Two principles currently govern ethical organ removal for donation from patients at the end of life. The first is the dead-donor rule (DDR): Organs are not to be taken from a patient who is still living. Rigorous adherence to this rule prevents any appearance that a person is being killed for her organs.

The second is the Uniform Determination of Death Act (UDDA). Promulgated in 1980 by the Uniform Law Commission, it identifies the conditions under which a patient is to be determined to be dead:

An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.

Strictly speaking, neither the DDR nor the UDDA is law; the first is a widely held ethical norm that governs organ procurement; the second is a model law, intended, as the name implies, to shape uniform legal policy across all the states. And indeed, most states in the U.S. have adopted either the text of the UDDA directly or something very similar.

Now, the Uniform Law Commission is considering changes to the UDDA. The proposed modifications are controversial but are prompted by genuine difficulties with the intersection of the dead-donor rule and the Uniform Determination of Death Act as currently understood and practiced.

Consider, to start, the first, “cardiopulmonary” clause of the UDDA, which requires “irreversible” cessation of circulatory and respiratory functions. In essence, this tracks the traditional way in which death, understood as the irreversible cessation of the integrated functioning of the living organic being, was determined: As with other animals, a human being was known to be dead when he had stopped breathing, no pulse could be detected, and there was adequate confidence that neither function would restart on its own.

Today, of course, patients who would not breathe on their own can be maintained on a ventilator, so that their heart and lungs continue to function. Such patients are, by the UDDA, not dead until the ventilator is removed and respiratory and circulatory function cease “irreversibly.” But the window within which organs can be removed without damage after the point of death is relatively small and, for some, a matter of minutes.

Beginning in Pittsburgh in the 1980s, hospital protocols were developed both to meet the criteria of the UDDA and to procure organs within that window: Patients taken off the ventilator were left alone for a period of time, usually between two and five minutes, before organ procurement began. In this way, cessation of cardiopulmonary activity was determined to be “irreversible,” and death determined to have occurred, so as to permit “donation after cardiac death” (now called “donation after circulatory death”).

The problem with this approach was that “irreversibility” seemed to many a transparent fiction: Resuscitation efforts could be undertaken and the heart and lungs restarted in some or many cases.

Thus some have argued that intellectual honesty requires a change from “irreversible” to “permanent.” Cessation is irreversible if it can’t be reversed; it is permanent if it won’t be. In other words, if attempts at resuscitation are not planned for the patient, then the patient is dead.

Accordingly, this is the first of three changes sought by the Uniform Law Commission, which proposes as part of a “revised Uniform Determination of Death Act” (rUDDA) that an individual be deemed dead who has sustained “permanent cessation of circulatory and respiratory functions.”

That change brings the determining criteria into line with clinical reality, but two other approaches also have been discussed. The first would urge that clinical practice match the facts: If death requires irreversible cessation of cardiopulmonary activity, then organ procurement should wait until that point has genuinely been reached.

On the other hand, some have argued that we should “lean in” to the fact that still-living human beings have for some time served as the source of organ donation and abandon rigid adherence to the dead-donor rule. Assuming full prior consent from potential donors, and adequate safeguards, they argue that procurement could ethically proceed in the final moments of life; I’ll return to this below.

The second clause of the UDDA is even more fraught. Recall the “neurological” criterion: An individual who has suffered “irreversible cessation of all functions of the entire brain, including the brain stem, is dead.”

The Uniform Law Commission proposes to change this to “permanent (A) coma, (B) cessation of spontaneous respiratory functions, and (C) loss of brainstem reflexes.” The change again involves modification of “irreversible” to “permanent,” but even more significantly, it eliminates the general physiological standard that death comes with the cessation of “all functions of the entire brain” and replaces that with the three clinical criteria that are commonly used to determine that a patient is dead neurologically.

These proposed changes intersect with multiple controversies. Two concern the relationship between brain death and death as such; one concerns the adequacy of the clinical criteria in use for determining brain death.

Going back to the advent of the Uniform Determination of Death Act (and before), some philosophers and physicians have advocated a more “personist” approach to death. On this view, death matters to us not inasmuch as it is the end of an organism’s life, but inasmuch as it is the end of a person, understood as something more or less capable of conscious thought and reflection, which are considered higher brain functions. (This separation of the “person” from the living human being will be familiar to many from debates over abortion.)

By this approach, a person might die earlier than the organism — the human being — associated with that person. Terri Schiavo, who lived several years in a persistent vegetative state (and was therefore not brain-dead by the UDDA), died as a person, on this view, long before her biological life ended. Yet if Terri Schiavo was essentially a living organism, a human being whose life possessed intrinsic dignity and worth, then it was indeed Terri Schiavo who was killed, wrongly, by being starved to death.

The rUDDA does not opt for the “higher brain” account of death toward which personists are sympathetic, but it does strike some as a potential step in that direction, in virtue of its eliminating the requirement that the whole brain cease to function.

From a quite different direction, there are concerns that whole-brain death might not adequately line up with the biological death of the organism, the human being. The neurologist Alan Shewmon has spent decades chronicling the ways in which some wholly brain-dead human beings seem nevertheless to behave like living organic wholes — maintaining homeostasis, preventing infection, or gestating a child — if continuously maintained on life support.

Shewmon’s arguments are not uniformly accepted even by the most conservative defenders of human life. Germain Grisez, for example, in the years before his death argued along with Patrick Lee that brain-dead individuals are not mammals, since they possess no root capacity for sensation; and Maureen Condic and Melissa Moschella have argued that, appearances to the contrary, wholly brain-dead individuals are not functionally unified and integrated organic wholes. Their lack of organismal integration, however, is masked by the effects of artificial life-support systems.

Finally, some high-profile cases of faulty determination of death by neurological standards have led to increased scrutiny of the criteria on which the revised UDDA relies. In the well-known case of Jahi McMath, who was declared brain-dead in 2013 but subsequently went through puberty and showed signs of responsiveness to communication, application of those criteria seem to have delivered a mistaken verdict, as even some who initially believed her to be dead eventually conceded.

On at least prudential grounds, then, the rUDDA seems problematic, taking potentially fallible clinical criteria and elevating them to something closer to a physiological definition of death as partial, rather than whole, brain death. As the United States Conference of Catholic Bishops along with the National Catholic Bioethics Center wrote in a submission to the Uniform Law Commission:

The basis for our objection is that the proposed revision will allow patients who exhibit partial brain function to be declared “legally dead” when they are not biologically dead. Pope Saint John Paul II stated that “the complete and irreversible cessation of all brain activity, if rigorously applied, does not seem to conflict with the essential elements of a sound anthropology.” Nothing in Catholic teaching provides support for lowering the criterion to something less than “irreversible cessation of all functions of the entire brain.” We are opposed to lowering that standard in the absence of compelling scientific evidence.

That seems an entirely appropriate response.

Not all is misguided in the rUDDA, and it is important to acknowledge an important third modification being considered. In a few states, including New Jersey, an “accommodation” is provided in the determination of death for persons who, for religious reasons, require cessation of cardiac or respiratory functions for a determination of death. Adherents to traditional Abrahamic religions, such as Orthodox Jews and Christians, and others, including Buddhists and some Native Americans, are allowed to opt out of a determination that makes use of neurological criteria.

The rUDDA likewise provides an accommodation for individuals who wish in advance to object to a determination of death using neurological criteria. The objection must be included in an individual’s medical record, and medical institutions should make “reasonable efforts” to honor the objection.

Uniformity of accommodation in this manner would indeed be an improvement in the law. One might wonder, though, whether the accommodation goes far enough; in addition to the patient, the family might also rightly be given an accommodation to opt out, for reasons of religion or conscience, from determination of death by neurological criteria.

At this time, then, the most prudent and just way to move forward would involve maintaining the UDDA — particularly as regards its criterion of cessation of the whole brain’s functioning — and adding more-uniform accommodations for patients and families who object on religious or conscientious grounds to neurological criteria for the determination of death.

I mentioned earlier that some, such as Robert Sade, have argued for a relaxation of the dead-donor rule. Although this proposal is highly controversial, I believe it needs further consideration (though on somewhat different grounds from those that Sade has proposed). For consider: Actions that might hasten death at the end of life can be permissible if the hastening is not intended and there is proportionate reason for those actions. Thus, traditional medical ethics has held that morphine may be provided to a dying patient to relieve pain even when it might, as a side effect, hasten the patient’s death.

Is a similar argument plausible where organ procurement is concerned? For those whose death is truly imminent, the procurement of organs at two or five minutes after asystole (when the heart stops beating) might not actually hasten death; after all, the heart that is removed is not functioning. But even if it did, that would be a side effect of the operation, and any potential injustice would be avoided if there were full and free consent by a patient who had understood in advance what happens in donation after cardiac death.

Were this line of thinking sound, then the rUDDA’s changes to the cardiopulmonary criterion should also be resisted as divergent from biological reality: Genuine death requires irreversibility, as signifying a complete lack of integrated organic functioning. Instead of changes to the UDDA, a greater effort must be made to communicate to potential donors directly, and honestly, the circumstances of donation after circulatory death: A patient’s organs might, in some circumstances, be procured in the waning moments of life rather than in the first moments after death.