Bioethics Forum Essay
An Incoherent Proposal to Revise the Uniform Determination of Death Act
It has been 50 years since the medical profession adopted the determination of death according to neurological criteria, known as “brain death.” This doctrine was codified in 1981 in the Uniform Determination of Death Act (UDDA), which declares, “An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.”
In a recent article in Annals of Internal Medicine, Ariane Lewis, Richard Bonnie, and Thaddeus Pope identify four problems with the UDDA and its implementation, and propose a revised formulation. One of their reasons for revising the UDDA is the long-known fact that hormonal functions originating in the hypothalamus in the brain can continue in a patient who satisfies the diagnostic standards for brain death. Thus, a revision to the UDDA should indicate “whether hormonal functions are included in ‘all functions of the entire brain, including the brain stem’.” Describing recent lawsuits challenging the determination of death by neurological criteria, the authors note, “This raised the question of whether the pituitary gland and the hypothalamus are part of the ‘entire brain’. If they are, the accepted medical standards for DNC [death by neurological criteria] (which do not test for cessation of hormonal functions) are not consistent with the statutory requirements for declaration of death.” However, even raising the query as to whether the hypothalamus and posterior pituitary are part of the “entire brain” is absurd: it is an undisputable anatomical fact that they are part of the brain. Any proposed revision to legal statutes that ignores or obfuscates this undeniable fact is unacceptable.
Further, the authors’ revised formulation of the UDDA does not make it transparent whether or not the preservation of neurohormonal functioning is consistent with the neurological determination of death. Their revised formulation states that individuals are dead according to neurological criteria if they have sustained “irreversible cessation of functions of the entire brain, including the brainstem, leading to unresponsive coma with loss of capacity for consciousness, brainstem areflexia and the inability to breathe spontaneously.” The italicized phrase that is appended to the reaffirmed language of the UDDA “delineates the specific functions of the brain that must be lost.” It seems intended to provide greater clarity to the UDDA. It does not: the triad of unresponsiveness, brainstem areflexia, (absence of brain stem reflexes) and apnea do not adequately identify the condition of irreversible cessation of functions of the entire brain, particularly the functions of the hypothalamus. The authors do, however, suggest an alternative formulation: simply add to the UDDA’s neurological determination of death—“the irreversible cessation of all functions of the entire brain”—the phrase, “. . . with the exception of hormonal function.” No justification is offered for this ad hoc and physiologically baseless move. In any case, one expects a revision of the UDDA to promote clarity, not confusion.
Moreover, the authors’ proposed revision of the UDDA ignores the elephant in the room. The established doctrine of medical determination of death according to neurological criteria is predicated on the assumption that brain death constitutes biological death—the irreversible cessation of integrative, homeostatic functioning of the organism as a whole. However, over the past 30 years it has become well-known, but generally ignored or not appreciated by the medical and legal professions, that individuals who meet the standard tests for brain death remain biologically living as manifested by a wide variety of functions, including respiration, circulation, digestion and excretion of wastes, temperature control, wound-healing, stress response to incisions, and, in the case of pregnant women, even the gestation of a healthy fetus for several months. The fact that these functions require the support of mechanical ventilation and other medical interventions no more makes these individuals dead than other patients without profound brain damage who need life-sustaining treatment to survive.
Medicine declares itself to be a science, or at least to be guided by science. Therefore, its concept of death must be a scientific, biological concept that is justified by empirical evidence and the usual standards of scientific evaluation, such as coherence with other well-accepted scientific claims, unification under a common ontological framework, simplicity, and so on. Accordingly, the medical determination of death should not attempt to identify conditions for human death other than biological death, such as loss of personhood.
We contend that the way to revise the UDDA is to drop entirely the neurological determination of death, relying instead on a much simpler formulation limited to the first part of the UDDA: “An individual who has sustained irreversible cessation of circulatory and respiratory functions is dead.” The policy implications of abandoning the neurological determination of death, which we and others have addressed elsewhere, are complex, but they need to be faced for determination of death to be based on a coherent biological foundation.
Franklin G. Miller, PhD, is a professor medical ethics in medicine at Weill Cornell Medical College and a Hastings Center Fellow. Michael Nair-Collins, PhD, is an associate professor of behavioral sciences and social medicine at Florida State University College of Medicine.