Body-snatching images flashed across Dr. Tom Oliverson’s mind when he first heard of a case last year in which a Harris County judge allowed an unidentified man’s organs to be harvested after attempts to find relatives who could provide donor consent proved futile.
The Cypress anesthesiologist has served on numerous teams that have harvested and transplanted hearts, lungs, kidneys and livers, but they’d always had permission from the individual or loved ones. He’d never heard of what some critics call involuntary organ donation.
“Reading about it, I was quite disturbed,” said Oliverson, who was then a recent victor in the Republican primary and is now a freshman in the Texas House. “It sounded like a police state. I wondered, ‘Is this the new norm, where human beings are treated like commodities, where organ donation decisions are made without knowing the individual’s beliefs, wishes?'”
Oliverson wasted little time before sponsoring legislation to stop the legal but little-known practice, which occurs not just in Texas but around the nation. The bill is opening a window on the gulf between those who believe that informed consent and patient autonomy are absolute and those who believe the most humane response in such cases is to use salvageable organs to save lives.
The 2016 Houston case involved a judge, but in most such John and Jane Doe cases, a hospital administrator grants permission.
“The current law allows trusted officials who are most knowledgeable about the medical, legal and ethical responsibilities involved to consider how to best honor the needs of the living and value the most likely wishes of the dead and their family members,” LifeGift, Houston’s organ procurement organization, said in a statement. “Denying a person the right to leave a legacy because they died alone is not an ethical solution when it also means turning one death into many.”
Despite opposition from LifeGift and sister organizations, Oliverson’s bill is gaining traction in the Legislature.
So-called involuntary organ donation is rare – so much so that many doctors and bioethicists contacted by the Chronicle weren’t aware of it – but not as rare as many assumed last year. Oliverson’s subsequent research found that organs were removed from individuals in Texas without their or their loved ones’ consent on 13 occasions the last five years. Only the one involved a judge’s ruling.
Current law allows hospital administrators and anyone else with corpse-disposing responsibilities to harvest a deceased individual’s organs whose wishes aren’t known after failed attempts to track down family. Oliverson’s bill would strip those agents of such authority and require permission only be granted by a family member, a caregiver not affiliated with the hospital or a person acting as guardian at the time of death. It says an organ procurement organization may not petition a court to “become the decedent’s guardian or otherwise be authorized to make an anatomical gift of the decedent’s body or part.”
Oliverson expressed concern that cases in which organs are removed without permission tend to play out among society’s “vulnerable people” – the underclass, immigrants.The bill is endorsed by the state’s organizations of doctors and hospitals. A spokesman for the Texas Hospital Association said the group supports the law because many of its member institutions have enacted policies forbidding its administrators from making such decisions.
“Generally, administrators at hospitals are reasonably comfortable making these calls,” said Kevin Myer, CEO of LifeGift. “In the absence of loved ones or a guardian, they’re accustomed to making decisions about how to dispose of bodies. It’s not an out-of-left-field process.”
Among those hospitals that don’t grant organ-harvesting permission is Memorial Hermann, where a man was airlifted for emergency treatment in March 2016 after collapsing in a parking lot. By the next morning, he was close enough to death that the Texas Medical Center hospital notified LifeGift – they had a potential donor with a seemingly healthy heart, lungs, liver, kidneys and pancreas.
When LifeGift couldn’t identify the man nor locate family members, it turned to the rarest of options – filing an emergency petition in Harris County Civil Court, citing the need to harvest the man’s organs within 24 hours. It marked the first time in the organization’s 30-year existence it had sought such an emergency petition in a John Doe case.
The request was granted by Judge Erin Lunceford, who’s no longer on the bench. A LifeGift lawyer said she asked a lot of questions and “really thought about the issue,” but acknowledged that no lawyer was appointed to represent the deceased individual. The hearing took less than a half hour.
A day later, LifeGift officials were able to track down the man’s family in El Salvador and got their permission to donate the organs. They ultimately transplanted the heart and two kidneys, “saving three lives,” they said. They added that without the judge’s ruling, the family’s permission would have come too late, after the man’s organs were no longer usable.
But Oliverson, a Baylor College of Medicine graduate who’s been in practice in Houston the last 14 years, wonders why LifeGift couldn’t have simply asked Memorial Hermann to keep the man, brain dead, on mechanical support a little longer, keeping his organs functioning while the search continued. Procurement organization officials stressed the “time-sensitive” nature of harvesting, but Oliverson noted that with adequate blood flow, organs wouldn’t degrade in such a short time.
Mostly, though, supporters of Oliverson’s bill complain that involuntary organ donation is a contradiction.
“Taking organs without consent is a violation of an individual’s personal autonomy, a key component of moral philosophy,” said William Winslade, a Houston-area medical ethicist who testified in support of Oliverson’s bill at a hearing of the House public health committee in March. “Organ donation is a choice, an altruistic gift that individuals make on the basis of their personal autonomy. A gift can’t be ‘taken’ by a stranger.”
Procurement officials argue that people lose notions of autonomy and consent after death. Noting that most people want to donate – more than 80 percent in surveys, from 60 percent to 70 percent in practice – they also say that harvesting organs is more likely to align with an unidentified person’s wishes than burial with all their organs intact. They say they have never found a family, after the fact, who complained about their decision to remove an organ without consent.
They also noted that only 1 percent of all deaths in hospitals make for organ donor candidates, so each one is valuable.
All of which might seem to suggest procurement organizations favor automatically making donors of the newly deceased unless they “opt out,” a policy common in many European countries and the linchpin of another Texas bill, which hasn’t made it out of committee. But that bill, too, is opposed by LifeGift and sister organizations, fearful it’d cause a backlash.
They note that support for organ donation is growing, from roughly 10 percent of the state’s population 10 years ago to 47 percent today. More than 9.3 million Texans are now registered, and more than 1 million new people join the registry each year. They prefer to continue building support for the opt-in strategy.
So is there any compromise in John Doe cases? Art Caplan, director of medical ethics at New York University, said that if consent requirements are going to be bent, the process needs to be made more transparent, permission no longer quietly given by hospital administrators. He says that there should be judicial involvement and the post-death appointment of an emergency guardian.
In any event, the fate of Oliverson’s bill is far from clear. It enjoys bipartisan support, he said, and it passed the House public health committee 7-2. But procurement organizations represent a powerful lobby and the companion bill, sponsored in the Senate by Dawn Buckingham, R-Lakeway, also a doctor, was only just presented in a Senate committee hearing last week. No vote was taken.
“I want to emphasize organ donation is very important to me personally, something I consider a wonderful last act that saves lives,” said Oliverson, noting his uncle is a two-time recipient. “I just feel strongly that these are anatomical gifts. That implies permission from the giver.”