Controversies in the Determination of Death
The President's Council on Bioethics
I write to underscore a few matters that are, I think, important aspects of this white paper's discussion of controversies in the determination of death.
(1) The Council rejects the view that the criteria for determining death should be shaped or determined by our need and desire for transplantable organs. We should not create “legal fictions” or “social agreements” whose aim is less an accurate determination of death than a ready supply of organs. Whatever else human beings may be, they are living bodies, and their death is a biological reality that we need to mark as accurately as we are able.
(2) This does not mean, however, that the determination of death is a straightforwardly empirical matter. In order to know when a biological organism—and, in particular, a complicated one such as a human being—has died, we need as much philosophical clarity as we can manage about what makes a human being a living whole. Hence, this document does more than just consider medical and biological facts; it also develops a theory of what makes an organism a living organism.
(3) This theory is, I believe, the most significant contribution of the white paper. For decades now the determination of death in many cases—and especially in cases where organs have then been taken for transplant—has been made on the basis of a neurological standard (commonly referred to as “brain death,” but in this document called “total brain failure”). The rationale offered in support of that standard has been that a body which has suffered irreversible loss of all brain activity (which has lost, so to speak, its “executive” power) can no longer function as an integrated whole and hence is no longer a living whole. This rationale was never entirely persuasive and has become even less so over time. The Council offers here (in Position Two of Chapter Four) what is, in my view, a more adequate rationale for continued use of a neurological standard in the determination of death: a philosophical rationale that seeks to characterize the fundamental work of self-preservation which any living organism must carry out if it is to remain alive.
(4) Chapter Four develops this rationale with admirable succinctness and clarity, and there is no need for me to repeat it. I do, however, want to emphasize that the capacities which characterize the work by which an organism sustains itself (openness to the surrounding environment, ability to act upon that environment, and inner experience of need) may be present even when a human being is no longer conscious of self or of the surrounding world. Consciousness is a prominent mode of a living human being's openness to the world, but not the only mode. Its presence is sufficient to assure us that a human being still lives. But even its permanent absence is not sufficient evidence of death, for a human being may have permanently lost (so far as we can tell) all capacity for consciousness while continuing to be a living organism in the terms Position Two sets forth. A permanently unconscious human being who breathes spontaneously manifests openness to the surrounding environment in its need for oxygen, acts upon that environment by breathing to take in the oxygen it needs, and manifests an inner drive to breathe. Such a person is surely severely disabled, but is not dead.
(5) A drive to breathe, moved by one's own inner impulse, is—as Position Two notes—not the same as “being ventilated.” A coordinated exchange of oxygen and carbon dioxide still takes place in a body whose work of breathing has been replaced by mechanical ventilation, but this exchange “is not the achievement of the organism or a sign of its vitality.” Nevertheless, the bodies of human beings who have suffered total brain failure (and, hence, are dead according to the rationale provided by Position Two) may, if ventilated, still exhibit some characteristics that suggest continued life. This fact has led some to reject not only the rationale currently used to justify a neurological standard for death (i.e., loss of bodily integration), but also the notion that death can be determined on the basis of neurological injury, apart from the familiar signs of stopped heartbeat and circulation. These critics hold that death must be determined as it was before mechanical ventilators and the concept of “brain death” came upon the scene—namely by observing irreversible loss of heart and lung activity (and this view is developed in Position One of Chapter Four). Were this critique accepted, it would, of course, create complications for organ transplantation, since there would no longer be “brain dead” but still ventilated “cadavers” from whom organs could be taken. These complications alone, however, cannot be reason to reject such a view.
(6) Although I take this critique seriously, it has not persuaded me that we must abandon a (suitably articulated) neurological standard for determining death. The critics who adopt Position One are still overly tied to the language of somatic integration. That is not unimportant, of course, but it does not get to the heart of what makes an organism living. So, for example, there is a difference between the drive of hunger, which turns an organism toward its environment in search of the means of its self-preservation, and the transfer of nutrients in a body—and a difference between the drive to breathe and the exchange of gases in a body. In each case the former is the mark of a living being, the latter something more like a mechanical process that does not indicate the being's own attempt to engage its world. Hence, my own view is that we have good reason to adopt the rationale developed in Position Two, a rationale that justifies us in using a neurological standard to determine death. I say this not because I think organ transplantation unproblematic; I do not. I say it only because it seems to me an accurate account of what we mean when we distinguish between the living and the dead.