The Uniform Law Commission, also known as the National Conference of Commissioners on Uniform State Laws, has been around for some130 years.  The goal is to help each state adopt well-conceived and non-partisan legislation to render statutory law be clear and stable.

And, last week, one of their committees began discussing the laws regarding brain death.  You may recall that I took great umbrage with the laxity in these declarations of brain death across the United States..

In 1986, when the head Sfardi rabbi (Ovadya Yosef) declared that Jews could finally donate their organs (which had been disallowed for centuries to ensure the “holiness of the dead’ would not be compromised), I rushed out the very next day to add my name to the organ donor list.

Until I found out that many states did not follow the established rule to determine death- that one must be brain dead before organs can be harvested from the body.  Which meant that I (or my heirs) could be breaking the law by letting the state use my organ donor card to assume they could recover organs.  (I still will allow my organs to be donated- but that time determination will be made by my medical proxy who will ensure that the determination of brain death has been completed.)

You see in the USA, some states have take a short cut to determine death.  Some may declare a person dead when ones heart and lungs have ceased working.  Others follow the original definition that all brain function has ceased- regardless of the functionality of the heart and lungs.

And, now the Commission has begun the two year process (under the direction of Judge Samuel Thumma of the Arizona Court of Appeals) to develop a new uniform standard.  Except, the committee has already determined their review and analysis process will take three years to complete. (This is a contentious issue, after all.  It’s not just a medical issue- there are social and legal ramifications [such as setting the time for mourning and inheritance. And, the way various states exercise the law – leaving a gap between the legal determination of brain death and how doctors interpret it- erodes public trust.  [It certainly eroded mine!])

The current review was prompted by a publication in the Annals of Internal Medicine.   The article documented that many physicians used their own definition of death- which is called”NRP-cDCD” or the normothermic regional perfusion with controlled donation after circulatory determination of death.  This process, which may provide better quality of organs to be donated, bypasses (or negates) the determination of brain death of the donor.  (It actually causes the brain death of the donor! Which clearly means the donor is NOT dead when the organs are being harvested.)  And, the article, from the American College of Physicians,  requested physicians cease using this protocol.

(And, now, I note that the committee is considering removing the concept of brain death altogether.  James Bopp Jr, general counsel to the National Right to Life Committee, is worried that a fetus would be denied legal protection since it lacks functions that we normally call human.  Yes, I would agree- which is why claiming a fetus is a live human being killed by abortion is nothing but malarky- or a religious fiction, that violates my religious principles among others. Bopps proposal was dismissed, but he plans to continually bring it up during discussion.  Of course, even though it will probably exacerbate the shortage of organs to be donated, since brain death will no longer be the viable concept.)

This is going to be an interesting debate!