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Muddling Through? A Commentary on Controversies in the Determination of Death

Traditionally the cessation of breathing and heart beat has marked the passage from life to death. Shortly after death was determined, the body became a cold corpse, suitable for burial or cremation. Two technological changes in the second half of the twentieth century prompted calls for a new, or at least expanded, definition of death: the development of intensive care medicine, especially the use of mechanical ventilators, and the advent of successful heart transplantation. With the aid of mechanical ventilation, patients with profound neurological damage could be maintained for some period of time despite being in an irreversible coma. The situation of these patients posed two ethical questions. Is it appropriate to stop life-sustaining treatment? If so, is it acceptable to retrieve vital organs for transplantation to save the lives of others before stopping treatment?

In 1968, an Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death proposed that death could be determined on the basis of neurological criteria, thus providing a positive answer to these two questions. According to the position of this committee, patients diagnosed with the cessation of brain functioning are dead, despite the fact that they breathe and circulate blood with the aid of mechanical ventilation. Because they are dead, it is appropriate, indeed imperative, to stop mechanical ventilation. And because they are dead, it becomes ethical to extract vital organs for transplantation before stopping what otherwise would be life-sustaining treatment. Remarkably, this innovative neurological determination of death became the established position in medical ethics and the law throughout the United States, with little debate and controversy.

Proponents of “brain death” claim that determination of death by neurological criteria is consistent with the traditional conception of death as the cessation of vital functioning of the organism. Although “brain dead” patients do not appear to be dead, the reality of their death is “masked” by the activity of mechanical ventilation, as the patient’s body has irreversibly lost all capacity for vital functioning. Over time, however, the coherence and cogency of determining death by neurological criteria has been challenged. Various experts have demonstrated that “brain dead” patients maintained on mechanical ventilation display a range of vital functioning, which conflicts with the judgment that they are dead. These patients maintain hormonal balance, control of temperature, the ability to fight infections, and wound healing. Children diagnosed with “brain death” undergo growth and sexual maturation. Perhaps most dramatically, pregnant women diagnosed with “brain death” have been able to gestate a fetus for up to a few months. How can such facts be squared with a determination of death?

The President’s Council on Bioethics has recently issued a white paper, entitled “Controversies in the Determination of Death.” Exemplary as an educational document, it clearly articulates the history of determining death by neurological criteria, the pertinent scientific and clinical features of patients with “total brain failure,” philosophical issues concerning whether patients with this condition should be considered dead, and policy implications. The Council’s adoption of “total brain failure” to describe this condition is an improvement over “brain death,” as it does not beg the question of whether patients with this clinical presentation are in fact dead. Nevertheless, the Council’s endorsement of the moral status quo is conceptually muddled. It is by no means unique in this regard: conceptual muddle characterizes all efforts to defend the established neurological standard for determination of death.

A telltale sign of incoherence in the defense of the neurological standard is the bizarre language that is invoked to support it. For example, the Council states that “The machine [mechanical ventilator] is, in essence, ventilating a corpse – albeit one that in many ways does not look like a corpse” (p. 3). Similarly, the “brain dead” patient is a “heart-beating cadaver” (p. 8). Reviewing the clinical presentation of “total brain failure,” the Council notes that this condition displays aspects of “somatic health.” The language gets particularly strained at this point: “If the body is a cadaver, then, of course, it is no longer fitting to speak about its ‘health.’ Nonetheless, something like health is still present in the body of a patient with this diagnosis” (p. 39). Finally, the report describes “cases of prolonged ‘somatic survival’ after ‘whole brain death’” (p. 45). The persistent use of scare quotes signifies that something fishy is going on.

Is the linguistic oddity just a function of the distinction between appearance and reality in this complex domain? Patients determined to be dead by neurological criteria certainly don’t appear to be dead. But appearances can be deceptive, and our language may reflect appearances that conflict with reality, as we continue to speak of the sun setting. Early in the Council’s report, it is noted that “The apparent signs of life that remain – a beating heart, warm skin, and minimal, if any, signs of bodily decay – are a sort of mask that hides from plain sight the fact that the biological organism has ceased to function as such” (p. 3). However, it is the latter fact that is challenged by critics of determining death by established neurological criteria; for the biological organism represented by the “brain dead” patient continues to function in a variety of significant ways. How, indeed, can a corpse gestate a fetus? It is difficult to escape the conclusion that if death constitutes the cessation of vital functioning of the organism, then patients diagnosed with “total brain failure” are not dead.

The Council attempts to explain why patients with total brain failure are dead by appeal to the novel notion of “the vital work of a living organism” (p. 60). The living organism does its vital work when it satisfies the following three criteria: it exhibits (1) “receptivity to stimuli and signals from the surrounding environment,” (2) “the ability to act upon the world to obtain selectively what it needs,” and (3) “the basic felt need that drives the organism to act as it must, to obtain what it needs” (p. 61). The white paper claims that patients with a diagnosis of total brain failure completely fail to meet these criteria. In contrast, it is asserted that patients in a persistent vegetative state, who breathe spontaneously but show no signs of consciousness, completely fulfill these criteria.

Granting for the sake of argument that these criteria of vital work discriminate between the living and the dead, for this account to be persuasive, the contrast between these two groups of patients must be transparent. The account of these three criteria is skimpy, making it difficult to determine whether they apply to patients with “total brain failure.” For this reader, it is far from clear that these patients entirely lack the ability to respond to their environment, in view of the range of vital functions that they can perform, such as fighting infections and wound healing. In addition, the vital functioning of these patients may also be understood as satisfying the second criterion of acting upon the world to obtain selectively what they need. A coherent account of why patients with “total brain failure” are dead has not been supplied.

If total brain failure does not constitute death, then we are faced with two opposing policy options. (For the sake of this commentary, I am setting aside the “higher brain” standard of death that links death with permanent loss of consciousness.) First, the living status of patients diagnosed with “total brain failure” makes it unethical to use them as a source of vital organs for transplantation. This would violate “the dead donor rule” – a bedrock norm governing transplantation. It is unethical to kill one person to save the life of another. Deontological rectitude, however, is bought at the price of drastically curtailing the practice of vital organ donation. Indeed, insistence on the dead donor rule arguably would bring vital organ donation to a standstill. The practice of “donation after cardiac death,” discussed in chapter 6 of the white paper, involves extracting vital organs from neurologically compromised patients following withdrawal of mechanical ventilation. Within a very short interval after death is declared on traditional cardiopulmonary criteria, procedures are undertaken to preserve and rapidly extract vital organs. Yet it is questionable whether these patients in fact are dead – an irreversible state – only a few minutes after their hearts have stopped beating.

The second policy option argues that we can and should maintain vital organ donation but that it is necessary to abandon the dead donor rule, because “brain dead” patients are not dead and we can’t be confident that “non-heart beating” organ donors are dead at the time that vital organs are currently being extracted. I have argued in the Hastings Center Reportthat an alternative ethical justification can be given for vital organ donation from living patients, tied to a prior valid decision to withdraw life-sustaining treatment and valid consent to donation. Plainly, this position is controversial, and it is unclear whether it would be acceptable to the public. Abandoning the dead donor rule might undermine public trust, and thus also bring vital organ donation to a standstill.

Faced with these two policy options, it is possible that the Council’s position of muddling through is most reasonable at this time. The established neurological standard for determining death is theoretically incoherent, but its acceptance supports the important practice of vital organ donation. Can the conflict between theory and practice persist? I hesitate to make a prediction. It is clear, however, that here we face a bioethics issue worthy of vigorous public debate. The President’s Council on Bioethics has done an admirable service in clearly presenting the scientific, clinical, and ethical issues that are pertinent to policy judgments concerning the determination of death.

Franklin G. Miller works in the Department of Bioethics at the National Institutes of Health. The opinions expressed in this essay are those of the author and do not reflect the position or policy of the National Institutes of Health, the Public Health Service, or the Department of Health and Human Services.


Published on: January 22, 2009
Published in: Bioethics, Health and Health Care

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