Revisions to the UDDA Considered by the Uniform Law Commission (ULC)

Since the Uniform Determination of Death Act (UDDA) was passed into law in 1981, much debate has occurred as to whether the standards bypass the Dead Donor Rule (DDR), which states that removing organs from donors cannot be the cause of death for these people. From a biological standpoint, the truth is organ donors declared dead under the UDDA are alive at the time of removing their organs, so they don’t meet the DDR. Lawyers have caught on. As a result, the American Academy of Neurology has proposed a revision to the UDDA (RUDDA) to reduce lawsuits, and the ULC is considering these revisions.

The first change would seek to replace the term irreversible in the standards with the term permanent. “Irreversible” is commonly held to mean “not capable of being reversed.” The term permanent is being offered as meaning that “no attempt will be made to reverse the situation.” Since doctors will not attempt to correct the person’s problem, it becomes “permanent” rather than “irreversible.” Thus, people whose prognosis is thought to result in death will be viewed as dead before they die. The term “permanent” has to do with stopping treatments deemed futile.

A deeper problem for both terms is their subjective nature. Irreversible and permanent refer to states of being that are never objectively qualified at the time of diagnosis. In the 2008 affirmation of the UDDA, Controversies in the Determination of Death: A White Paper by the President’s Council on Bioethics, the Chairman, Dr. Edmund D. Pellegrino, pointed to this issue. “Ideally,” Pellegrino writes, “a full definition would link the concept of life (or death) with its clinical manifestations as closely as possible,” and the UDDA does not satisfy these objective findings. The heart beats, the lungs breathe, the liver removes toxins, and the kidneys produce urine. Organs removed from one body and put into another have not permanently or irreversibly ceased to perform life-sustaining functions in the donor’s or recipient’s body.

The second change would narrow the definition of brain death from “the entire brain,” referred to as the “whole-brain formulation,” to selected brainstem functions that can easily be tested at the bedside. It is now well-known among brain-death proponents that the brain still communicates with the body in various ways. A substantial number of people diagnosed as brain-dead under the UDDA still have a functioning hypothalamus, a part of the brain that communicates with the body via hormones. “Brain-dead” mothers can gestate babies, and children can pass through puberty—both require ongoing brain and body interaction. Also, organ donors declared dead under the UDDA respond to anesthesia to reduce stress responses and other medications to adjust vital signs. Advocates for RUDDA want to follow the practice in the United Kingdom, which requires loss of brainstem function only and not the whole brain.

However, this raises another predicament for RUDDA brainstem proponents. In “Brain Death: What Physicians Need to Know,” Dr. Doyen Nguyen demonstrates the need for consistency regarding brainstem function.

Based merely on their assertion that the spinal cord plays no critical integrative role, BD proponents argued that reflexes and spontaneous movements in brain-dead patients are insignificant and do not invalidate the diagnosis of BD because they originate from the spinal cord. Yet, one can legitimately ask: On what basis can the integrative functions of the spinal cord be deemed insignificant, especially when high spinal cord injury produces irreversible apnea, cardiovascular instability, and poikilothermia—symptoms identical to those observed in BD? Moreover, since the spinal cord is in full continuity with the brain with “neural tracts running in both directions, then why do the reflexes above the foramen magnum (brainstem reflexes) qualify as critical and clinical functions, while those below it (spinal reflexes) are dismissed as irrelevant?”

So, according to BD proponents, bodily “reflexes and spontaneous movements” generated by the spinal cord are not significant, but those in the brainstem, another part of the spinal cord, are. Proponents in support of the RUDDA brainstem criteria are inconsistent in their clinical application.

The third change would standardize the brainstem testing protocol. The current UDDA states a “determination of death must be made in accordance with accepted medical standards.” Since the standard isn’t defined, every medical center decides which neurological tests are performed. These inconsistencies have aided lawyers in their lawsuits.

The fourth change would eliminate the necessity of obtaining consent before testing for brain death. A brainstem function exam, called the apnea test, disconnects people on ventilator support for 6–8 minutes to see if they will breathe independently. This test has no value for the brain-injured person and can only cause harm. When the ventilator is disconnected, rising levels of carbon dioxide in the blood cause intracranial pressure to rise, further damaging the already traumatized brain. The apnea test can only make the person with a head injury worse.

The ULC is reviewing these proposed revisions to the UDDA. The report should be forthcoming by the end of this year. If adopted, the revisions will uphold an unethical law that euthanizes registered organ donors, most of whom gave uninformed consent for the medical procedure to a Department of Motor Vehicle (DMV) window attendant years prior. Just like the ULC adopted revisions to the Uniform Anatomical Gift Act (UAGA) to set irrevocable organ harvesting procedures into motion for the benefit of transplant centers, we fear the proposed revisions to the UDDA will favor the economic and legal interests of these institutions as well.