Indiana Health Law Review, Vol. 6, No. 1 (2009), pp. 17-45. Originally uploaded at SSRN

Abstract

In October of 1987, Canadian doctors artificially sustained the life of an anencephalic infant so that her organs could be transplanted into another child, touching off a fiery debate. At the request of her parents, doctors connected Baby Gabrielle, who was born missing most of her brain, to a respirator before flying her to Loma Linda, California, where her heart was transplanted into the world's youngest recipient of a heart transplant. While Baby Gabrielle's parents insisted that their daughter's organs be used in this manner and were presumably happy with the resulting transplant, one of Baby Gabrielle's doctors expressed qualms about his role in the saga. Almost immediately, a firestorm of debate ignited as parents of unborn children with anencephaly began offering their children's organs for use in similar procedures. Critics quickly began warning of slippery slopes and difficult moral questions. This continuing debate calls into question the medical propriety and the usefulness of current medical definitions of death. It also implicates even more fundamental issues, questioning what is required for a life to be considered fully human and also the nature and extent of respect, both legal and medical, warranted by such a life.

This Article attempts to demonstrate that organ donation from anencephalic infants can be both beneficial and morally justifiable. Section I discusses the biological and physical manifestations of anencephaly. Section II introduces the current need for infant organs for transplantation, the possibility that anencephalic organs could address some of that demand, and the basic ethical positions both for and against the allowance of anencephalic organ transplantation. Section III discusses the dead donor rule, the legal obstacle which currently makes anencephalic organ donation legally problematic. Section IV discusses possible legal approaches to permitting organ transplants from anencephalic donors: the abandonment of the dead donor rule would cause too many undesirable consequences; the classification of anencephalic infants as non-persons offends society's general ethical norms and creates slippery slope problems that are in the realm of possibility; however, the classification of anencephalic infants as persons born into a state of death permits anencephalic organ donation without denying anencephalic infants personhood status and opening Pandora's box. Section V lays out legal safeguards necessary to prevent the abuse of an anencephalic organ donation scheme in the event that mankind perfects its ability to intentionally create anencephalic human organ donors. Section VI addresses potential class-related social concerns posed by anencephalic organ donation while arguing that a facially-just transplant policy should not be tainted by independent social problems, such as lack of medical care for the poor. This Article concludes by advocating for the sake of infants in need of organ transplants a properly tailored transplant policy allowing parents of anencephalic infants to donate their children's organs for use in transplants.