Conscientious objection by healthcare professionals to end-of-life organ donation practices: A response to Shaw et al

Sir,

In their recent editorial, Shaw et al. argued against allowing healthcare professionals the right to conscientious objection (CO) to organ donation without providing an explicit rationale. ¹ Although the authors recognized that “allowing for CO is a well-established fact of delivering health care in a pluralistic society, recognized by many medical regulators worldwide,” they argued that continuation of such policy in organ donation “might mean the continued obstructionist or half-hearted support for organ donation … to the detriment of patients and the success of organ donation.” ¹ We wish to comment on this policy proposal.

First, Shaw et al. (herein “the authors”) cited a consensus statement by the Brocher Foundation in substantiating their policy proposal. This statement was issued by a group of 15 philosophers and bioethicists at a workshop on CO in healthcare. ² We argue that the workshop lacked balanced representation of the diverse legal, philosophical, and ethical opinions on CO and that the recommendations of the workshop were biased and should not drive a change in national policy on CO. The American Medical Association (AMA) stated that

[p]hysicians are expected to uphold the ethical norms of their profession, including fidelity to patients and respect for patient self-determination, yet physicians are not defined solely by their profession. They are moral agents in their own right and, like patients, are informed by and committed to diverse cultural, religious, and philosophical traditions and beliefs. ³

Others expressed opposition to CO stating that

[d]octors must put patients’ interests ahead of their own integrity. They must ensure that legal, beneficial, desired services are provided, if not by them, then by others. If this leads to feelings of guilty remorse or them dropping out of the profession, so be it. ⁴

Both the authors and the statement from the Brocher Foundation embraced this latter viewpoint as a universal decree for rejecting CO in healthcare. Authors labeled CO as an act of obstructionism and harmful to organ donation.

Second, the authors did not differentiate between living and deceased organ donation. The latter entails procurement of vital organs from individuals who were determined to be dead. They posited that their “… experiences in clinical practice indicate that some nurses and doctors do object, sometimes strongly so, to organ donation.” ¹ Faulty death determination by healthcare professionals would mean that vital organs are being procured from dying rather than dead individuals. The primary driver for CO would be the consequence of procuring vital organs before death, which is to say that the procurement procedure is the proximate cause of the donor’s death. The authors questioned the moral legitimacy of CO because it could result in the death of patients awaiting transplant: “Are the reasons healthcare professionals might give as objections … genuinely conscientious? And even if they are, should they be permitted in life-savings areas of medicine?” ¹ The authors ignored that the real concerns of those expressing CO is most likely because of the possibility of harm to donors and their families if indeed organs are being procured from donors who are not truly dead. The moral impasse and CO originated from the legitimate objection to death determination. The neurological and circulatory criteria of death determination in heart-beating and non-heart beating donors, respectively, have not been validated scientifically. ⁵ Persistent scientific challenges and ethical controversies were unlikely to originate from misinformed obstructionists as implied by the authors. As a case in point, the medical, legal, and religious challenges to neurological death determination or brain death have increased globally. ⁶ The American Academy of Neurology Ethics, Law, and Humanities Committee recognized that “conceptual threats to brain death as a medical and legal determination” would undermine public’s trust in the integrity and transparency in organ donation and transplantation. ⁷ This recognition would further invalidate the claim of a broad consensus and universal acceptance of brain death in a pluralistic society.

Third, the authors argued that “CO in this context makes less sense” because brain death has been legally codified. ¹ Brain death has not been legally codified for death determination in the United Kingdom. ⁸ Although brain death has been legally codified in the Uniform Determination of Death Act, several well-publicized US cases are now challenging its constitutionality.^9,10 The authors’ remark “if healthcare professionals really believe that their colleagues are involved in removing organs from patients who are not yet dead, why are they not contacting the police?” did not advance their logic of denying CO and could be viewed confrontational and counterproductive. It should be emphasized that the legislative and judicial systems in a democratic society are obligated to protect their citizens from harm and injury because of faulty death determination.

Fourth, most major world religions supported organ donation because of the trust in the medical profession that death would be determined with scientifically validated criteria. ¹¹ Abrahamic faith traditions approval of organ donation was always conditional on alignment of death determination in organ donors with well-established biological and anthropological conceptions of death. This alignment has been questioned.^8,12 Therefore, the right to CO on religious grounds should not be ignored. The authors' viewpoints could be perceived as intolerance of genuine religious beliefs in a multicultural society.

Fifth, the authors presented an additional argument for not permitting CO in organ donation because “it sends a mixed message to the public.” This is similar to transplantation advocates recommending the publication of only those articles that are supportive of deceased organ donation. ¹³ This recommendation is authoritarian, counter intuitive to academic freedom and an implicit attack on the dominant principle of autonomy in Western bioethics.

Sixth, the authors indicated that ethicists in the workshop of the Brocher Foundation found CO to be unprofessional, and those with CO should “at least explain the rationale for their decision” so as to ensure that “any objections are really conscientious.” ² The authors did not elaborate on who should decide on the legitimacy of CO expression. The Brocher Foundation workshop posited that “[t]he burden of proof to demonstrate the reasonability and the sincerity of the objection should be on the healthcare practitioners.” ² The latter “should also be educated to reflect on the influence of cognitive bias in their objections.” ² In contrast, the burden of proof of validity and the recognition of cognitive bias should be first and foremost on the proponents of the novel method of death determination in organ donation. Without proof, this new way of death determination could constitute a public health hazard.

We conclude that the core problem with CO is procuring organs from donors who may not be truly dead. Pellegrino stated, “I have chosen to give priority to the welfare of the patient before he or she becomes a donor on grounds that harm must not be done even if good comes from it. No person should be sacrificed as a means for the good of another. This is a moral precept that recognizes the intrinsic worth of every human being.” ^{14: 119} Nguyen argued: “[h]owever noble the concept of organ donation is, it cannot justify taking the life of one sick (and dying) person for the sake of saving the lives of several other sick persons.”^{12: 174} That is exactly why medical practitioners should be allowed CO. We reaffirm the AMA’s general statement:

preserving opportunity to act (or to refrain from acting) in accordance with the dictates of conscience their professional practice is important for preserving the integrity of the medical profession as well as the integrity of the individual physician, on which patients and the public rely. ³