Controversies in the Determination of Death
The President's Council on Bioethics
Why do we describe the central question of this inquiry as a philosophical question? We do so, in part, because this question cannot be settled by appealing exclusively to clinical or pathophysiological facts. Those facts were our focus in the previous chapters in which we sought to clarify important features of “total brain failure,” a condition diagnosed in a well-defined subset of comatose, ventilator-dependent patients. As a condition, it is the terminus of a course of pathophysiological events, the effects of which account for certain clinically observable signs (all manifestations of an incapacitated brainstem) and for confirmatory results obtained through selected imaging tests. A patient diagnosed with this condition will never recover brain-dependent functions, including the capacity to breathe and the capacity to exhibit even minimal signs of conscious life. If the patient is sustained with life-supporting technologies, this condition need not lead immediately to somatic disintegration or failure of other organ systems. These facts are all crucial to answering the question, Is a human being with total brain failure dead? But determining the significance of these facts presents challenges for philosophical analysis and interpretation.
In this chapter, we set forth and explore two positions on this philosophical question. One position rejects the widely accepted consensus that the current neurological standard is an ethically valid one for determining death. The other position defends the consensus, taking the challenges posed in recent years as opportunities to strengthen the philosophical rationale for the neurological standard.
At the outset, it is important to note what is common to these two opposing positions. First, both reject the idea that death should be treated merely as a legal construct or as a matter of social agreement. Instead, both embrace the idea that a standard for determining death must be defensible on biological as well as philosophical grounds. That is to say, both positions respect the biological reality of death. At some point, after all, certainty that a body is no longer a living whole is attainable. The impressive technological advances of the last several decades have done nothing to alter the reality of death, even if they have complicated the task of judging whether and when death has occurred in particular circumstances. In light of such complications, however, both positions share the conclusion that a human being who is not known to be dead should be considered alive.
Second, neither position advocates loosening the standards for determining death on the basis of currently known clinical and pathophysiological facts. There is a well-developed third philosophical position that is often considered alongside the two that are the main focus of this chapter. This third position maintains that there can be two deaths—the death of the person, a being distinguished by the capacities for thought, reason, and feeling, and the death of the body or the organism. From the perspective of this third philosophical position, an individual who suffers a brain injury that leaves him incapacitated with regard to certain specifically human powers is rightly regarded as “dead as a person.” The still living body that remains after this death is not a human being in the full sense. Philosopher John Lizza discusses the living organism left behind after the “person” has died in the following way:
Advocates of a consciousness-related formulation of death do not consider such a being to be a living person. In their view, a person cannot persist through the loss of all brain function or even the loss of just those brain functions required for consciousness and other mental functions… [W]hat remains alive must be a different sort of being…a form of life created by medical technology… Whereas a person is normally transformed into a corpse at his or her death, technology has intervened in this natural process and has made it possible…for a person's remains to take the form of an artificially sustained, living organism devoid of the capacity for consciousness and any other mental function.1
Thus, advocates of this third position effectively maintain that in certain cases there can be two deaths rather than one. In such cases, they argue, a body that has ceased to be a person (having “died” the first death) can be treated as deceased—at least in certain ways. For example, according to some advocates of this position, it would be permissible to remove the organs of such individuals while their hearts continue to beat. The patients most often cited as potential heart-beating organ donors, based on this concept of death, are PVS patients and anencephalic newborns (babies born with very little, if any, brain matter other than the brainstem). Organ retrieval in such cases might entail the administration of sedatives to the allegedly “person-less” patient because some signs of continued “biological life” (such as the open eyes and spontaneous breathing of the PVS patient) would be distracting and disturbing to the surgeons who procure the patient's organs.
Serious difficulties afflict the claim that something that can be called “death” has occurred even as the body remains alive. One such difficulty is that there is no way to know that the “specifically human powers” are irreversibly gone from a body that has suffered any injury shy of total brain failure. In Chapter Three, we cited neurologist Steven Laureys's observation that it is impossible to ascertain scientifically the inward state of an individual—and features of this inward state (e.g., thinking and feeling) are always cited as marks of a distinctively human or personal life. It is very important here to recall the marked differences in appearance between the individual with total brain failure and the individual with another “consciousness-compromising” condition. The latter displays several ambiguous signs—moving, waking up, and groaning, among others—while the former remains still and closed off from the world in clinically ascertainable ways.2
A related problem with this “two deaths” position is that it expands the concept of death beyond the core meaning it has had throughout human history. Human beings are members of the larger family of living beings, and it is a fundamental truth about living beings that every individual—be it plant or animal—eventually dies. Recent advances in technology offer no warrant for jettisoning the age-old idea that it is not as persons that we die, but rather as members of the family of living beings and as animals in particular. The terminus of the transformation that occurs when a human being is deprived by injury of certain mental capacities, heartbreaking as it is, is not death. We should note, again, that some technological interventions administered to the living might be deemed futile —that is, ineffective at reversing or ameliorating the course of disease or injury—and that an ethically valid decision might be made to withdraw or withhold such interventions. There is no need, however, to call an individual already dead in order to justify refraining from such futile interventions.
In summary, the two positions that we present in this chapter share the conviction that death is a single phenomenon marking the end of the life of a biological organism. Death is the definitive end of life and is something more complete and final than the mere loss of “personhood.”
I. Position One: There Is No Sound Biological Justification for Today's Neurological Standard
The neurological standard for death based on total brain failure relies fundamentally on the idea that the phenomenon of death can be hidden. The metaphor employed by the President's Commission and cited in Chapter One expresses this idea: When a ventilator supports the body's vital functions, this technological intervention obscures our view of the phenomenon. What seem to be signs of continued life in an injured body are, in fact, misleading artifacts of the technological intervention and obstacles to ascertaining the truth. To consult brain-based functions, then, is to look through a “second window” in order to see the actual condition of the body.
The critical thrust of Position One can be summarized in this way: There is no reliable “second window” on the phenomenon of death. If its presence is not made known by the signs that have always accompanied it—by breathing lungs and a beating heart—then there is no way to state with confidence that death has occurred. Only when all would agree that the body is ready for burial can that body, with confidence, be described as dead. If blood is still circulating and nutrients and oxygen are still serving to power the work of diverse cells, tissues, and organ systems, then the body in which these processes are ongoing cannot be deemed a corpse.
Soon after the Harvard committee argued that patients who meet the criteria for “irreversible coma” are already dead, some philosophers and other observers of the committee's work advanced an opposing view. The counterarguments presented then by one such philosopher, Hans Jonas, are still useful in framing the objections raised today against the neurological standard. In his 1974 essay, “Against the Stream,” Jonas dissented from the Harvard committee's equation of “irreversible coma” and death and counseled, instead, a conservative course of action:
We do not know with certainty the borderline between life and death, and a definition cannot substitute for knowledge. Moreover, we have sufficient grounds for suspecting that the artificially supported condition of the comatose patient may still be one of life, however reduced—i.e., for doubting that, even with the brain function gone, he is completely dead. In this state of marginal ignorance and doubt the only course to take is to lean over backward toward the side of possible life.3
With these words, Jonas underscored a point that is pivotal to Position One: There can be uncertainty as to where the line between life and death falls even if we are certain that death is a biologically real event. In patients with total brain failure, the transition from living body to corpse is in some measure a mystery, one that may be beyond the powers of science and medicine to penetrate and determine with the finality that is possible when most human beings die.
Have advances in the scientific and clinical understanding of the spectrum of neurological injury shown that Jonas's stance of principled (and therefore cautious) uncertainty was incorrect? Today we have a more fine-grained set of categories of, as he put it, “artificially supported…comatose patients”—some of whom meet the criteria for total brain failure and others who have hope of recovering limited or full mental function. Only the first group is considered to be dead by today's “brain death” defenders. Even with respect to this group, however, there is still reason to wonder if our knowledge of their condition is adequate for labeling them as dead. If there are “sufficient grounds,” as Jonas put it, for suspecting that their condition may still be one of life, then a stance of principled and hence cautious uncertainty is still the morally right one to take.
This line of inquiry brings us to Shewmon's criticisms, summarized earlier in Chapter Three, of the accepted pathophysiological and clinical picture of patients with “brain death” (total brain failure). Do Shewmon's criticisms constitute the “sufficient grounds” to which Jonas appeals? To answer this question, these criticisms and the evidence supporting them must first be considered in greater depth.
In 1998, the journal Neurology published an article by Shewmon entitled, “Chronic ‘Brain Death': Meta-Analysis and Conceptual Consequences.” In that article, Shewmon cites evidence for the claim that neither bodily disintegration nor cessation of heartbeat necessarily and imminently ensues after brain death.4 Shewmon's evidence is drawn from more than one hundred documented cases that demonstrate survival past one week's time, with one case of survival for more than fourteen years.i Furthermore, he demonstrates that such factors as age, etiology, and underlying somatic integrity variably affect the survival probability of “brain dead” patients. Observing that asystole (the absence of cardiac contractions colloquially known as “flatline”) does not necessarily follow from “brain death,” Shewmon concludes that it is the overall integrity of the body (the “underlying somatic plasticity”) rather than the condition of the brain that exerts the strongest influence on survival. These facts seem to contradict the dominant view that the loss of brain function, in and of itself, leads the body to “fall apart” and eventually to cease circulating blood.
Critics of this meta-analysis have challenged the data on which Shewmon based his conclusions, claiming that many of the patients in the cases that he compiles might not have been properly diagnosed with whole brain death (in our usage, total brain failure). They also point out the rarity with which such cases are encountered, compared with the frequency of rapid descent to asystole for patients accurately diagnosed.ii To point out the rarity of prolonged survival, however, is to admit that the phenomenon does, in some cases, occur. Whether it might occur more often is difficult to judge because patients with total brain failure are rarely treated with aggressive, life-sustaining interventions for an extended time.
If it is possible—albeit rare—for a body without a functioning brain to “hold itself together” for an indefinite period of time, then how can the condition of total brain failure be equated with biological death? Or, to put the question in Jonas's terms, does this fact not give “sufficient grounds” for suspecting that such patients might still be alive, although severely injured? The case for uncertainty about the line between life and death is further strengthened by considering the somatic processes that clearly continue in the body of a patient with total brain failure.
In a paper published in the Journal of Medicine and Philosophy in 2001, Shewmon details the integrated functions that continue in a body in the condition of “brain death.” Table 2 reproduces a list of somatically integrative functions that are, in Shewmon's words, “ not mediated by the brain and possessed by at least some [brain dead] bodies.”5
Table 2: Physiological Evidence of “Somatic Integration”6
Homeostasis of a countless variety of mutually interacting chemicals, macromolecules and physiological parameters, through the functions especially of liver, kidneys, cardiovascular and endocrine systems, but also of other organs and tissues (e.g., intestines, bone and skin in calcium metabolism; cardiac atrial natriuretic factor affecting the renal secretion of renin, which regulates blood pressure by acting on vascular smooth muscle; etc.);
Elimination, detoxification and recycling of cellular wastes throughout the body;
Energy balance, involving interactions among liver, endocrine systems, muscle and fat;
Maintenance of body temperature (albeit at a lower than normal level and with the help of blankets);
Wound healing, capacity for which is diffuse throughout the body and which involves organism-level, teleological interaction among blood cells, capillary endothelium, soft tissues, bone marrow, vasoactive peptides, clotting and clot lysing factors (maintained by the liver, vascular endothelium and circulating leucocytes in a delicate balance of synthesis and degradation), etc.;
Fighting of infections and foreign bodies through interactions among the immune system, lymphatics, bone marrow, and microvasculature;
Development of a febrile response to infection;
Cardiovascular and hormonal stress responses to unanesthetized incision for organ retrieval;
Successful gestation of a fetus in a [brain dead] pregnant woman;
Sexual maturation of a [brain dead] child;
Proportional growth of a [brain dead] child.
Readers not well-versed in human physiology might find this list hard to follow. Its significance, however, can be simply stated: It enumerates many clearly identifiable and observable physiological mechanisms. These mechanisms account for the continued health of vital organs in the bodies of patients diagnosed with total brain failure and go a long way toward explaining the lengthy survival of such patients in rare cases. In such cases, globally coordinated work continues to be performed by multiple systems, all directed toward the sustained functioning of the body as a whole. If being alive as a biological organism requires being a whole that is more than the mere sum of its parts, then it would be difficult to deny that the body of a patient with total brain failure can still be alive, at least in some cases.
None of this contradicts the claim that total brain failure is a unique and profound kind of incapacitation —and one that may very well warrant or even morally require the withdrawal of life-sustaining interventions. According to some defenders of the concept of medical futility, there is no obligation to begin or to continue treatment when that treatment cannot achieve any good or when it inflicts disproportionate burdens on the patient who receives it or on his or her family. Writing many years before the somatic state and the prognostic possibilities of total brain failure were well-characterized, Jonas emphasized the need to accept that sustaining life and prolonging dying is not always in the patient's interest:
The question [of interventions to sustain the patient] cannot be answered by decreeing that death has already occurred and the body is therefore in the domain of things; rather it is by holding, e.g., that it is humanly not justified—let alone demanded—to artificially prolong the life of a brainless body…the physician can, indeed should, turn off the respirator and let the “definition of death” take care of itself by what then inevitably happens.7
To summarize, Position One does not insist that medicine or science can know that all or even some patients with total brain failure are still living. Rather, Position One makes two assertions in light of what we now know about the clinical presentation and the pathophysiology of total brain failure. The first is that there are “sufficient grounds” for doubt as to whether the patient with this condition has died. The second is that in the face of such persistent uncertainty, the only ethically valid course is to consider and treat such a patient as a still living human being. Finally, such respectful consideration and treatment does not preclude the ethical withdrawal or withholding of life-sustaining interventions, based on the judgment that such interventions are futile.
II. Position Two: There Is a Sound Biological Justification for Today's Neurological Standard
Position One is the voice of “principled and hence cautious uncertainty.” We should not claim to know facts about life and death that are beyond the limits of our powers to discern, especially when the consequence might be to place a human being beyond the essential and obligatory protections afforded to the living. The recent critical appraisals of total brain failure (“whole brain death”) offered by Shewmon and others only underscore the limits to our ability to discern the line between life and death.
Position Two is also motivated by strong moral convictions about what is at stake in the debate: The bodies of deceased patients should not be ventilated and maintained as if they were still living human beings. The respect owed to the newly dead demands that such interventions be withdrawn. Their families should be spared unnecessary anguish over purported “options” for treatment. Maintaining the body for a short time to facilitate organ transplantation is a reasonable act of deference to the need for organs and to the opportunity for generosity on the part of the donor as well as the family. Notwithstanding this need and opportunity, the true moral challenge that faces us is to decide in each case whether the patient is living or has died. To help us meet that challenge, the clinical and pathophysiological facts that call the neurological standard into question should be re-examined and re-evaluated. On the basis of such a re-examination and re-evaluation, Position Two seeks to develop a better rationale for continuing to use the neurological standard to determine whether a human being has died.
A. The Work of the Organism as a Whole
Early defenders of the neurological standard of “whole brain death” relied on the plausible intuition that in order to be a living organism any animal, whether human or non-human, must be a whole. Ongoing biological activity in various cells or tissues is not in itself sufficient to mark the presence of a living organism. After all, some biological activity in cells and tissues remains for a time even in a body that all would agree is a corpse. Such activity signifies that disparate parts of the once-living organism remain, but not the organism as a whole. Therefore, if we try to specify the moment at which the “wholeness” of the body is lost, that moment must come before biological activity in all of its different cells or tissues has ceased. As Alexander Capron, former executive director of the President's Commission, has repeatedly emphasized, the fact that this moment is chosen does not mean that it is arbitrary ; the choice is not arbitrary if it is made in accordance with the most reasonable interpretation of the biological facts that could be provided.iii
The neurological standard's early defenders were not wrong to seek such a principle of wholeness. They may have been mistaken, however, in focusing on the loss of somatic integration as the critical sign that the organism is no longer a whole. They interpreted—plausibly but perhaps incorrectly— “an organism as a whole” to mean “an organism whose parts are working together in an integrated way.” But, as we have seen, even in a patient with total brain failure, some of the body's parts continue to work together in an integrated way for some time—for example, to fight infection, heal wounds, and maintain temperature. If these kinds of integration were sufficient to identify the presence of a living “organism as a whole,” total brain failure could not serve as a criterion for organismic death, and the neurological standard enshrined in law would not be philosophically well-grounded.
There may be, however, a more compelling account of wholeness that would support the intuition that after total brain failure the body is no longer an organismic whole and hence no longer alive. That account, which we develop here with Position Two, offers a superior defense of “total brain failure” as the standard for declaring death. With that account, death remains a condition of the organism as a whole and does not, therefore, merely signal the irreversible loss of so-called higher mental functions. But reliance on the concept of “integration” is abandoned and with it the false assumption that the brain is the “integrator” of vital functions. Determining whether an organism remains a whole depends on recognizing the persistence or cessation of the fundamental vital work of a living organism—the work of self-preservation, achieved through the organism's need-driven commerce with the surrounding world. When there is good reason to believe that an injury has irreversibly destroyed an organism's ability to perform its fundamental vital work, then the conclusion that the organism as a whole has died is warranted. Advocates of Position Two argue that this is the case for patients with total brain failure. To understand this argument, we must explore at some length this idea of an organism's “fundamental work.”
All organisms have a needy mode of being. Unlike inanimate objects, which continue to exist through inertia and without effort, every organism persists only thanks to its own exertions. To preserve themselves, organisms must —and can and do —engage in commerce with the surrounding world. Their constant need for oxygenated air and nutrients is matched by their ability to satisfy that need, by engaging in certain activities, reaching out into the surrounding environment to secure the required sustenance. This is the definitive work of the organism as an organism. It is what an organism “does” and what distinguishes every organism from non-living things.iv And it is what distinguishes a living organism from the dead body that it becomes when it dies.
The work of the organism, expressed in its commerce with the surrounding world, depends on three fundamental capacities:
- Openness to the world, that is, receptivity to stimuli and signals from the surrounding environment.
- The ability to act upon the world to obtain selectively what it needs.
- The basic felt need that drives the organism to act as it must, to obtain what it needs and what its openness reveals to be available.
Appreciating these capacities as mutually supporting aspects of the organism's vital work will help us understand why an individual with total brain failure should be declared dead, even when ventilator-supported “breathing” masks the presence of death.
To preserve itself, an organism must be open to the world. Such openness is manifested in different ways and at many levels. In higher animals, including man, it is evident most obviously in consciousness or felt awareness, even in its very rudimentary forms. When a PVS patient tracks light with his or her eyes, recoils in response to pain, swallows liquid placed in the mouth, or goes to sleep and wakes up, such behaviors—although they may not indicate self -consciousness—testify to the organism's essential, vital openness to its surrounding world. An organism that behaves in such a way cannot be dead.
Self-preserving commerce with the world, however, involves more than just openness or receptivity. It also requires the ability to act on one's own behalf—to take in food and water and, even more basically, to breathe. Spontaneous breathing is an indispensable action of the higher animals that makes metabolism—and all other vital activity—possible. Experiencing a felt inner need to acquire oxygen (and to expel carbon dioxide) and perceiving the presence of oxygen in its environment, a living body is moved to act on the world (by contracting its diaphragm so that air will move into its lungs). An organism that breathes spontaneously cannot be dead.
Just as spontaneous breathing in itself reveals an organism's openness to and ability to act upon the world, it also reveals a third capacity critical to the organism's fundamental, self-preserving work: What animates the motor act of spontaneous breathing, in open commerce with the surrounding air, is the inner experience of need, manifesting itself as the drive to breathe. This need does not have to be consciously felt in order to be efficacious in driving respiration. It is clearly not consciously felt in a comatose patient who might be tested for a remaining rudimentary drive (e.g., with the “apnea” test). But even when the drive to breathe occurs in the absence of any self-awareness, its presence gives evidence of the organism's continued impulse to live. This drive is the organism's own impulse, exercised on its own behalf, and indispensable to its continued existence.v
As a vital sign, the spontaneous action of breathing can and must be distinguished from the technologically supported, passive condition of being ventilated (i.e., of having one's “breathing” replaced by a mechanical ventilator). The natural work of breathing, even apart from consciousness or self-awareness, is itself a sure sign that the organism as a whole is doing the work that constitutes—and preserves—it as a whole. In contrast, artificial, non-spontaneous breathing produced by a machine is not such a sign. It does not signify an activity of the organism as a whole. It is not driven by felt need, and the exchange of gases that it effects is neither an achievement of the organism nor a sign of its genuine vitality. For this reason, it makes sense to say that the operation of the ventilator can obscure our view of the arrival of human death—that is, the death of the human organism as a working whole. A ventilator causes the patient's chest to heave and the lungs to fill and thereby mimics the authentic work of the organism. In fact, it mimics the work so well that it enables some systems of the body to keep functioning—but it does no more than that. The simulated “breathing” that the ventilator makes possible is not, therefore, a vital sign: It is not a sign that the organism is accomplishing its vital work and thus remains a living whole.vi
We have examined the phenomenon of breathing in order to understand and explain a living organism's “needful openness” to the world—a needful openness lacking in patients with total brain failure. Having done this, however, we must also emphasize that an animal cannot be considered dead simply because it has lost the ability to breathe spontaneously. Even if the animal has lost that capacity, other vital capacities might still be present. For example, patients with spinal cord injuries may be permanently apneic or unable to breathe without ventilatory support and yet retain full or partial possession of their conscious faculties. Just as much as striving to breathe, signs of consciousness are incontrovertible evidence that a living organism, a patient, is alive.
If there are no signs of consciousness and if spontaneous breathing is absent and if the best clinical judgment is that these neurophysiological facts cannot be reversed, Position Two would lead us to conclude that a once-living patient has now died. Thus, on this account, total brain failure can continue to serve as a criterion for declaring death—not because it necessarily indicates complete loss of integrated somatic functioning, but because it is a sign that this organism can no longer engage in the essential work that defines living things.
B. Comparison with the UK Standard
Although the terms may be different, the concepts presented here to defend the use of total brain failure as a reasonable standard for death are not wholly new. A similar approach to judging the vital status of a patient diagnosed as “brain dead,” emphasizing the crucial importance of both spontaneous breathing and the capacity for consciousness, was advocated by the late British neurologist Christopher Pallis.8 His conceptual justification for this argument was influential in gaining acceptance for a neurological standard in the United Kingdom.vii
Like this report's Position Two, Pallis attempted to strike a balance between the need to be “functionalist” and the need to remain rooted in the biological facts of total brain failure. He stated in very direct terms that the relevant functions that were irreversibly absent from the patient with a destroyed brainstem were the ability to breathe and the capacity for consciousness. When challenged as to why these two functions should be singled out, Pallis pointed to what he called “the sociological context” for basic concepts of life and death. In the West, he maintained, this context is the Judeo-Christian tradition in which “breath” and “consciousness” are two definitive features of the human soul:
The single matrix in which my definition is embedded is a sociological one, namely Judeo-Christian culture… The “loss of the capacity for consciousness” is much the same as the “departure of the conscious soul from the body,” just as “the loss of the capacity to breathe” is much the same as the “loss of the breath of life.”9
Pallis also pointed to “the widespread identity, in various languages, of terms denoting soul and breath.”10 A challenge to this approach can be framed with two questions: First, are consciousness and breathing the only or the most important culturally significant features of the soul? And second, does this argument about traditional beliefs, bound to a particular culture, provide a sufficient rationale for a standard applicable to the transcultural, universal phenomenon of human death?
Position Two agrees with Pallis's emphasis on certain functions in preference to others, but it avoids the limitations of his approach, that is, its dependence on a particular culture. Position Two does this by taking the loss of the impulse to breathe and the total loss of engagement with the world as the cessation of the most essential functions of the organism as a whole. In this way, it builds upon an insight into biological reality, an insight latent in culture-bound notions of “breath of life” and “departure of the conscious soul from the body.” It does so by articulating a philosophical conception of the biological realities of organismic life. To repeat, an organism is the unique sort of being that it is because it can and must constantly act upon and be open to its environment. From this philosophical-biological perspective, it becomes clear that a human being with a destroyed brainstem has lost the functional capacities that define organismic life.
On at least one important point, however, our Position Two and the UK neurological standard part company. The UK standard follows Pallis in accepting “death of the brainstem,” rather than total brain failure, as a sufficient criterion for declaring a patient dead. Such a reduction, in addition to being conceptually suspect, is clinically dangerous because it suggests that the confirmatory tests that go beyond the bedside checks for apnea and brainstem reflexes are simply superfluous. As noted in Chapter Three, it is important to seek clarity on where a patient is on the path to the endpoint of total brain infarction. Only if the destructive cycle of infarction and swelling has reached this endpoint can the irreversibility of the patient's condition be known with confidence. Ultimately, the decision to perform these confirmatory tests (beyond those targeted at brainstem functions, for example, angiography or EEG) belongs to the attending clinician. The counsel offered here is one of caution in reaching a diagnosis with such important consequences. Only in the presence of a certain diagnosis of total brain failure do the arguments that seek to interpret this clinical finding hold weight.
1. J. P. Lizza, “The Conceptual Basis for Brain Death Revisited: Loss of Organic Integration or Loss of Consciousness?” Adv Exp Med Biol 550 (2004): 52.
2. S. Laureys, A. M. Owen, and N. D. Schiff, “Brain Function in Coma, Vegetative State, and Related Disorders,” Lancet Neurol 3, no. 9 (2004): 537-46.
3. H. Jonas, “Against the Stream,” in Philosophical Essays: From Ancient Creed to Technological Man (Englewood Cliffs, NJ: Prentice-Hall, 1974), 138.
4. D. A. Shewmon, “Chronic ‘Brain Death': Meta-Analysis and Conceptual Consequences,” Neurology 51, no. 6 (1998): 1538-45.
5. Shewmon, “Brain and Somatic Integration,” 467. Author's emphasis.
6. Shewmon, “The Brain and Somatic Integration: Insights into the Standard Biological Rationale for Equating ‘Brain Death' with Death,” 457-78.
7. Jonas, “Against the Stream,” 136.
8. C. Pallis and D. H. Harley. ABC of Brainstem Death. Second ed. London: BMJ Publishing Group, 1996; C. Pallis, “On the Brainstem Criterion of Death,” in The Definition of Death: Contemporary Controversies, ed. S. J. Youngner, R. M. Arnold, and R. Schapiro (Baltimore: The Johns Hopkins University Press, 1999), 93-100.
9. Pallis, “On the Brainstem Criterion of Death,” 96.
i. This patient experienced a cardiac arrest in January 2004, more than twenty years after the diagnosis of “brain death.” A report on the case, including the brain-only autopsy performed, appears in S. Repertinger, et al., “Long Survival Following Bacterial Meningitis-Associated Brain Destruction,” J Child Neurol 21, no. 7 (2006): 591-5.
ii. Wijdicks and Bernat, in a response to the Shewmon article, commented: “These cases are anecdotes yearning for a denominator.” E. F. Wijdicks and J. L. Bernat, “Chronic ‘Brain Death': Meta-Analysis and Conceptual Consequences,” Neurology 53, no. 6 (1999): 1538-45.
iii. Capron comments: “In part, any definition ‘is admittedly arbitrary in the sense of representing a choice,' as the President's Commission stated in defending the view that the brain's function is more central to human life than are other necessary organs… But the societally determined view of what constitutes death is not ‘arbitrary in the sense of lacking reasons.' …The ‘cultural context' of the standards for determining death includes the generally held view that human death, like the death of any animal, is a natural event. Even in establishing their ‘definition,' members of our society act on the basis that death is an event whose existence rests on certain criteria recognized rather than solely invented by human beings.” A. M. Capron, “ The Report of the President's Commission on the Uniform Determination of Death Act,” in Death: Beyond Whole Brain Criteria, ed. R. Zaner (The Netherlands: Kluwer Academic Publishers, 1988), 156-57. See, also, A. M. Capron, “The Purpose of Death: A Reply to Professor Dworkin,” Indiana Law J 48, no. 4 (1973): 640-6.
iv. The account here focuses on the details of organismic life that are manifested in the “higher animals” or, perhaps more precisely, the mammals. How these arguments might be modified and extended to other sorts of organisms (e.g., bacteria or plants) is beyond the scope of this discussion.
v. The significance of this account of breathing may be more apparent if we contrast it with the more reductive account provided by Shewmon in his influential 2001 paper that criticized a “somatic integration rationale” for a whole brain standard for human death. Shewmon wrote:
If “breathing” is interpreted in the “bellows” sense—moving air in and out of the lungs—then it is indeed a brain-mediated function, grossly substituted in [brain dead] patients by a mechanical ventilator. But this is a function not only of the brain but also of the phrenic nerves, diaphragm and intercostal muscles; moreover, it is not a somatically integrative function or even a vitally necessary one... It is merely a condition for somatic integration itself. On the other hand, if “breathing” is understood in the sense of “respiration,” which strictly speaking refers to the exchange of oxygen and carbon dioxide, then its locus is twofold: (1) across the alveolar lining of the lungs, and (2) at the biochemical level of the electron transport chain in the mitochondria of every cell in the body. ( Shewmon, “Brain and Somatic Integration,” 464. )
In his eagerness to debunk what he considers the myth of lost somatic integration, Shewmon fails to convey the essential character of breathing. We might summarize his account of breathing as follows:
Breathing = Inflation and deflation of a bellows + Diffusion at the alveoli + Cellular respiration
But Shewmon misses the critical element: the drive exhibited by the whole organism to bring in air, a drive that is fundamental to the constant, vital working of the whole organism. By ignoring the essentially appetitive nature of animal breathing, Shewmon's account misses the relevance of breathing as incontrovertible evidence that “the organism as a whole” continues to be open to and at work upon the world, achieving its own preservation. The breathing that keeps an organism alive is not merely the operation of a “bellows” for which a mechanical ventilator might substitute. Bringing air into the body is an integral part of an organism's mode of being as a needy thing. More air will be brought in if metabolic need demands it and the body feels that need, as for example during exercise or in a state of panic or injury. The “respiration” taking place at the cellular level can be understood adequately only in the context of the work of the whole organism—the work of breathing.
vi. If the view presented here is correct, that is, if the presence of spontaneous breathing truly reveals a persistent drive of the organism as a whole to live, we can better understand the force of a rhetorical question sometimes posed to those who view the loss of “higher” mental and psychological capacities as a sufficient criterion for declaring death. “Would you,” they may be asked, “bury a patient who continues to breathe spontaneously?” Quite naturally, we recoil from such a thought, and we do so for reasons that the account given above makes clear. The striving of an animal to live, a striving that we can discern even in its least voluntary form (i.e., breathing), indicates that we still have among us a living being—and not a candidate for burial.
vii. Other countries have adopted this conceptual framework as well. The Canadian Forum that issued its recommendations in 2006 followed the UK approach in adopting “irreversible loss of the capacity for consciousness combined with the irreversible loss of all brain stem functions, including the capacity to breathe” as the definition of neurologically determined death. Shemie, et al., “Neurological Determination of Death: Canadian Forum, ” S1-13.