Controversies in the Determination of Death
The President's Council on Bioethics
The purpose of this statement is to present my personal views on three different issues that arise within the debate addressed in the present report.
Since the publication of the reports by the Harvard Ad Hoc Committee (1968) and by the President's Commission (1981), it has become commonplace to claim that “the definition of death” has been revised, and that, accordingly, the definition “has changed” or “has evolved.” It is thus suggested that the medical profession now has an understanding of death that is different from the one it had a few decades ago. Moreover, the “new definition,” the one that “defines” death as “whole brain death,” is the one that has been enshrined in the law.
In my view, this use of the philosophical term “definition” is inaccurate and all too often seriously misleading.
To define a term is to provide, in other words, an account of its meaning. Thus, if we define “triangle” as “a plane figure with three straight sides” and the definition is changed to “a plane figure with four straight sides,” then the term “triangle” will no longer single out triangles, but squares. In fact, a change in definition usually entails a change in reference. Hence, if the definition of “death” changes, we will not be referring to the same natural phenomenon we had been trying to identify before the semantic change took place.
If the contemporary dispute about death is to be intelligible, the definition of “death” must remain stable.
A long tradition in philosophy with many contemporary defenders points out that there are two kinds of definitions: ordinary language definitions and specialized language definitions. Most people understand “water” to mean, roughly, “a transparent liquid that flows from the kitchen or bathroom faucet, and is safe to drink.” However, people with some knowledge of chemistry define it as “a liquid whose basic molecule is composed of two atoms of hydrogen and one of oxygen.”
Likewise, it is reasonable to expect that there will be two kinds of definition for the term “death.” First, “death” as ordinarily understood means “the irreversible cessation of life” and applies to all things that have been alive. There is no separate definition that applies, say, only to humans, to the exclusion of animals or plants. Nor can life irreversibly cease more than once. Hence, there is only one death for each organism. Death, furthermore, is a natural, biological event with social consequences, not a moral, legal, or political decision on the part of those observing it. Death itself should not be confused with the ruling that death has occurred.
The definition of “death” as “the irreversible cessation of life” is a definition by exclusion. It is a derivative account that is parasitic on the more primitive notion of life. A second, specialized language definition of “death” would thus have to specify, in the language of biology, the essential properties of life. Although progress has been made in the understanding of DNA and other driving factors of life, we are far from being able to give an essential definition of “life” analogous to the H 2 O definition of “water.” We must resort instead to the observable signs of life. These allow us to state whether an organism is alive or dead. If a body is able to process nutrition, eliminate waste, and exhibit proportional growth, homeostasis, etc., and, moreover, it engages in these functions in an integrated manner, we shall correctly deem it to be alive. If it fails to do this, and starts to decompose and disintegrate, we will rightly judge it to be dead.
In judging as we have just described, we have adopted observable criteria for life. “Criteria” is the plural of “criterion,” a word whose Greek roots suggest the idea of separation or distinction. A good example of a criterion is a sieve that separates liquids from solids. A criterion is thus chosen, and is sometimes even man-made. We decide what we will use as a criterion, that is, as an instrument for setting apart the living from the dead. An alternative, synonymous expression commonly used to refer to criteria is the word “standards.”
Thus, the appeal to the traditional cardiorespiratory criterion or standard is a choice to determine death by verifying the irreversible cessation of heartbeat and breathing. To choose to determine death by total brain failure does not change the definition of death. It is a decision to use a different standard to determine death.
A standard is chosen, but the choice can be wrong. It depends on what the function of the standard is expected to be. If the goal is to separate liquids from sand, a sieve with large holes will be the wrong choice. Likewise, if a criterion to determine death is chosen that leads us to declare dead certain individuals who continue to display the observable signs of life, then that standard will have been wrongly chosen.
The “higher brain death” criterion or standard for death seems to be a wrong choice for several reasons: it turns on an unpersuasive distinction between the death of plants or animals, and the death of a person. Moreover, it requires us to assume that we undergo two deaths: the death of the mind and the death of the body (although for most people they would be simultaneous events). Furthermore, it leaves behind not a cadaver, but an ostensibly living body.
The choice of a specific criterion or standard is insufficient, by itself, to determine whether someone is dead or alive. A trained, experienced eye must observe whether the conditions specified in the formulation of the standard are or are not objectively present in a patient. To satisfy this diagnostic need, tests are designed to operate under each of the different criteria. To place a stethoscope on the chest of a patient in order to verify whether his or her heart has stopped beating is to conduct a test under the cardiorespiratory standard. To perform an EEG is to conduct one of the tests to establish total brain failure.
Tests can be inaccurate and lead to unclear results, that is, to the conclusion that we are uncertain whether someone is dead or alive.1 The inaccuracy of tests can also lead to false results, such as declaring dead someone who later recovers. The epistemic question of whether we can be certain that someone is dead or alive leads to further refinement of our tests, and may play a crucial role in reaching a moral judgment, but it should not be confused with the physiological question—whether the brain is the organ responsible for the integrated functioning of the organism, so that total brain failure is the same as the irreversible cessation of the life of a given organism.
During the discussion of the present report, evidence was offered that seems to show that survival after total brain failure is not only possible, but has been documented in approximately 175 cases. This would entail “that the body's integrative unity derives from mutual interaction among its parts, not from a top-down imposition of one ‘critical organ' upon an otherwise mere bag of organs and tissues.”2
In order to disprove this last finding, one (or both) of the following two conditions would have to be met:
First, that the “brain dead” individuals who continue to live are not really “brain dead.” That is, they would all have to be cases of misdiagnosis of total and irreversible brain failure. Given the evidence adduced (especially the results of a brain autopsy of a patient who survived twenty years after the diagnosis of total brain failure due to bacterial meningitis), 3 it seems to me that there are credible reasons to think that the patients were indeed “brain dead.”
And second, that the functions exhibited by the patients are not indicative of the integrated functioning of an organism. In other words, one would have to argue that all observed biological processes were only lingering activations of some subsystems of the body: the body as a whole would not be alive because of its lack of holistic properties. This last claim is contradicted by the fact that, for example, proportional growth and, more generally, homeostasis, and perhaps other observable phenomena, cannot be explained as the isolated functioning of a part of the organism. I think it is reasonable to think that these are holistic properties that involve the organism as a whole.
On the basis of the aforementioned findings, I am inclined to hold that the choice of whole brain failure as a standard for death is a questionable choice, whether it is based on the physiological claim that the brain is the integrative organ for the whole organism or on the general biological claim that the spontaneous drive to breathe, which is dependent on the brain, is necessary for life. The existence of conscious, yet apneic, patients allows us to dispose of the latter claim. Since some apneic individuals are alive, it follows that it appears to be false that all individuals who lack the drive to breathe spontaneously are dead.
With regard to the role of the brain, there is a further physiological consideration to be taken into account. During the early embryonic stages of an organism, there is certainly integrated functioning of subsystems, and this happens before the brain is formed. This suggests that the brain is not the organ that is responsible for the integrated functioning of the organism of which it is a part, but rather that it is itself a product of a prior dynamism of the integrated whole.
From the information presented to me, I am provisionally inclined to side with what in the report is called Position One. I am aware of its minority status, and that it could be overthrown if new evidence shows that either alleged “whole brain dead” patients have been misdiagnosed or that the apparent survival of those patients is only a lingering preservation of uncoordinated physiological subsystems.
In my view, the ethical cornerstone of vital organ transplantation is the dead donor rule: no one should be intentionally killed so that his or her organs may benefit someone else. To violate this rule is to go against the goals of medicine and to violate a basic norm of human interaction.
If a certain standard or criterion, no matter how widely accepted, entails the risk of violating the dead donor rule, then it should be revised in light of the empirical evidence. If it turns out that the current neurological standard allows, in certain cases, the extraction of organs from individuals who are still alive, then the morally right thing to do would be to abandon it and adopt a safer criterion.
1. K. G. Karakatsanis. “‘Brain Death': Should It Be Reconsidered?” Spinal Cord 46, no. 6 (2008): 396-401.
2. D. A. Shewmon. “Chronic ‘Brain Death': Meta-Analysis and Conceptual Consequences.” Neurology 51, no. 6 (1998): 1538-45.
3. S. Repertinger, W. P. Fitzgibbons, M. F. Omojola, and R. A. Brumback. “Long Survival Following Bacterial Meningitis-Associated Brain Destruction.” J Child Neurol 21, no. 7 (2006): 591-5.