Abstract

After many years of reflection and debate, there is a clear international trend, indeed a near consensus, to endorse as a matter of ethics and law the modern biomedical conception of brain death as an alternative to the traditional conception of death. Alireza Bagheri has surveyed the current state of the law governing organ donation in eight Asian countries. His research shows that for the purpose of facilitating organ donation, the following countries have adopted the biomedical standard of brain death: Turkey, Saudi Arabia, Singapore, Philippines, India, Japan, Korea, and Iran. In addition, there is an active and ongoing movement in China to also enact a brain death legal standard. On the other hand, the new definition of brain death always has been controversial. It is worthwhile to pause and survey the arguments for and the objections to the now popular conception of human death as brain-death. In light of the arguments over the definition of death and also of a survey of the different legal constraints on organ donation in different countries, the key elements of a model policy that incorporates the best of all of these different approaches will be defended. This model policy incorporates a pluralist standard of death, which allows individuals to choose a cardio-respiratory, whole brain, or higher brain conception of death. It also includes what I call a donor-recipient priority principle that gives priority to organ donors as recipient of organ transplants. Rather than requiring an organ donor card, a model policy should be based on a principle of presumed consent for organ transplant and a principle of surrogate consent. Finally, although a principle requiring family consent is too restrictive, family consultation in these important decisions should be encouraged by physicians and public policy.