Now, what Glannon points out is that death, in the present day of organ donation regulations, has become a purely man-made institution: Death is whatever is defined as death in relevant legal statutes. So, "brain death" is one such legal institution which makes vital organ donation compatible with the DDR, while "heart death" makes these two much more difficult or even impossible to combine. But these legal constructs do not become ethically relevant merely because we call them "death". To see what is ethically relevant, we have to look for what moral reasons there are for or against taking a vital organ. We may then compare the outcome of such an analysis to the DDR. This, it would seem, is what Glannon does, and he points to four interconnected reasons when it comes to the case of severely and irreparably brain-damaged patients:
1. That the removal of the vital organ does not harm the donor
2. That an earlier death does not deprive the donor of any meaningful or valuable life
3. That the removal of the organ and its subsequent use for transplantation is in line with the donor's known wants, as expressed by him-/herself or a validly appointed proxy
4. That the donation actually leads to a successful transplantation
What matters is not that the donor is or is not dead, or when death is declared, but that the donor or a surrogate consents, that the donor has an irreversible condition with no hope of meaningful recovery, that procurement does not cause the donor to experience pain and suffering, and that the donor’s intention is realized in a successful transplant.From this Glannon also concludes that doctors or relatives who try to forestall or delay a donation of a vital organ can be argued to wrong the donor. This is called "paradoxical" by the BioEdge commentator without a hint of any argument. However, the conclusion would seem to follow swiftly from premises 1 and 3 – as long as conditions 2 and 4 are assumed to be met. Not acting on the donor's wants would be one way of going against those of his/her interests that are assumed to be of ethical relevance also by supporters of the DDR.
Glannon's conclusion is that:
We should reject the view that organ donors are beyond harm only after they have been declared dead and that they are harmed if organ procurement occurs before this timeThus falls the ethical basis of the DDR, or so it may seem. However, while I accept Glannon's argument, I do not accept that it is a valid reason to remove the DDR. That is, while Glannon does support the idea that death (however it happens to be defined in a legal statute) is not by itself ethically relevant when looking at single cases (what is relevant is the presence or non-presence of harm, deprivation of goods or disrespect of wants), it does not follow from that claim that the DDR should be taken out of organ donation regulation.
The problem with Glannon's argument is that it assumes that the only reason for a legal rule is that it immediately reflects morally relevant facts in single cases, or that it gets it right from an ethical point of view in single cases. However, that is clearly not the only support for legal rules that there are. I, on my part, would argue that the strongest support of legal rules is about the overall impact of the legal system containing them. So, it is actually not important if legal statutes echo ethically valid norms or if they get it ethically right in every single case (or even most cases). The importance is about the legal system as whole getting it reasonably right on the level of the entire society, and that this system has enough popular support for this body of regulation to be sustainable. This may imply that some legal rules do echo ethical norms, or track them in application, however, that is a side-effect rather than a justification. What justifies the rule is that the system functions well on the whole on the basis of some plausible set of values.
Now, in light of this, we can see what is the problem with the idea of removing the DDR. The problem is, simply put, the strong reasons for not tampering with the legal rule against murder, manslaughter and other forms of unjustified homicide. For this is what we would have to do if we are to take away the DDR – we would have to say that intentionally cutting up a living person so that he or she dies is sometimes not a crime. The problem, of course, starts when we think about how to formulate and implement this sort of clause in a way that would be both legally secure and certain, socio-economically efficient (with regard to the problem of organ donation as well as the general interest of society not to have people going about killing each other for whatever reason, and the resources that would have to be spent of running the administration of the clause) and, on the basis of that, ethically justified. Now, I'm not trying to belittle the problem of the shortage of donor organs, that is indeed a problem. But is it a problem of a gravity that motivates starting to play around with the core statute in criminal law? I don't think so.