Artificially Coloured MRI Scan Of Human Brain

Bioethics Forum Essay

Individuals Declared Brain-Dead Remain Biologically Alive

A remarkable experiment was reported last week in which a kidney from a genetically modified pig was attached to blood vessels in a brain-dead individual, with the family’s consent. In the study, hailed as “a huge breakthrough,” the pig’s kidney functioned normally, suggesting the future feasibility of successfully transplanting organs from pigs into human beings. This research raises a host of ethical issues, including the ethics of xenotransplantation. Here I focus on the implications for the status of individuals declared brain-dead, or dead by neurological criteria, who are unable to breathe spontaneously  and are being maintained in hospitals with the aid of mechanical ventilation.

It is interesting that an article in The New York Times initially described the  subject in the experiment as being “kept alive on a ventilator” –a common description of a person declared brain-dead. In a version published two days later, “kept alive” was changed to “sustained.”  Presumably, this wording change was meant to be consistent with the stance that the brain- dead are truly dead.  However, there is no way that the experiment could have been a success had the human body attached to the pig’s kidney been a genuinely dead body.  Connecting the pig’s kidney to a cold human corpse, following determination of death based on irreversible cessation circulatory and respiratory functioning, would never have permitted normal functioning of the kidney.  In other words, the biological life continuing in the brain-dead research subject made it possible for the experiment to be a success.

For the past 50 years, the field of bioethics has continued to endorse the consensus view that people declared dead by neurological criteria are dead based on a biological conception of death.  This view was developed and defended in the 1981 report of the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, “Defining Death,” and it was affirmed in 2008, with a somewhat different rationale, by the President’s Council on Bioethics in a report,  “Controversies in the Determination of Death.”  The consensus  has prevailed in bioethics and in the medical and legal professions despite challenge by some bioethics scholars who have appealed to evidence that those declared brain-dead continue to maintain a variety of homeostatic functions of the organism as a whole, supported by mechanical ventilation and other medical interventions.

Recently, along with Michael Nair-Collins and Robert Truog, I argued that it is time to abandon the stance that brain-death constitutes biological death in the context of a detailed analysis of a case of a  woman pronounced dead by neurological criteria who gestated a fetus and gave birth to a healthy child while being sustained with intensive care in a German hospital for over seven months.  The body of this unfortunate woman gave birth to a healthy child. Her heart, both kidneys, and her pancreas were donated for transplantation, in accordance with her prior expressed preferences.  The pig kidney experiment offers further evidence that those who are considered brain-dead remain alive.

The consensus regarding the status of brain-dead individuals cannot withstand critical scrutiny.  As Daniel Patrick Moynihan famously declared, “Everyone is entitled to his own opinions, but not to his own facts.”  The fact that individuals declared brain-dead remain biologically alive leaves open how to think ethically about the status of these living human beings with profound, irreversible brain damage—alive but having irreversibly lost consciousness.  How is it possible for “the dead donor rule”—which requires that vital organs can be procured only from individuals validly determined to be dead—to be followed while obtaining organs from brain-dead donors?  Do physicians have the unilateral authority to stop life-sustaining treatment for individuals determined to be brain-dead over the objection of family members who insist on maintaining treatment? 

 Many issues in bioethics continue to be perplexing and controversial; however, bioethics analysis and judgment should always be based on solid evidence of matters of biological fact.

Franklin G. Miller, Ph.D, is a professor of medical ethics in medicine at Weill Cornell Medical College and a Hastings Center fellow.

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  1. The article begs the question by asserting that the “individual” remains biologically alive , by which author the author implies that the “person” (i.e., a being that is the subject of rights and responsibilities) remains biologically alive. Those who have supported brain death as the criterion for death have made clear that what has died (= ceased to exist) is the person. They have never suggested that the body of that (former) person has ceased to function biologically, I.e. the body remains alive. Bodies, including human bodies, are the subjects of rights and responsibilities, which is not to say that for a variety of cultural reasons we should not treat them respectfully. In the case at hand, that respect to the form of taking into account the dead persons of caressed wishes in the disposition of their body when they had died and consultation with the dead person’s relatives.

    1. It is not simply that persons remain ‘biologically alive’ but, as Joe Finns says in Rights Come to Mind that many thought to be ‘brain dead’ may be minimally conscious and have the potential for increased consciousness. The history of the brain death criterion is complex but begins with the Belmont Report and its desire for a standard that would advantage whole organ donation. The history is told elsewhere and in my THieves of Virtue: When Bioethics Stole Medicine.

  2. “Do physicians have the unilateral authority to stop life-sustaining treatment for individuals determined to be brain-dead over the objection of family members who insist on maintaining treatment? ” Do they have authority to stop life sustaining treatment when it is not longer possible for treatment to serve any purpose other than merely sustaining life? Maybe not unilaterally or by fiat, but ultimately, once the relevant process has been undertaken, clearly they do. Or, perhaps, clearly they should. A brain death determination, indeed the pronouncement of death per se, is simply announcing the fact that the patient can no longer benefit from treatment. That other benefits may still be derived (the transplant and pregnancy cases mentioned) do not undo this point. There can no longer be any direct benefit to the patient, even if some broader goal can still be achieved and even if doing so is consistent with the deceased patient’s previously expressed wishes.

  3. Assuming the neurological judgments are correct, a brain-dead individual is irrevocably gone, past thought, past pain, past joye and despair. The “person” no longer exists. The organism–the community of cells– that once sustained personhood remains conditionally functional, but without agency or the possibility of continued existence without external help. For loved ones there can be a cruel illusion that the “person” might somehow be resurrected and returned to the organism being sustained artificially. Ethically, this illusion cannot be indulged. There is no “life” to save. The resources to keep a body of cells that once were part of a living person functioning are needed for the living.

  4. The above comments seem to be defining death either as loss of personhood – a ‘higher brain’ definition of death – or a state of ‘extreme futility’ in relation to medical treatment. We can debate the merit of those positions, but they play no part in the current diagnostic criteria for brain death, and they potentially allow other states, such as profound coma or persistent vegetative states, to also be regarded as forms of death.
    In our recently published survey of 1000 Australians, many respondents were ambivalent about death as a strict precondition for organ donation, but were mainly concerned with prognosis, anticipated quality of life and the known wishes of the prospective donor. It may be that the ‘dead donor rule’ is less sacred to the general population than it is to some philosophers and physicians. The work of Nair-Collins and others suggests these findings are not limited to Australians.

  5. Brain Death concept usually involves death of the brain stem which sustains breating efforts neccesary to sustain oxigenation needed to sustain biological life. Whenever that is not possible – to sustain breathing – that human being, to continue his biolological life certainly needs ventilatory support, which, by the way, no question, continues to bring diverse discussions. On the other hand, even if this biological alive body continues to be “alive”, for must of human persons, those allowed to think, and act, and decide, because of intact superior brain functions, the status of just having biological life is not enough, so, sometimes doctors certainly can not consider to wait until that, false hope, becomes true, increasing despair, disguise and mistrust in the affected family. Dan Callahan addressed the issue many years ago. Finally, those conditions that go along with biological life, but, barely brain life, meaning vegetative or nearly minimally conscious states, probably, as Karen Ann Quinlan, Terri Schiavo and many others decided, are not, by any means good ways to continue having biological life, because our biological life without a willing, personal biographical life is senseless.
    The English Physicist, Hawking, could not sustain his biological life without a ventilator, but certainly did contribute to his world because his brain biology was intact. Christopher Reeve gave us another example of meaning of life.

  6. The rediscovery of the proper use of the Greek words Zoe and Bios, proposed by Giorgio Agamben, allowed for a better clarification of this issue of the use of the encephalic criterion for the characterization of death. Life, like Zoe, is the set of biological characteristics of the human being, it is what gives him the attribute of being alive. When we think about Bios, the person’s relational aspects are evident. It is these biographical characteristics that place this person in the world. It is life giving support to living, and living giving meaning to life.
    The use of cardiothoracic criteria to characterize the death of a human being demonstrates the inability to support their biography to continue, it is the recognition that that person will no longer be able to preserve themselves as such.
    On the other hand, the use of the encephalic criterion to characterize the death of a person is the understanding that they themselves will no longer be able to expand their biography. For some time, biological conditions may still last, but without any interaction. When biological conditions cannot be maintained and extraordinary life support measures are needed, the only justification for this is to guarantee the living of this person, it is to ensure that even without biological conditions, the relational aspects are still able to manifest themselves to give a sense to these extraordinary measures.
    The proven absence of any possibility of this person still being inserted in the world, of having relationships, may justify the withdrawal of biological support measures, due to the loss of justification for adequacy.
    This is what happens in contemporary hospital practice. There is no withdrawal of biological conditions, but rather a re-discussion on the adequacy of justifications for maintaining extraordinary life support measures.
    The use of the encephalic criterion to characterize a person’s death cannot be seen only in its utilitarian aspects, but preferentially in its existential aspects.
    The rediscovery of the proper use of the Greek words Zoe and Bios, proposed by Giorgio Agamben, allowed for a better clarification of this issue of the use of the encephalic criterion for the characterization of death. Life, like Zoe, is the set of biological characteristics of the human being, it is what gives him the attribute of being alive. When we think about Bios, the person’s relational aspects are evident. It is these biographical characteristics that place this person in the world. It is life giving support to living, and living giving meaning to life.
    The use of cardiothoracic criteria to characterize the death of a human being demonstrates the inability to support their biography to continue, it is the recognition that that person will no longer be able to preserve themselves as such.
    On the other hand, the use of the encephalic criterion to characterize the death of a person is the understanding that they themselves will no longer be able to expand their biography. For some time, biological conditions may still last, but without any interaction. When biological conditions cannot be maintained and extraordinary life support measures are needed, the only justification for this is to guarantee the living of this person, it is to ensure that even without biological conditions, the relational aspects are still able to manifest themselves to give a sense to these extraordinary measures.
    The proven absence of any possibility of this person still being inserted in the world, of having relationships, may justify the withdrawal of biological support measures, due to the loss of justification for adequacy.
    This is what happens in contemporary hospital practice. There is no withdrawal of biological conditions, but rather a re-discussion on the adequacy of justifications for maintaining extraordinary life support measures.
    The use of the encephalic criterion to characterize a person’s death cannot be seen only in its utilitarian aspects, but preferentially in its existential aspects.

  7. These bioethical issues are very complex, and the increase in technology and medical advancement only contributes to the complexity. Just because we can do something, does it mean we should? The notion of “brain death” is extremely important, because it directly refers to the patient. As established, someone who is brain dead can still maintain homeostatic processes; however the actual individual- all of the experiences, memories, personality traits, etc that make up who that “person” actually is- is no longer there and never will return. It can be argued that family members who insist on maintaining life sustaining interventions are holding on to a hope that keeping their loved one “alive” will ultimately mean recovery- which in many cases life sustaining interventions are simply delaying the inevitable loss of life. While separating the definitions of brain death and actual death can have medical and scientific implications, it ultimately is undermining the loss of the person. In both definitions, the actual person will not ever be again who they once were, and posing these distinctions can introduce confusion and false hope to loved ones of the person in question. The focus in any end of life case should be providing the most comfortable and dignified experience as defined by the patient or designated proxy’s wishes. If anything, the findings of the pig experiment should be incorporated into discussions with the patient and loved ones in regards to organ donations, however it needs to remain abundantly clear that sustaining organ function cannot and will not lead to recovery of a loved one who has been pronounced brain dead. Science is exciting, and the scientific community is constantly making strides- but we cannot ever lose sight of the human beings in front of us.

  8. Thank you for these explorations, Dr. Miller. Regarding your concluding musing of “physicians [read: health care providers] unilateral authority” to discontinue life-sustaining treatment over the wishes of family members, I wonder more about our ethical responsibility to patients and patient’s families than the authority, per se, of their healthcare providers. I agree that different preferences in care management (continuing or not) present ethical dilemmas for proxies and healthcare providers, alike, but shouldn’t our continued care management be guided by patient and proxy decisions and advanced directives as much as possible? Don’t we owe it to our patients to center them in care decisions regarding them as much as possible, including educating their family members and proxies regarding the benefits, consequences, likely prognoses, etc., of continuing vs discontinuing treatment? Ultimately, regarding the ‘dead-donor rule’, I think a question that needs analyzing in this conversation is how we as providers, honor the ways patients have self-described wanting to live– do they consider living as being brain-dead but biologically sufficiently alive? These answers could provide answers to this otherwise ethical dilemma and would necessitate earlier advanced directives preparations, perhaps helping normalize our preferences for healthcare and death-care in typical settings, like primary care.

  9. The distinction between brain death and biological death is one that leads to the discussion of the ethics of end of life care. While those who are brain dead and still have circulatory and respiratory capabilities are not biologically dead, in most ways they are gone. They are unable to communicate their beliefs, their wishes for their care, and their personhood has gone. Physicians have the duty to facilitate conversations with the patient’s family or proxy so that they understand that their loved one is no longer here. The conversation should include talks on risks and benefits of stopping care compared to risks and benefits of continuing to keep the patient on treatment. With this conversation, the medical team and the family can come to a shared decision on the next steps.

  10. The notion of “life after brain death” and whether a body is still “alive” is controversial with family members of loved ones who were declared brain dead. Families often think life support/ventilators are “keeping the person alive.” I want to visit Terri Shiavo’s case in which she has been in a persistent vegetative state for 15 years. Her brain imaging showed extreme atrophy and cavities within the brain expanded, filling with fluid because of loss in brain mass. This brain atrophy occurred in a vegetative state, in which there is still a functioning brain stem, and the person was able to breathe spontaneously. Thus, Shiavo’s case shows the juxtaposition of the mind vs body. Even without the vent, there was continued autonomic physiological functioning and an “alive body,” but severe cerebral brain atrophy. Brain death, on the other hand, is irreversible loss of brainstem functioning. The only thing that is keeping the body “alive” is the life support machine. It is true that one’s organs and body are “biologically alive” but higher functions that define a person is not.

    Thus, there are many ethical dilemmas with keeping people who are declared brain dead who are sustained on ventilators and other life supporting measures already. There are also independent ethical issues with xenotransplantation. Now, putting the two together and testing a pig kidney on a brain-dead woman on a ventilator raises unique and complex ethical challenges. This research was a transplant breakthrough and opens a whole new lens into possible medical advancements, but at what cost? If more research would come from this, the notion of informed consent and the declaration of brain death diagnosis would have to be completely clear and valid, which is still a controversy today with one’s family and loved ones.

  11. This article is very thought-provoking. While I do think that delineating brain-death versus biological death is an interesting, ethical question (“The pig kidney experiment offers further evidence that those who are considered brain-dead remain alive”), it is shifting the focus away from the core question of: is this person’s end-of-life wishes being granted, whether they are brain-alive or biologically-alive? The further we drift away from this core question, the more likely we insert our own paternalistic opinions over the wishes of our patients, our loved ones, etc. It should only be up to the individual to determine their end-of-life wishes, and this is why it is all the more important to encourage clients to fill out advanced directives. An advanced directive could delineate what the individual wishes if they were determined to be brain-dead vs biologically dead, for example. The example you present of the pregnant, brain-dead mother giving birth to a healthy newborn is a great success story, but I would have been interested in reading more details surrounding that decision (whose decision was it, what was the likelihood of survival, etc.) to incubate the fetus for the vast majority of its gestational period.

  12. Death classically had been thought of as cessation of circulation and respiration, though advances in medicine, including ventilators, pressors, ECMO, and other life-sustaining therapies, have allowed hearts to continue beating and lungs to continue breathing when a brain is no longer functioning. Thus, cardiopulmonary dysfunction as a cause of death, though certainly sufficient, is not necessary if there is irreversible neurologic damage. However, as mentioned in the post, ethicists have argued back and forth about whether neurologically-determined death (NDD) is a valid declaration of death or not.
    I argue that NDD provides a clear end point for withdrawal of life support in patients who retain cardiopulmonary function with neurologic death, thereby potentially eliminating confusing conversations with family about futility and enable families and loved ones to accept the reality of their loss. It allows the preservation of human dignity in determining an end to life without subjecting patients to ongoing invasive therapies with degradation of the body through hospital-acquired infections and other complications. NDD also respects the autonomy of patients who are registered organ donors to help others in need; if awaiting cardiopulmonary death for all organ donors, their wishes are only fulfilled if they “pass” within a certain timeframe after withdrawal of life support therapy. Keeping an individual’s body functioning with cardiopulmonary support when they are brain dead is clearly not utilitarian – it focuses on the individual with arguably futile endpoints and ignores the benefits of freeing up hospital resources and providing organs for transplantation.
    Thus, the New York Times article changing the wording from “kept alive” to “sustained” is a part of the medical community’s ongoing attempt to educate the public and dispel myths about brain death. The concept of “death” can be the biological loss of the function of any of one’s pivotal organs — brain, heart, or lungs. Xenotransplanting a pig kidney into a body with a beating heart and breathing lungs, but without any brain functionality, is not an argument that the individual is “alive.” Rather, this is further acknowledgement that NDD is an entirely valid declaration of death from the family of this patient and from the scientific community, in that the individual’s body was in part donated to science to assist with this research.

  13. I agree with your comment in regards to the fact that bioethics analysis and judgment should always be based on solid evidence, but I disagree with the statement that brain-dead patients remain alive. As shown by numerous amounts of study, after major complex brain systems aren’t working, even if there is little to no brain activity, the patient is considered “gone”. One of the main reasons that the rest of the organs/systems are still working is due to external forces, such as ventilators. If we turned off the machines sustaining their lives, the remaining organs wouldn’t last that long. Making the decision to turn off the machines can be a very difficult job for the family, and therefore is something to be weighed on. I believe we still have a lot to discuss in regards to who should make the decision, but I believe that there is no right answer, as the family members could see the physician as murdering their loved ones, and further causing more issues.

  14. The problem is that the woman who gave birth to a baby was not brain dead – by brain-dead-criteria. The brain stem reflexes keep many systems alive including the reproductive system. Even if the cortex is completely damaged and the person has gone into a true PVS, it remains a fact that these people were usually kept on life support for a long time and therefore their brain stem recovers but not the damaged areas of cortex and hence perception. There seem to be a confusion among many on what are the actual criteria for brain dead.
    It would be good to recall that Persistent an Permanent Vegetative States (PVS) are always a side effect of treatment. Whereas in the past one would say, ‘why are you keeping her on a machine’ as was the case for Karen Ann Quinlan, nowadays many seem to accepts life support (and indefinite life support, at that) as a right and obligation. Once in a PVS that person is actually not dying any more. The person now has a body-function but not a cognitive-function. Again, as one commentator above said, this is not to be confused with minimally conscious states (which may be even worse for the poor patient).
    We have enough technology to study the states of patients; but more importantly we should se where the moral line has to be drawn

  15. In an age of exponentially increasing biomedical technological interventions, life and death may not be clearly dichotomous. The absence of complete biological death does not equate to one being fully alive, so to speak. Neither is it the case, today, that brain death immediately and unequivocally translates into complete biological death.

    Certainly, an irreversible loss of brain function that leads to cardiac standstill, without intervention, would culminate in complete biological death; and today there is no aspect of said situation that is reversible through medical or surgical intervention. However, the artificial maintenance, that sustains, at least in part, an individual’s biological functioning is also mutually interdependent on the physiological functions, or capacity to do so, throughout the organism. Neither biomedical intervention nor physiological capacity alone, in a brain-dead individual, comprise sustainable life.

    I do agree that bioethical analysis and judgment should be based on evidence of biological fact. Simultaneously, I do not disagree, today, that brain-death is medicolegal death. It appears two things can be true: one can be both dead and alive, depending on definition and level of intervention.

    Lastly, what is irreversible today may not necessarily be irreversible tomorrow. The nexus point of where death is defined will continue to change over time, in a setting of increasing advancements in biomedical technological interventions and as we confront the legal and bioethical challenges around them.

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