All procedures performed in the intensive care unit (ICU), regardless of the final outcome, are performed on and for a human being who has inherent and inalienable rights, regardless of his or her medical condition . Compliance with the ethical requirements ensuring that these rights are respected underpins and legitimizes the technical healthcare procedures. Consequently, no technical requirements, however legitimate, can override the ethical requirements, failing which the patient would be a mere object to be used for a strictly technical activity devoid of humanity. These ethical requirements govern the activity of intensivists by framing their goal and mission, which consist in saving lives whenever possible and, otherwise, in providing continuous care until death occurs, under the best possible conditions. The goal and mission of organ retrieval teams are no less legitimate but differ from those of intensivists. Organ retrieval teams seek either to save the life of a person who will possibly, probably, or certainly die without organ transplantation or to improve the quality of life of a person who has a chronic disorder. The technical procedures needed to collect organs are inseparable from the underlying ethical requirements, including those dealing with the body of the donor (i.e., the obligation to perform reconstructive procedures that restore the human appearance of the body).
What is a Maastricht type III donor?
In Maastricht type III donation  (also known as controlled donation after circulatory determination of death [DCDD]), cardiocirculatory arrest is awaited, as it results from the withdrawal of life-sustaining treatments. In this situation, cardiocirculatory arrest is not induced but is expected to occur, in a patient for whom no effective treatment options are available and as a result of a treatment-withdrawal decision made in agreement with advance directives (if available), the family, and the healthcare team. The occurrence of cardiocirculatory arrest shortly after treatment withdrawal may allow the collection of organs for transplantation (only the liver, kidneys [and cornea] are considered for collection in Maastricht type III donation by French regulatory authorities).
Providing continuous end-of-life care takes precedence over organ retrieval
The withdrawal of treatments that have become useless, disproportionate, and unreasonable and whose only effect is to maintain life artificially should be performed in accordance with French law (the Léonetti law ): treatment withdrawal is not performed with the goal of allowing Maastricht type III donation. Treatment withdrawal aims to allow death to occur, that is, to avoid prolongation of the dying process by interventions that are useless, costly, and possibly degrading. The treatment-withdrawal decision can only be fully legitimate when placed in the clinical context, which is unique to each patient. As long as the patient is alive, he or she cannot be viewed as a potential reservoir of organs or other materials that could be put to use, failing which the patient would be robbed of his or her death and considered, not as a finality, but as a means put prematurely to use by others.
Giving priority to the desire to save lives via organ retrieval by instrumentalizing a dying patient at the expense of providing care and ensuring dignity throughout the dying process, as set forth in the Léonetti law, is ethically unacceptable. The issue of the precedence of one reason for acting (to save lives) over another (to provide continuous care to patients) raises the issue of the status of the individual. Lives in this case are perceived as able to replace one another, instead of biographic experiences that are unique to each individual. This position that views the human being from a utilitarian perspective, perhaps even as an instrument, converts the broad scope of life, which encompasses the dying process, to narrowly organic considerations. It may seem to be justified by the current severe shortage of organs, which causes considerable harm to patients who experience increasing ill health or who die because no transplant is available, as well as to the organ retrieval team, for whom the well-being and survival of transplant-list patients are crucial objectives. The argument that organ retrieval is justified because transplantable organs are in short supply suggests that these organs, and the lives they save, may have value independently from the person who donated the organs, as if one had a body instead of being a body.
For the ICU team, reasoning in terms of “potential organ donation” and, to an even greater extent, of “necessary preparations” before the end of the sequence of patient care required by treatment withdrawal contradicts ethical, psychological, and human principles in a way that is untenable. This contradiction must not be overlooked. Such a change in the paradigm of care during a sequence defined by its goal, unity, and cohesion would generate severe or even unbearable tensions among the healthcare team (physicians and other healthcare professionals), as well as mistrust and suspicion responsible for overwhelming anxiety among the family members and friends of the patient. This relinquishing of the principles of beneficence and nonmaleficence  to support a reckless view of the sole distributive justice principle would harm the dying patient and the family and also might adversely affect the alleged goal, namely, organ retrieval. Even the tiniest deviation from ethical principles during organ retrieval after cardiac arrest (e.g., hastening of ineludible cardiac arrest with the goal of ensuring optimal organ retrieval) would—and rightly so—attract the attention of the media and cause legitimate outrage among the general public. Any situation that is handled as justifying instrumentalization of the patient (beyond the unique features of the individual case generating the emotional reaction) would probably be counterproductive, not only for non-heart-beating donation but also for donation after brain death. No one would benefit from violating the bond of trust that underlies the organ retrieval and transplantation process.
Moral validity of the actions taken by the intensive care unit team
The following points are crucial for the ICU team.
The team should act as if Maastricht type III donation did not exist. This attitude is a fabrication but constitutes a valuable firewall against ethical violations. The result is scrupulous adherence by the team to the separation between two different temporalities, namely, the dying process as it is allowed to unfold and the procedures performed to enable postmortem organ retrieval.
The team should be acutely aware of the difference between the death of the patient, in the biological and human meanings of the term, which is irreversible (as reflected by the entry on the death certificate indicating that death is permanent), and the dying process, during which the organs and body components stop functioning over a variable period and which continues to contribute to the meaning that will be given retrospectively to the patient’s life. The gap between these two concepts is the space in which collection of viable organs from the body of a dead person can occur.
Which patients with withdrawal decisions may be candidates for organ donation after their death?
Organ donation may be considered if the following criteria are met:
The treatment-withdrawal decision was made independently from any considerations about the potential for subsequent organ donation, and
Death occurred immediately after treatment withdrawal.
Ideally, these patients should be defined by consensus among all the learned societies involved (SRLF, SFAR, and SFMU in France). Until such a consensus is achieved, the SRLF suggests considering potential organ donation after death in patients with head injuries, stroke, or anoxic brain injury with coma whose death seems unavoidable in the short term but who nevertheless do not progress to brain death.
For the moment, other patients with treatment-withdrawal decisions and the small number of patients who ask for treatment withdrawal are not considered to be potential donors. Indeed, in such situations the approach would have to be highly specific; in particular, any opinions expressed spontaneously by the patients would have to be taken into account. Consequently, the SRLF has decided not to take position on these situations for the time being.
Importance of publicity and the national debate
At present, donors usually envision organ retrieval after a fatal accident. In this scenario, an unexpected event occurs, putting an end to a life during which the individual may have made decisions, such as carrying an organ donor card. Efforts are needed to raise awareness in the general public about the possibility of organ retrieval after death due to a devastating disease for which there is no reasonable hope for improvement but which may last for some time.
An information campaign is needed before the implementation of Maastricht type III donation to ensure that appropriate information is available to all those involved: the scenario must be accepted by the donors, the healthcare teams, and the recipients. A survey would probably be useful to identify any possible ethical stumbling blocks before implementing Maastricht type III donation.
The debate about explicit or presumptive consent , in both cardiocirculatory death and brain death, requires extensive and repeated information of the general public about the resumption of non-heart-beating donation. Indeed, most people are probably not adequately informed and, consequently, cannot refuse or accept to be donors with full knowledge of what is involved. It is worth pointing out that implied consent does not refer specifically to brain death or cardiocirculatory death but to organ donation after death. The debate should probably take place at the level of the population, which, in a democracy, should be in charge of these fundamental issues that deal with the therapeutic relationship, the role for medicine, and the status of the individual as a human being. The introduction of Maastricht type III donation provides an opportunity for taking the debate beyond the healthcare community and for ensuring transparency of all transplantation activities in general. There is an opening for organizing an exhaustive information campaign with all the learned societies involved, the authorities responsible for regulating transplantation activities, organ retrieval and transplantation networks, patients on transplantation lists, healthcare professionals involved with transplantation, legislators, and the general public, to clarify issues raised by organ retrieval and the conduct of procedures for organ retrieval, including the legal, technical, and moral requirements.
Transparency at all the steps of the process would have to be ensured via sufficient media attention. A ruling from the national advisory ethics committee (CCNE) would be helpful.