing to donate because they distrust the health care system and their conviction that signing a donor card might result in worse care provided to them). Also, the authors note that African Americans were much more likely to agree with the statement “doctors would not try as hard to save me if they knew I was an organ donor.” Id. Later in this paper I claim that the presented conflict of interest might be lessened by recognizing a cause of action for breach of fiduciary duties by the physician, or by imposing statutory regulations that would include liability for their breach. These solutions might assure the patient that the conflict of interest will be reduced to a minimum, because the existence of liability will deter the doctors from neglecting their patient..

59 Unif. Anatomical Gift Act § 8 (1987), 8A U.L.A. 57 (2003)Google Scholar.

60 Id. § 8(b).

61 Id.

62 Generally, the quality of organs and thus, the chance of successful transplantation, depends on the time in which the organs are going to be procured from the donor. See Mason, J.K. et al., Law and Medical Ethics 477-78 (Oxford University Press 2006)Google Scholar, for a more detailed explanation of the problem.

63 Unif. Anatomical Gift Act § 11(c) (1987), 8A U.L.A. 65 (2003)Google Scholar.

64 See e.g., Joanne Lynn & Ronald Cranford, The Persisting Perplexities in the Determination of Death, in The Definition of Death: Contemporary Controversies 101, 105-06 (Stuart J. Youngner et al. eds., 1999); see Menikoff, Jerry, Doubts About Death: The Silence of the Institute of Medicine, 26 J. L. Med. & Ethics 157, 159-62 (1998)CrossRefGoogle ScholarPubMed (describing the view that even if a physician prematurely declares the patient dead, the transplant team by performing transplantation does not hasten the death of the patient).

65 Potts, John T., Inst. of Medicine, Non-Heart-Beating Organ Transplantation: Medical and Ethical Issues in Procurement (National Academy Press 1997)Google Scholar.

66 See id. at 1.

67 See id. at 2.

68 See id. at 4-6.

69 Inst. of Medicine, Non-Heart-Beating Organ Transplantation: Practice and Protocols (National Academy Press 2000).Google Scholar

70 See id. at vii.

71 Id. at 38 (recommendation 5).

72 See id. at 25.

73 See id. at 7-8.

74 Id. at 75-76. According to the report, hospitals and OPOs should disclose how donation will impact the quality of the dying experience for patients and families by informing them that donation may result in a more invasive death and insufficient time for the family to grieve in the presence of the recently deceased patient.

75 See, e.g., id. at 16, 22 (recommending further studies of patients after the cessation of cardiopulmonary function and recommending that in the interim a five minute time interval between cardiopulmonary arrest and declaration of death should be kept).

76 IOM Report 2006, supra note7.

77 See id. at 77.

78 See id. at 23-24.

79 See id. at 130-131.

80 Id. at 78.

81 See id. at 78-79

82 Id. at 79.

83 Id.

84 Id.

85 Id.

86 Id.

87 Id. at 83. But see Youngner, S. J. & Arnold, R. M., Ethical, Psychosocial, and Public Policy Implications of Procuring Organs from Non-Heart-Beating Cadaver Donors, 269 (21) JAMA 2770, 2773 (1993)CrossRefGoogle ScholarPubMed (discussing such techniques and acknowledging ethical problems that may arise).

88 IOM Report 2006, supra note 7, at 86.

89 Id. at 30 (proposing a change in terminology used by the OPTN and in hospital policies). The report has influenced a change in terminology. In the post-report literature, non-hearth-beating donation became donation after circulatory determination of death and the term recovery of organs is used as opposed to harvesting.

90 United Network for Organ Sharing, Who We Are, http://unos.org/whoWeAre/theOPTN.asp (last visited Oct. 6, 2006).

91 Organ Procurement and Transplantation Network, Appendix A to OPTN Bylaws 2.01A (2007), available at http://optn.transplant.hrsa.gov/policiesandBylaws2/bylaws/OPTNByLaws/pdfs/bylaw_165.pdf (last visited Oct. 1, 2009). Breach of the OPTN regulations by OPOs or transplant hospitals might result in variety of sanctions ranging from letters of warnings to termination of membership. 42 C.F.R. § 121.10(c) (2007). Appendix A also provides examples of sanctions that can be imposed on members of the OPTN. Appendix A to OPTN Bylaws 206A(b). The sanctions provide a strong deterrent for any misconduct. However, they may not directly influence physicians who declare patients death in the transplantation setting.

92 Attachment I to Appendix B of the OPTN Bylaws 1 (2008), http://optn.transplant.hrsa.gov/policiesandBylaws2/bylaws/OPTNByLaws/pdfs/bylaw_162.pdf (last visited Oct. 3, 2009).

93 Id. at 9-10.

94 Id. at 9.

95 Id. at 10.

96 Organ Procurement and Transplantation Network, Attachment III to Appendix B of the OPTN Bylaws, Model Elements for Controlled DCD Recovery Protocols, http://optn.transplant.hrsa.gov/policiesAndBylaws/bylaws.asp, (last visited Oct. 3, 2009).

97 Id. at 1.

98 Id.

99 Id. This provision should be limited to situations where obtaining the consent of the donor himself is impossible, for example, in cases of terminally ill, non-contentious patients, where the family might be conflicted with the donor.

100 Id.

101 Id.

102 Id. at 2.

103 Id.

104 Id.

105 See id. at Section D.2 where emphasis through bold type has been put on the word “before.”

106 See IOM Report 2006, supra note 7, at 128 (indicating that disputes may arise because of the legal phrasing of when death can be declared). Generally, disputes focus on whether irreversible or permanent cessation should be used. In this paper, it is assumed that irreversible cessation of cardiopulmonary function means loss of capacity of auto resuscitation. See, e.g., Dan W. Brock, The Role of the Public in Public Policy on the Definition of Death, in The Definition of Death: Contemporary Controversies 293, 298-99 (Stuart J. Youngner et al. eds., 1999) (noting other possible ways to construe the meaning of irreversibility).

107 See IOM Report 2006, supra note 7, at 145-46 (indicating that generally the spontaneous resumption of circulation does not occur if it was lost for 2 minutes). Nevertheless, the IOM urges to conduct more studies on the problem of auto-resuscitation.

108 See Menikoff, supra note 64, at 159 (criticizing the five minute period); see also Potts, supra note 65, at 60 (noting that the time period usually lasts 10 minutes in Europe).

109 University of Virginia Medical Center Policy Number 0207 will be analyzed.

110 Clinical Staff Executive Comm., Univ. of Va. Health Sys., Medical Centers Policy No. 0207 (2006) [hereinafter “Policy”], available at http://www.healthsystem.virginia.edu/internet/clinicalstaff/ (login required for access).

111 Id. § C.

112 Id. § D 2(a).

113 Id. § D 2(c).

114 Id. § D 3(a).

115 Id. § D 3(b).

116 Clinical Staff Executive Comm., Univ. of Va. Health Sys., Attachment to Medical Center Policy No. 0207 § 4 (2006) [hereinafter “Attachment”], available at http://www.healthsystem.virginia.edu/internet/clinicalstaff/ (login required for access).

117 See Va. Code Ann. § 54.1-2972 (2008) (generally, death by cardiopulmonary criteria is defined as the absence of spontaneous cardiac and respiratory functions).

118 Policy, supra note 110, § D 6(a).

119 Id.

120 Id.

121 Id.

122 Id. § D 3(c).

123 Id. § D 4(a).

124 Id.

125 Id. § D 5(a).

126 Id. § D 5(b).

127 Id. § D 5(c).

128 See section 10(a) and section 10(d) of the Attachment, supra note 116, for an assessment that the period should be 90 minutes after the withdrawal of life sustaining treatment. According to the policy, after that period the decision to further wait for patient's death rests with the transplant surgeon. The patient should be moved to an appropriate setting and should be provided further care by his physician. The patient's family should be notified.

129 Id. § 8(a).

130 Id. § 9(k).

131 Id. § 8(b).

132 Cf. S. J. Youngner et al., supra note 64, at 227 (noting that the longer the period between cessation of cardiopulmonary function and the transplantation, the greater the chance that the organ will be irreparably damaged due to warm ischemia; which creates pressure to proceed as fast as possible with the transplantation).

133 Section 11(d) of the Attachment specifies that two minutes of observation is required if the donor is over fourteen years of age. Attachment, supra note 116, at § 11(d). If he is under fourteen years old, then five minutes is the minimal observation period. Id.

134 See Policy, supra note 110, at §D(4)(c).

135 See Mason, supra note 62, at 501, (suggesting that this period should last even 15 minutes because the process of individual's death may be the most profound time of his existence and should deserve the greatest respect).

136 IOM Report 2006, supra note 7, at 91.

137 Childress, James F. et al., Public Health Ethics: Mapping the Terrain, 30(2) J. L. Med. & Ethics 170, 173 (2002)CrossRefGoogle ScholarPubMed.

138 IOM Report 2006, supra note 7, at 91.

139 See generally, Trenkner, Thomas R., Annotation, Tort Liability of Physician or Hospital in Connection with Organ or Tissue Transplant Procedures, 76 A.L.R. 3d 890 (1976)Google Scholar (discussing reported tort liability cases).

140 42 C.F.R. § 121.10(c) (2007).

141 Thompson v. Nason Hosp., 591 A.2d 703, 708 (Pa. 1991).

142 Id. at 707.

143 Id. at 708.

144 Wood v. Samaritan Inst., 161 P.2d 556 (Cal. 1945).

145 Id. at 559.

146 Id. at 558.

147 Williams v. Hofmann, 223 N.W.2d 844, 847 (Wis. 1945).

148 Id. at 845.

149 Id.

150 Id. at 846.

151 Id. at 847.

152 Id. at 846.

153 Id.

154 Id.

155 Id.

156 Battery or assault claims will not be analyzed here. The general point, that a separate cause of action might be needed to underline the magnitude of a right to death with dignity, applies to these actions also.

157 Potential application of the wrongful death and survival actions based on theory presented in Kenneth S. Abraham et al., The Forms and Functions of Tort Law, 228-30 (3d ed., 2007).

158 Id. at 230.

159 The proposed cause of action could be viewed as protecting everyone's right to death with dignity. However one has to note that, a phrase “right to die with dignity” is generally used in a context of cases where disputes arose whether to permit the abandonment of medical treatment for the terminally ill. See generally Washington v. Gluckberg, 521 U.S. 702, 782-92 (1997) (Breyer, J., concurring). In this paper a concept of a “right to death with dignity” that would protect each dying person (especially donors) is given some thought. I will call this a “right to death with dignity” to reconcile its separate meaning from the “right to die with dignity.” The reader should acknowledge that justification for advocating for an individual cause of action and a separate fundamental right like the one sketched here would consume a separate article. Cf. Sloss, David L., The Right to Choose How to Die: A Constitutional Analysis of State Laws Prohibiting Physician-Assisted Suicide, 48 Stan. L. Rev. 937, 953 (1996)CrossRefGoogle ScholarPubMed (“[L]iberty interest in choosing how to die can also be characterized as an interest in death with dignity.”).

160 See McKinley, supra note 2, at 3 (mother of the donor from the article filed a civil law suit against the doctor).

161 See generally IOM Report 2006, supra note 7, at 127-70, for more problems arising in the transplantation setting and their possible causes.

162 Arguments for solutions made in this subsection should be viewed through the prism of controlled DCDD donation only. Further studies are needed to expand them to broader settings. However, by analogy some of the arguments might be used in other health care scenarios.

163 Another way to force physicians to extend the two minute period, would be to encourage donors to make donations contingent on the declaration of death being made, for example, after ten or fifteen minutes of cessation of cardiopulmonary functions.

164 Credit for this insight should go to Professor Thomas L. Hafemeister who is an advocate of the breach of trust claims. See Breach of Trust Claims Avoid Pitfalls of Medical Malpractice Suits, Professor Concludes (Univ. of Va. School of Law, Charlottesville, Va.), June 28, 2009Google Scholar, http://www.law.virginia.edu/html/news/2009_sum/hafemeister.htm (last visited Oct. 1, 2009).

165 Albert R. Jonsen et al., Professionalism: Ethical Topic in Medicine, http://depts.washington.edu/bioethx/topics/profes.html (last visited Oct. 1, 2009).

166 See Beauchamp, Tom L. & McCullough, Laurence B., Medical Ethics: The Moral Responsibilities of Physicians, 55 n.10 (Beardsley, Elizabeth & Atwell, John eds., Prentice-Hall, Inc. 1984)Google Scholar.

167 Dalton v. Camp, 548 S.E.2d 704, 707-708 (N.C. 2001) (emphasis omitted).

168 Jonsen, supra note 166.

169 Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928). See, e.g., Sinclair Oil Corp. v. Levien, 280 A.2d 717 (Del. 1971).

170 Meinhard, 164 N.E. at 546.

171 280 A.2d 717 (Del. 1971).

172 Cf. Frenster, John H., Breach of Fiduciary Duty - New Legal Approach for Plaintiffs, 6 Oncology New Int’l 28 (1997)Google Scholar, available at http://clinicalfreedom.org/FIDUC01.HTM.

173 Neade v. Portes, 710 N.E.2d 418, 423-429 (Ill.App. 1999), rev’d 739 N.E.2d 496 (Ill. 2000).

174 Neade v. Portes, 739 N.E.2d 496, 500-506 (Ill. 2000).

175 See generally Abraham, Kenneth S. & Weiler, Paul C., Enterprise Medical Liability and the Evolution of the American Health Care System, 108 Harv. L. Rev. 381 (1994)CrossRefGoogle Scholar.

176 Id. at 398-401, 412-413, 415-417.

177 See e.g., McKinley, supra note 2.

178 Contra Morreim, E. Haavi, Balancing Act: The New Medical Ethics of Medicine's New Economics 2 (Engelhardt, H. Tristam Jr. & Spicker, Stuart F. eds., Kluwer Academic Publishers 1991)CrossRefGoogle Scholar.