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Here's more (the references and tables are available from the source)

Recent debates in the United States and abroad have also suffered from emphasis on the dead-donor rule in thinking about the ethics of organ procurement. Several years ago, the Council on Ethical and Judicial Affairs of the American Medical Association concluded that "It is ethically permissible to consider the anencephalic as a potential organ donor, although still alive under the current definition of death," if, among other requirements, the diagnosis is certain and the parents give their permission ( 45). This conclusion was grounded in the Council's judgment that organ procurement from anencephalic newborns would not be an unacceptable harm to the infants because of their extreme degree of neurologic impairment. The Council eventually reversed its view, at least in part because it was not compatible with the dead-donor rule ( 46).

Both the Japanese ( 47) and the Germans ( 48) have been slow to accept organ transplantation, in part because of a general unwillingness to accept that brain-dead patients are really dead. To enable the development of organ transplantation, the Japanese government recently adopted a compromise position, which essentially states that patients who meet brain death criteria may be declared dead, but only for purposes of transplantation. In this case, brain death is defined operationally, and this allows patients who want to be organ donors to be classified as dead so that organ procurement can proceed in compliance with the dead-donor rule. Here again, the dead-donor rule is serving only to obfuscate the central ethical issue, which is whether a patient who desires to donate would be unacceptably harmed by the removal of life-sustaining organs.

Transplant clinicians and the public may well object to reframing the ethical foundations of organ procurement in the way that we have proposed because if patients are not declared dead before organ procurement, then it seems there is no choice but to conclude that the patients are being killed by their doctors. Examination of the lay press would indicate that this is of much greater concern to transplant clinicians than it is to the public. Many journalistic accounts of situations involving brain death include language similar to this quote from the New York Times: "The brain dead are candidates for a donation, but the operation generally must be performed before death" ( 49), or this quote from the Boston Globe: "(the patient) was being kept alive so… doctors could harvest his organs for donation" ( 50). The frequency of this mistake in newspapers and magazines ( 51), and the lack of outraged response from the public, might indicate that the public is fundamentally confused about whether patients are declared dead before transplantable organs are procured. It is an unknown empirical question whether patients and families would be as willing to give permission for organ retrieval on the basis that the patient is in an irretrievable coma as they are on the belief that the patient is dead, but these suggestions from the lay press indicate that the question has yet to be settled.

The concern of clinicians is understandable, but may also deserve reexamination. Clinicians increasingly struggle with the emotional weight of the moral agency that they must bring to life-and-death decisions. Only a few decades ago, physicians argued strenuously that withdrawal of mechanical ventilation from a woman in a permanent vegetative state was unethical because it would mean that the physicians had killed her ( 52). Today, the majority of deaths that occur in intensive care units follow the withholding or withdrawing of some life-sustaining treatment, often the withdrawal of mechanical ventilation ( 53). The point is that physicians must often take actions that result in the imminent deaths of patients and that what was seen as unethical just a few years ago is today not only acceptable, but even ethically required. When physicians remove patients from a ventilator at the end of a terminal illness, we do not say (either descriptively or normatively) that they killed the patient; the cause of the patient's death is attributed to the underlying disease. Parallel reasoning would apply to patients who choose to donate their organs as part of the dying process. In both ventilator withdrawal and organ procurement, the physician acts, and this act is the most proximate cause of the patient's death. In both cases, the physician is not morally responsible for the patient's death-the morally relevant cause of death is the patient's disease. In both cases, the physician is acting with the patient's consent in ways that respect the wishes of the patient and that are in pursuit of morally worthwhile ends. The present practice of defining these patients as dead before organ removal may serve to ease the consciences of the physicians involved, but it does not change the facts of the matter and only serves to perpetuate our confusion about the meaning and ethical import of brain death.

The advantage of our proposal is not that it makes the ethics of organ transplantation any easier. The difficult question "What is death?" is replaced by the equally difficult question "When are patients sufficiently close to death or sufficiently neurologically impaired that they can choose to be an organ donor?" The first question is important, but with the exception of organ transplantation, is adequately addressed by the traditional criteria of circulation and respiration. The answer to the second question would need to be determined through a process of medical, social, and legal deliberation. The advantages of our approach are that (unlike the dead-donor rule) it focuses on the most salient ethical issues at stake, and (unlike the concept of brain death) it avoids conceptual confusion and inconsistencies

Social practices change slowly, and usually for good reason. Just as development and implementation of the concept of brain death took decades, a shift to the ethical paradigm that we propose would likely take at least as long. Such a shift would also require major changes in the current legal interpretation of causation, such that the procurement of transplantable organs before death would not be deemed to be the legal cause of death. These changes would need to ensure that the legal cause of death would be defined as the patient's underlying disease, just as is currently the case when life support is withdrawn. Although these legal hurdles would be very significant, they would not be unprecedented, as evidenced by similar changes that have occurred in the legal view of withdrawal of life support and the definition of death.

In a larger sense, if the immunologic hurdles to xenotransplantation can be overcome, then the ethics of procuring organs from humans will become moot, and our proposal will be irrelevant. The concept of brain death will then disappear from textbooks and the medical literature, illustrating the degree to which the concept was never more than a social construction, developed to meet the needs of the transplantation enterprise during a crucial phase of its development ( 54, 55).