Controversies in the Determination of Death
The President's Council on Bioethics
Although commonly used to identify the neurological standard for determining death, the term “brain death” is highly problematic. Three difficulties, in particular, are noteworthy.
First , the term “brain death” implies that there is more than one kind of death. This is a serious error, perpetuated by such statements as “the patient became brain dead at 3:00 a.m. on Thursday and died two days later.” Whatever difficulties there might be in knowing whether death has occurred, it must be kept in mind that there is only one real phenomenon of death. Death is the transition from being a living, mortal organism to being something that, though dead, retains a physical continuity with the once-living organism. Some will argue that such a transition does not occur instantaneously or that there are cases in which there is no way to know if the transition has, in fact, occurred. But, problems of “knowing” aside, there is only one real phenomenon that clinicians and families struggle to recognize.
Second , the term “brain death” implies that death is a state of the cells and tissues constituting the brain. In fact, what is directly at issue is the living or dead status of the human individual, not the individual's brain. In other contexts, it may be useful to talk about the death of parts of the body—the death of a cell, for example, or the “death” (irreversible failure) of an organ, such as a kidney or a liver. In current law and medical practice, the condition that warrants a determination of death using the neurological standard is not the “death of the brain” in this sense.
For this reason, evidence of continued activity of the pituitary gland, or of similar residual brain tissue function in patients diagnosed with “brain death,” is not decisive in determining whether these patients are living or dead.i The question is not, Has the whole brain died? The question is, Has the human being died ? This criticism can be leveled perhaps even more sharply at the commonly employed phrase “whole brain death,” which, if taken literally, implies that every part of the brain must be non-functional for the diagnosis to be made. In reality, and somewhat at odds with the exact wording of the UDDA, “ all functions of the entire brain” do not have to be extinguished in order to meet the neurological standard under the current application of the law to medical practice. In Chapter Four, we take up the question, “On what grounds might we judge the persistence of certain functions (e.g., ADH secretion by the pituitary gland) to be less important than other functions (e.g., spontaneous breathing)?”
Third , death itself is not a diagnosis; that is, the phenomenon of death and the selection of the appropriate standard for determining it are not strictly medical or technical matters. Thus, any term chosen as a label for a medical diagnosis should not contain the word “death.” It is not death that is diagnosed but rather a clinical state or condition made evident by certain ascertainable signs. Calling the condition of the patient who meets a set of diagnostic tests “brain death” begs the question of whether this condition does or does not warrant a determination that the patient has died. What is needed is a separate, non-prejudicial name for the condition that describes the state of the patient: a name that does not, by its use, commit one to any judgment about whether the death of the human being has occurred.
Other commentators over the years have noted similar difficulties with the term “brain death.” In response, various terms have been suggested to replace it as the name for the clinical diagnosis. The table below compiles some of these terms, along with references to their respective sources in the scholarly literature.
Table 1: Different Terms for One Clinical State
Each term has advantages and disadvantages. Although the choice of an appropriate term is important, it is more crucial to maintain a distinction between naming the medical diagnosis of a condition and declaring an individual dead on the basis of that medical diagnosis. In this report, we will employ the term “total brain failure” for the medical diagnosis. The precise meaning of “total” in this composite term is discussed in Chapter Three. Here, at the outset, we emphasize that total brain failure is, by definition, an irreversible condition. Thus, to be more explicit one could employ the term, “total and irreversible brain failure.” We will use the more familiar terms, “brain death” or “whole brain death,” when such use is warranted by the specific context, for example, in describing the history of the concept or in referencing works by others who themselves use these more familiar terms.
Because there is no perfect term, the choice of one is necessarily somewhat arbitrary. Nonetheless, an exploration of the strengths and weaknesses of the different terms can be useful in understanding the relevant clinical and pathophysiological facts. This will become clearer in Chapter Three, where we assume different perspectives on the clinical condition that is at the center of the debate.
1. D. H. Ingvar, “Brain Death—Total Brain Infarction,” Acta Anaesthesiol Scand Suppl 45 (1971): 129-40.
2.D. A. Shewmon, “Recovery from ‘Brain Death': A Neurologist's Apologia,” Linacre Q 64, no. 1 (1997): 30-96.
3.N. Zamperetti. et al., “Irreversible Apnoeic Coma 35 Years Later. Towards a More Rigorous Definition of Brain Death?” Intensive Care Med 30, no. 9 (2004): 1715-22.
4.S. D. Shemie, et al., “Severe Brain Injury to Neurological Determination of Death: Canadian Forum Recommendations,” CMAJ 174, no. 6 (2006): S1-13.
i. This evidence is discussed more completely in Part III of Chapter Three.