Bioethics Forum Essay

Revising the Uniform Determination of Death Act: Response to Miller and Nair-Collins

We thank Franklin Miller and Michael Nair-Collins for their recent post drawing attention to our article calling for revisions to the Uniform Determination of Death Act (UDDA). They agree with us that revisions are needed, but they fundamentally disagree with us about what revisions should be made. While we contend that the revisions should clarify declaration of death by neurologic criteria, or brain death, they argue that the neurological determination of death should be abandoned, thereby narrowing the legal declaration of death to cardiopulmonary criteria. 

Although the focus of our article in Annals of Internal Medicine (and a longer article in Journal of Law, Medicine and Ethics) was on the legal criteria for death, not the philosophical idea of death, Miller and Nair-Collins argue that on a conceptual level, only death by cardiopulmonary criteria constitutes “biological death,” which they define as “the irreversible cessation of integrative, homeostatic functioning of the organism as a whole.” While we are not experts in philosophy, the view espoused by Miller and Nair-Collins has been challenged, as the following publications indicate:

• In 2008, the President’s Council on Bioethics reviewed the relevant literature and spoke to many experts in a comprehensive and authoritative reexamination of the coherence of declaration of death in the setting of total brain failure. While acknowledging that the argument that total brain failure is consistent with death had been “persuasively called into question,” the President’s Council defended the declaration of death following total brain failure on the grounds that in this condition, a human can no longer carry out the “fundamental work of a living organism.”
• A 2014 article in Intensive Care Medicine written on behalf of worldwide experts involved in declaration of death defined human death as “the permanent loss of capacity for consciousness and all brainstem functions [as a] result [of] permanent cessation of circulation or catastrophic brain injury.”
• Lastly, in a recent article in The Journal of Medicine and Philosophy, Andrew Huang and James Bernat acknowledged conceptual weaknesses in the historic argument that lack of integrative functioning for the organism as a whole demonstrates that brain death constitutes human death. However, they reformulated the argument that brain death constitutes death based on loss of function of the “organism as a whole” by defining human death in terms of clinically relevant functions of the human neurologic center, including brain-controlled respiration, brain-regulated circulation, capacity for wakefulness, and capacity for self-awareness.

To address recent lawsuits that question whether the persistent of hormonal functions is consistent with death by neurologic criteria (such as the case of Jahi McMath), we proposed specific mention in a UDDA that loss of hormonal functions is not required for declaration of death by neurologic criteria. Miller and Nair-Collins dispute this assertion. emphasize that “it is an undisputable anatomical fact that they are part of the brain.” But this argument is inapposite, as neither the UDDA authors nor the 2008 President’s Council on Bioethics indicate that “irreversible cessation of all functions of the entire brain, including the brainstem” includes hormonal or cellular functions.

As we note in our JLME paper, “in their 188-page report, the UDDA authors mentioned ‘coma’ 120 times, ‘brainstem’ 22 times, and ‘apnea’ nine times. But not once did they mention any terms to describe pituitary/hypothalamic/hormonal function.” 

Additionally, the 2008 President’s Council on Bioethics made no mention of hormonal function when they described four conditions necessary to declare total brain failure:

1) The patient has a documented history of injury that does not suggest a potentially transient cause of symptoms, such as hypothermia or drug intoxication.

2) The patient is verified to be in a completely unresponsive coma.

3) The patient demonstrates no brainstem reflexes.

4) The patient shows no drive to breathe during the apnea test.

Accordingly, we believe pituitary/hypothalamic/hormonal function was not relevant to the UDDA authors. First, they may not have specifically considered whether loss of hormonal function would be required to declare death by neurologic criteria. Second, even if they had considered it, they would not have thought it weakened the integrity of the basic concept of death by neurologic criteria. Rather, the UDDA authors would have expected clinicians to resolve such ambiguities when setting the medical standards to assess for death by neurologic criteria.  

There are two currently accepted sets of medical standards in the United States for the determination of brain death: the 2010 American Academy of Neurology standards, which are applicable to adults, and the 2011 Society of Critical Care Medicine, American Academy of Pediatrics, and Child Neurology Society standards for determination of brain death in infants and . Both require identification of a source of injury to the brain and demonstration of irreversible coma, loss of brainstem reflexes, and inability to breathe spontaneously. Neither requires loss of hormonal function.     

This unanticipated ambiguity has come up in recent lawsuits. Families in California and Nevada have contended that patients are not dead even when they meet accepted medical standards for brain death. They argued (with some success in the courts) that persistence of hormonal function means there is no “cessation of all functions of the entire brain.” Therefore, we believe it is imperative that the UDDA clarify whether loss of hormonal function is required for declaration of death by neurologic criteria. Indeed, Nair-Collins similarly argued in a 2014 Journal of Intensive Care Medicine article that clarification of the UDDA regarding the issue of hormonal function is needed. Furthermore, we believe that the UDDA should specify the medical standards for determination of death by neurologic criteria.

We, once again, thank Miller and Nair-Collins for contributing to the discussion on this topic and reiterating the need for modifications to the UDDA. 

Ariane Lewis, MD, is an Associate Professor at NYU Langone Medical Center in the departments of neurology and neurosurgery in the division of neurocritical care) and an affiliate of the department of population health in the division of bioethics. Richard J. Bonnie, LLB, is Harrison Foundation Professor of Law and Medicine in the school of law, professor of psychiatry and neurobehavioral sciences and professor of public health sciences in the school of medicine, professor of public policy in the Frank Batten School of Leadership and Public Policy, and director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia. Thaddeus M. Pope, JD, PhD, is director of the Health Law Institute and a professor at Mitchell Hamline School of Law in Saint Paul, Minn., an adjunct professor with the Australian Centre for Health Law Research at Queensland University of Technology in Australia, and a visiting professor of medical jurisprudence at St. George’s University in Grenada. Twitter: @ThaddeusPope.