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Important Changes to NHS Organ Donation in Wales

A Personal Reflection  by Father Neil Evans

In the last week or so, you should all have received a final warning through the post of the imminent changes about to take place in Wales (but not in England) as a result of legislation enacted by the Welsh Assembly Government earlier this year.   You have been asked to register your organ donation decision at or by phone at 0300 123 2323.   From December 2015 it will be assumed by the Welsh Government that if you have not objected to becoming an organ donor, your silence on the matter will be interpreted as your consent.   I have no doubt that most of us, thinking that a dead body is of no further use to us, would be happy to donate organs from our dead bodies.  I share those feelings with you, after all, we are happy to donate blood, bone marrow, a spare kidney, even whilst we are still alive.  It seems uncaring, even cruel, to refuse to donate organs for which we no longer have any use (since we are dead) and which might, nevertheless, save the life of another individual.  As I say, most of us would be happy, “to donate organs from our dead bodies.”   My concern, however, is two-fold. 

  1. Firstly, that the donation of organs should continue to be a free gift of the individual. It is completely unacceptable – a form of tyranny – for the state to presume “ownership” of the body – even one’s dead body.  The primary care and responsibility of the dead body belongs to the family of the deceased not to the state.
  1. Secondly, that a change in the definition and understanding of “death” since the 1980s, now permits organs to be cut out from living, breathing, heart-pumping bodies. This is not what most people normally understand by the word “death” when they speak of donating organs after “death”, indeed, medical practice confirms that the success of transplants depends upon organs being taken from living bodies.
  My two concerns therefore are (a)  the unacceptable power and intrusion of the state, and (b)  the definition of “death”.   This is not a controversy – because, of course, this is a controversial and upsetting issue – which I happily enter into, but as your parish priest, and the shepherd of your souls (and bodies), I feel that with the imminent change in the law, I owe you a duty of care to present to you the “darker side” ① of the issues involved, because there seems to be a general reluctance even to recognise that organ transplantation remains controversial or that there continues to be strong arguments against both (a)  the presumption of the state to assume rights over your dead body, and (b)  the practise of transplanting organs from living bodies.  There is a need for greater transparency ②.   Of course, if you accept the reasoning which I present here, it follows that if you register your objection to becoming an organ donor, as I intend to do, then integrity and honesty also demand that your objection to giving is also an objection to receiving vital organs taken from living, breathing, heart-beating bodies, and thus, potentially, you are giving up the possibility of certain forms of life-saving surgery for yourself.  Morally, one cannot receive organs from living bodies if one objects to donating organs from living bodies.  

①  Pope Saint John Paul II, addressing The Society for Organ Sharing, 20 June 1991, stated that organ transplantation, “is not, of course, without its dark side – there are many questions which need to be more deeply and widely investigated”. CTS “Organ Transplants” David Albert Jones (2001) p33.

②  Pope Benedict XVI, addressing the Pontifical Academy for Life, on the theme of organ donation, 7 November 2008, stated the importance of placing before public opinion, “the most transparent truth on the anthropological, social, ethical and juridical implications of the practise of transplantation” L’Osservatore Romano, 12 November 2008, p3.  

Presumed Consent and the Power of the State
It is the clear teaching of the Catholic Church that the donation of organs should have the explicit consent of the donor, and that that consent should not be presumed.   The Catechism of the Catholic Church states “It is not morally acceptable if the donor or his proxy has not given explicit consent.” (c.2296).   Pope Saint John Paul II in his address to The Society for Organ Sharing, 20 June 1991, clearly stated that without consent, “organ transplantation – would no longer correspond to an act of donation but would amount to the dispossession or plundering of the body.”   In Catholic teaching the body is not an object but part of the human person.  In that sense, my body is a part of me and belongs to me, although, as St. Paul points out, “your body is the temple of the Holy Spirit within you, which you have from God” (1 Corinthians 6 v19).  The body is a gift from God and I have a vocation and responsibility under God to offer it to Him (Romans 12 v1) as the foremost of all my possessions.  It is a precious gift – a part of the gift of myself to another in marriage (Matthew 19 v6;  Ephesians 5 v31-33) – more precious than other possessions of food or clothing (Luke 12 v23).   After death I leave all my possessions (including my body) behind, and the state (unless it is a tyrant) has no more rights over my body (the most valuable and cherished of my possessions), to take it, than it does over the other possessions I have bequeathed.  Indeed, although the state may heavily tax my bequest or even deprive my beneficiaries of all my estate (because of a debt I may have incurred, or because of a crime I may have committed), my body is not, and cannot be considered in any way as “owed” to, or “owned” by, the state.   As Archbishop George Stack, Archbishop of Cardiff, has said, the human body “is not an asset of the state.  The dignity of the human person demands that our autonomy be respected in this profoundly important area”. (www.indcatholicnews 03/01/2012).  

It is an unacceptable tyranny, and a sinister development, for the state (the Welsh Government) to presume to own, or have rights over, the human body, a form of state-sanctioned grave-robbing or body-snatching.   What of post-mortems?  In carrying out post-mortems, does not the state presume certain rights over the dead body?  Post-mortems are a service to the deceased person to establish the cause of death and therefore the Catechism of the Catholic Church states that, “autopsies can be morally permitted” (c.2301).  Although, in effect, a violation of the corpse,  a post mortem serves its purpose of establishing how a person died and so, in a sense, serves the good of the person and, of course, post mortems are only carried out on dead bodies, not on bodies kept “artificially” alive.   The primary responsibility for the disposal of the human body belongs to the next of kin, in the first instance, as a duty and hallowed service to the deceased.  The idea that the state is waiting over the dying person to take their body parts is abhorent and beyond the legislative authority of any state, even a democratically elected government, because it violates the sanctity and integrity of the human person and of the family unit.  No one owns the body of another person and, as Bishop Tom Burns, Bishop of Menevia, has already stated, “these proposals have no place on the statute books of a free and democratic nation.”   He writes, “In normal everyday matters, few adults would allow anyone else to presume their consent to something, without asking them beforehand.  When it involves donating something as important as a person’s own organs, consent should not be presumed, but should be explicitly requested and voluntarily given.  Not to do so would seem to violate human rights.  The state should be maintaining the rights and dignity of each human being rather than usurping them itself.  Silence is NOT consent.  These proposals have no place on the statute books of a free and democratic nation”. (Bishop Tom Burns, on “Human Organ Donation and Presumed Consent”, 12 January 2012).  

If you have not registered your decision not to be an organ donor by Tuesday 1st December (on  or by phone at 0300 123 23 23) then, after 15th December, if a doctor pronounces you “dead”, in a hospital in Wales, your body can be taken away and cut up (heart cut out, womb removed, face scalped, hands cut off) because your consent to organ “donation” will be presumed.  

The Definition of “Death” – Organ Transplants from Living Bodies
Until 1968 the classical definition of death was that the heart had stopped beating leading to a cessation of breathing and of brain activity and the body becoming cold.  Today this is still what most people understand by “death”.   In 1967 the first heart-transplant was carried out in South Africa, “However, heart, lung and liver transplants need to be very fresh and cannot be taken from bodies that have been damaged by lack of oxygenated blood.  The traditional point when death is diagnosed would be too late to rescue these organs”.  (CTS, “Organ Transplants” p11) and, therefore, to be successful, transplanted organs need to be taken from living bodies.   In 1968 an ad hoc committee of the Havard Medical School issued a report proposing a new definition of death called “brain-death”.  “This amounted to a radical change in the conception of death” (Lucetta Scaraffia. L’Osservatore Romano 24 September 2008, p13).  “This ad hoc committee coined the term “irreversible coma” which was used interchangeably with, and eventually became the term “brain death”.” (Fr. Liam Bradley, “The Definition of Brain Death and Some Ethical Questions this Raises” 11 May 2012).   Not only does “brain death” not lead to the death of the body, it is important that despite the “death” of the brain, the rest of the body should be functioning normally – fully active.   Unfortunately, there is no agreed understanding of what constitutes “brain death”.  Until 1997 it was not possible in Japan to remove organs from those who elsewhere would have beeen diagnosed as “brain dead”, because it was recognised that in such a condition the patient was “not yet dead”.  

In the United Kingdom the definition of brain death requires only that the brainstem has stopped functioning, whilst in the United States, “there have been cases of patients declared dead in one State but declared alive in another.  Furthermore, the UK acceptance of brainstem death as equivalent to brain death has failed to find widespread international acceptance.  The UK definition completely ignores that part of the brain that is most involved in conscious thought.  Some “brain dead” patients still have measurable brain waves.”  Indeed “when organs are going to be taken from a “beating-heart cadaver”, the body has to be anaesthetised first or else the heart beat will rise sharply and the blood pressure increase.  The bodies of “brain dead” patients still show some integrity and reactivity.”  (CTS, “Organ Transplants” p58).  “The neurologist Alan Shewmon describes a child who had fulfilled all the clinical criteria for brain death.  This child was evidently brain dead, if anyone ever has been, and yet he has gone on to live for a further fourteen years.” (CTS, “Organ Transplants” p59).   Suppose, for a moment, that it is true that a “brain dead” person cannot feel anything at all.  It is a completely fallacious argument to say that if a person  is not conscious of anything therefore it is okay to cut out these vital organs whilst they are still alive!  If a person is defenceless and dying, and has lost consciousness in an irreversible coma they ought to be proteected and cared for until their “natural” death, not plundered for their organs whilst they are still alive.   Tragically, and scandalously, the “apnea” test for testing for brain death involves starving the brain of oxygen – “one of the primary tests to see if a patient is brain dead is actually fatal!” (Bradley, p7).  

Significantly, in the Vatican City State the certification of brain death is not used at all.   In 1985, the Pontifical Academy of Science (which contains non-catholics and even atheists, expert in the sciences but not in theology or philosophy), declared itself in favour of the “Havard report” and published its own report arguing strongly that brain death should be accepted as the definition of death, and the Catholic Church has permitted and even encouraged organ donation provided only that the patient is “certainly” dead.   Today the debate about brain death has been re-opened by news that “casts doubt precisely on the fact that brain death causes the disintegration of the body.” (Scaraffia).  If the heart or lungs stop working the patient dies and after a few hours rigamortis sets in, but in 1992 there was a “sensational case” (Scaraffia) of a woman who had been declared “brain dead” before it was realised she was pregnant.  “This case, and subsequent other similar cases, ending with the birth of a child, called into question the idea that in this condition bodies are already dead, cadavers from which organs could be transplanteed.” (Scaraffia).   In 1991 the then Cardinal Joseph Ratzinger in his report at the Extraordinary Consistory had himself expressed his concerns that those in an “irreversible” coma should not be put to death to answer the demand for organ transplants or used for medical experiments – how horrific! – on “warm cadavers.”   In 2008 Pope Benedict XVI returned to these earlier concerns of his stating that, “where certainty has not been attained the principal of precaution must prevail” (Address to the Pontifical Academy for Life, 7 November 2008) and stressing, once again, that “individual vital organs cannot be extracted except ex cadavere” (ie: from a dead body).  

Pope Saint John Paul II in an address to the 18th International Congress of the Transplantation Society on 29 August 2000 re-iterated that transplantation can take place, “only after death, that is, from the body of someone who is certainly dead – to act otherwise would mean intentionally to cause the death of the donor in disposing of his organs.”   In 2005 the Pontifical Academy of Science returned to the topic conscious of the growing controversy, twenty years after they had first argued strongly in favour of “brain death” as defining death.  There was no agreement and many doubts and concerns were raised, resulting in the publication of “Finis Vitae:  Is Brain Death Still Life?” (2006) edited by Roberto de Mattei, in which contributors are unanimous in declaring that brain death is not the death of the human being.   These concerns raise significant problems for the Catholic Church which had previously implicitly accepted the definition of brain death as “certain” evidence of death.   Apart from the different ways of defining “brain death”, and the medical evidence that brain death does not lead to the death of the body (in the way that the “death” of the heart or lungs would do), there is also continuing debate (in Catholic theology) about whether the “person” is simply to be identified  with cerebral activity alone.  This would seem to contradict the Catholic understanding of the human person.  “The soul is not only the principle of mental life (the mind); it is the principle of our whole life, what it is that makes us humanly alive.  The soul gives life to the body and if the body is alive and functioning with its own unity and integrity, that is a sign of the presence of the soul” (CTS, “Organ Transplants” p57).   Are those born without a forebrain or a cerebrum (antecephaly) “dead” when they are born?   And what of the human conceptus?  Jesus was “fully Man” from His Conception (ie:  “fully Man” before he developed a brain).  Many of the Catholic arguments against abortion (that life begins at conception, rejection of experimentation on the human embryo, and not using the foetus for its tissues and organs) equally apply to the living bodies of those who are considered to be “brain dead”. (“This moral condemnation also regards procedures that exploit living human embryos – as providers of organs and tissues for transplantation.  The killing of innocent human creatures, even if carried out to help others, constitutes an absolutely unacceptable act”, Pope Saint John Paul II, Evangelium Vitae, 63).  

It seems to me (my personal opinion), and I believe it to be the teaching of the Church, that if there is any doubt (and it seems to me that there is now a great deal of doubt) about whether those who are pronounced “brain dead” are “certainly” dead, then the Catholic Church must rescind from her earlier implicit assent to “brain death” as an acceptable definition of death because it is now far from “certain” that those judged to be “brain dead” are “certainly” dead.  My fear is that it is the act of the surgeon cutting out the vital organ that is killing the donor who would otherwise die a “natural” death.  To scalp the face, or cut off the hands, or cut out the heart from a living, breathing, blood-oxygenated, heart-beating body is (in my opinion) the stuff of horror movies.   For all the reasons stated above, I will register my decision not to be an organ donor, because I have no confidence that a person being kept “artificially” alive (heart beating, lungs breathing) is, in fact, certainly dead.   Each person must of course decide for themselves.  The Church has not yet definitively accepted or rejected the definition of brain death as the criterion of death.  My convictions on the subject will not be the convictions of others.   In opposing the authority of the state to presume consent to organ donation, I am aware that I have, during the course of preparing this paper, arrived at a deeper conviction that since organ transplants need to be taken from living bodies which are not certainly dead, all Catholics and the teaching of the Catholic Church ought to move towards a presumption against all organ transplants (of vital organs) from those who are merely “brain dead” based on the presumption that they are still alive.  When the body is certainly dead, organs may be donated to medical science unless or until medical science sufficiently advances to permit the transplantation of vital organs from those who are certainly dead.   All parts of the human body, even under laboratory conditions, ought always to be treated with the utmost respect and reverence and, in due time, properly buried (not discarded), even if previously incinerated, the ashes ought to be properly buried – in anticipation of the Resurrection of the Body.  

I am acutely aware that someone reading this article may already have given their consent to the transplantation of vital organs from a loved one judged to be dead.  There remains great uncertainty about the definition and understanding of death and (as I explain above) the Catholic Church herself has not yet come to a definitive acceptance or rejection of the concept of “brain death”, and I trust that those who have already graciously consented to the gift of donated organs will derive comfort from the uncertainty of these issues.  We can derive comfort from an event being very unlikely (a plane crash) whilst at the same time having a duty to do everything we can to prevent such a tragedy.   The other heart-breaking scenario would be the decision whether to save the life of a loved one by permitting the transplant of vital organs from a living body.  One could understand and sympathise that in those dreadful circumstances, compromising one’s conscience might be considered the better option.  In a “perfect” world, arguably, one would not have the option to take organs from living bodies.   I am sure that the argument I have presented here can be (and hopefully will be) better formulated and more consistently argued by others who are more expert than I am – I am not an expert at all – both in the medical sciences and in Catholic moral theology.  I have entered the debate very reluctantly, rather wishing that someone else might have stepped into the breach ahead of me!  

Fr. Neil Evans  
Parish Priest
Neath and Glynneath  
16 November 2015      

(i)          The Rev. Fr. Liam Bradley,     “The Definition of Brain Death and some of the Ethical Questions this Raises” 11 May 2012  
(ii)         David Albert Jones,                 “Organ Transplants” CTS/Linacre Centre, 2001  
(iii)        Pope Saint John Paul II,          “Evangelium Vitae” 1995, 15, 63, 96  
(iv)        Catechism of the Catholic Church (2296, 2301)  
(v)         L’Osservatore Romano, 24 September 2008, p 13 (Lucetta Scaraffia)  
(vi)        L’Osservatore Romano, 12 November 2008, p 3 (Pope Benedict XVI)  
(vii)       Roberto de Mattei (ed)             “Finis Vitae:  Is Brain Death Still Life?”  (Rubbettino, 2006).                                

Appendix:  Newspaper Articles  
①          The Times, Saturday 16 March 2013, p 49.   “One afternoon last week a woman with heart disease died whilst undergoing an examination in a hospital on Long Island, New York.  She showed no signs of life for an hour and fifteen minutes after suffering cardiac arrest.  The team of doctors attached her to an extracorporeal  membrane oxygenating machine.  “Her heart restarted.  She made a full recovery.”  Dr. Parnia – a leader in the field – has written, “The Lazarus Effect”, detailing how the dead may be re-animated hours after their hearts have stopped, and calling on all hospitals to adopt these same techniques.  “At the very least, the evidence suggests that consciousness, or the psyche, or the soul, continues to exist for the first few hours at least,” he said.”   “In 1993, the transplant centre at Pittsburgh, the largest in the world...after the heart stopped, the team would wait two minutes, declare the patient dead, and remove his or her vital organs.  When the protocol became public knowledge, there was an outcry and it was withdrawn.” (CTS “Organ Transplants” p 17)  
②          The Times, Saturday 23 March 2013, p 7.   “Carol Brothers...was expected to die after a cardiac arrest stopped her heart beating for 45 members gathered at her bedside...were told that there was no chance of recovery.  Sadly they agreed that medical support could be withdrawn.  Her daughter said, “We were told that she had minimal brain activity”.  (Her daughter’s husband) went to pay his respects.  “When I got there she was sitting up in bed.  I cried then.”  There were tears of relief that Mrs. Brothers’ organs had not been harvested for transplants.  “Her husband Dave was adamant that her organs could not be donated until she was clincally dead: that was something he was very clear on”.”  
③          Daily Telegraph, 10 July 2013   “An American woman woke up in an operating theatre as surgeons were about to remove her organs after she had been declared dead.  She was thought to have died so her family agreed to turn off her life-support machine and donate her organs.” 
 ④          Daily Telegraph, 4 April 2014   “The family of a grandmother who allegedly froze to death after being mistakenly declared dead and put into a hospital freezer has been cleared to sue the California hospital where the woman was held.  A pathologist later concluded that she had been alive when she was put into cold storage, eventually woke up and “damaged her face and turned herself face down as she struggled to escape her frozen tomb”.”  
⑤          Daily Telegraph, 5 April 2014   “A Swedish man who suffered a stroke that paralised his body but left his mind completely conscious – listened in horror to his doctors telling his girlfriend and relatives he was going to die and discussing transplanting his liver and kidneys.  “They took an x-ray of my brain and told my girlfriend that I wouldn’t live” – even though he had yet to be declared officially brain dead.”  
⑥          The Times, Friday 27 March 2015   “A 60-year old grandfather has received Britain’s first “dead” heart transplant.  Until now only beating hearts could be taken from brain dead patients kept alive on ventilators, as surgeons needed to be sure that the organ works.  However, doctors at Papworth Hospital in Cambridgeshire demonstrated that the heart can be restarted in a dead patient, allowing them to check it is suitable for a transplant”.   In other words, the donor’s heart was restarted not for his own benefit, but then to cut out his beating heart to give to someone else.