A Committee of the Maryland legislature held a hearing last week on a bill that would grant health care surrogates the power to donate non-vital organs, such as a kidney or lobe of a liver, of a person who is diagnosed to be in a persistent vegetative state (PVS).

According to attorney and author Wesley Smith, the bill, known as HB 449, would allow  the donation of non-vital organs if it is in accordance with “the wishes of the patient as previously expressed by the patient; or if a determination by the surrogate that the donation is consistent with the patient’s relevant religious and moral beliefs and personal values.”

In other words, because the Catholic church approves of organ donation, a surrogate could elect to donate organs from a Catholic in a PVS even though that person never agreed to the procedure.

“Unconscious patients would hardly seem to be in a state of health to permit such surgeries. But surely when people can’t make their own decisions, surrogates–as fiduciaries–must work solely for the medical benefit of the incompetent person,” Smith points out.

“I know people will say, ‘What if it is the patient’s child’ or some such.  But we can’t do it!  We can’t treat incompetent patients as objects for the benefit of others.  This proposal is merely the latest attempt to permit unconscious patients to be used as so many organ farms. And if the surgery kills the patient, why then other organs might be available.  . . . Good grief!”

The potential for abuse is so broad that a multitude of groups have registered concern about the bill.

” The bill allows surrogates, including a ‘friend,’ to make decisions to donate a part of another person’s body based on that person’s religious, moral or personal values.  That is too vague and subject to misuse,” said the Maryland Disability Law Center.

Marie Hilliard, JCL, PhD, RN, Director of Bioethics and Public Policy, submitted testimony on behalf of the National Catholic Bioethics Center. She argued against presumed consent by the person diagnosed in PVS, saying, “House Bill 449 violates the right to informed consent of the most vulnerable of persons, subjecting them to a procedure that could be lethal to them.”  She then addresses a proposed amendment to the bill which would limit the organ donation authority to people diagnosed in PVS from whom life support is to be withdrawn.

Stephen Mikochik, Temple University law professor and Chair of the National Catholic Partnership on Disability (NCPD), also filed testimony on behalf of NCPD. 

“. . . [B]y requiring physicians to extract body parts solely for the benefit of others, without clear evidence of the patient’s consent, H.B. 449 forces physicians to violate their ethical duty . . . to hold “the best interests of the patient as paramount.”

“. . . [B]y targeting PVS patients as candidates for invasive surgery and organ removal solely to benefit others, H.B. 449 singles out a class of persons, disabled under civil rights law, for adverse treatment. This could constitute illegal discrimination.”

Even more chilling, he points out that “if passed, only legislative fiat would stand in the way of expanding H.B. 449 to cover those with serious dementia or similar cognitive impairments on the grounds that, like those in PVS, such patients ‘would hardly feel the loss’.”

Diane Coleman, President and CEO of the disability rights group, Not Dead Yet, also submitted testimony which points out that the diagnosis of PVS is notoriously unreliable.

“From studies reported in such esteemed publications as the British Medical Journal to expert interviews reported in the New York Times Magazine, the consensus has emerged that PVS is about 40% misdiagnosed,” she writes.

”  . . . If a PVS diagnosis once appeared to provide a reasonably reliable basis for differentiating statutory rights, this is clearly no longer the case.  A forty percent misdiagnosis rate is only a little better than the flip of a coin.  A PVS diagnosis should not make a person eligible for having their organs donated by a surrogate any more readily than other persons who are deemed incapacitated or unable to make and communicate their own health care decisions.”

She also points out that even people who are correctly diagnosed as being in a PVS can regain consciousness for anywhere from three to 12 months. However, “It is not uncommon for doctors to assume the worst and advise family members to withdraw care early. They do so in part because they see their duty as helping loved ones face reality,” she says.

Such a “rush to judgment” concerning the permanence of a PVS diagnosis is nothing short of a death sentence.

“A PVS diagnosis should not make a person eligible for having their organs donated any more readily than other persons who are deemed incapacitated or unable to make and communicate their own health care decisions.  It is not acceptable to construct a statute on the quicksand of a PVS label.”

The bill was introduced by Maryland delegate Dan K. Morhaim, M.D. and, according to Coleman, it was apparently constructed in response to a tragic situation.  

“As is so often true, an individual case can sometimes lead to bad law, but hopefully not this time,” she said.

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