Death,Brain Death,and the Limits of Science: Why the Whole-Brain Concept of Death is a Flawed Public Policy

See President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Biobehavioral Research, Defining Death: Medical, Legal, and Ethical Issues in the Determination of Death (Washington, D.C.: U.S. Government Printing Office, 1981): At 119.

Bernat J. L. , “The Whole-Brain Concept of Death Remains Optimum Public Policy,” Journal of Law, Medicine & Ethics 34, no. 1 (2006): 35–43, at 41.

Id., at 41.

Rhodes R. , “Death and Dying,” Encyclopedia of Life Sciences (2003): 1–7, at 1.

Bernat J. L. Culver C. Gert B. , “On the Definition and Criterion of Death,” Annals of Internal Medicine 94, no. 3 (1981): 389–394, at 390.

Bernat , id., do not explain the concept of “functioning of the organism as a whole” in terms of entropy-resistance, but in terms of the integration of the functions of smaller subsystems (see id., at 390). However, they do mention, with approval, Korein's early attempts to define the brain as the critical system controlling the organism as a whole in terms of thermodynamics and the resistance of entropy [at 391, citing Korein J. , “The Problem of Brain Death: Development and History,” Annals of the New York Academy of Sciences 315, no. 1 (1978): 19–38]. Therefore Bernat et al. hold the following theses in their 1981: (i) the brain is the critical system controlling the organism as a whole, (ii) without a functioning brain the organism does not function as a whole, and (iii) the brain is critical in virtue of its integrative role in resisting entropy. From (i)-(iii), we can conclude that the idea that “functioning of the organism as a whole” should at least partially be understood in terms of homeostasis and entropy, is implicit in Bernat et al 1981. Additionally, Bernat later made this idea explicit: “Critical functions of the organism as a whole comprise three distinct… categories… [of which one is:] integrating functions that assure homeostasis of the organism… The critical functions in all three categories must be permanently lost for the organism to be dead.” Bernat J. L. , “A Defense of the Whole-Brain Concept of Death,” Hastings Center Report 28, no. 2 (1998): 14–23, at 17-

See Bernat , supra note 5, at 391.

All sentient creatures are moral patients; the ability to feel pain puts one in the moral community, deserving of moral consideration (this is a controversial claim of course, but it is also irrelevant to any point made in the text so I make no attempt to defend it here). However, for the purposes of this paper we are only interested in the subset of human moral patients. I will henceforth use “moral patient” to refer solely to human moral patients, but I should be understood as not ruling out animals as deserving of moral consideration.

The canonical no-miracle argument is from Putnam H. , “What is Mathematical Truth?” in Putnam H. , ed., Mathematics, Matter, and Method: Philosophical Papers (Cambridge: Cambridge University Press, 1975). For a defense of scientific realism see Psillos S. , Scientific Realism: How Science Tracks Truth (London and New York: Routledge, 1999). For different versions of non-realism see Van Fraassen B. C. , The Scientific Image (Oxford: Clarendon Press, 1980) and Goodman N. , Ways of Worldmaking (Indianapolis: Hackett Publishing Company, 1978).

I do not mean to trivialize this important debate. It is a deep and central issue in metaphysics, and many serious philosophers have devoted a great deal of careful, rigorous thought to it. Nonetheless, the overwhelming rational support seems to be on the side of realism, and that should not be ignored.

I thank Dr. Lynne Richardson for pressing me on this point during a presentation at the 2009 Oxford-Mount Sinai Consortium on Bioethics.

I am grateful to an anonymous reviewer for helping me to clarify this section on scientific realism through several interrelated objections; among them is the concern about vagueness.

See Bernat , supra note 5.

See Bernat , supra note 6.

For a more thorough defense see Collins M. , “Reevaluating the Dead Donor Rule,” Journal of Medicine and Philosophy 35, no. 2 (2010): 154–179, from which I draw the following discussion.

See Bernat , supra note 5, at 391.

See Korein J. Machado C. , “Brain Death – Updating a Valid Concept for 2004,” in Machado C. Shewmon D. A. , eds., Brain Death and Disorders of Consciousness (New York: Springer, 2004). See also Korein J. , “Brain Death: Interrelated Medical and Social Issues,” Annals of the New York Academy of Science 315, no. 1 (1978): 1–454.

See Bernat , supra note 5, at 391.

Shewmon D. A. , “The Brain and Somatic Integration: Insights into the Standard Biological Rationale for Equating ‘Brain Death’ with Death,” Journal of Medicine and Philosophy 26, no. 5 (2001): 457–478.

Bernat J. L. , “On Irreversibility as a Prerequisite for Brain Death Determination,” in Machado C. Shewmon D. A. , eds., Brain Death and Disorders of Consciousness (New York: Springer, 2004).

In his 1998, Bernat wrote that “integrating functions that assure homeostasis of the organism [are critical functions of the organism as a whole]… [Further], the presence of [these] functions constitutes sufficient evidence for life” [ Bernat J. L. , “A Defense of the Whole-Brain Concept of Death,” Hastings Center Report 28, no. 2 (1998): 14–23, at 17]. Therefore even Bernat should accept that the presence of homeostasis-main-taining functions such as circulation, cellular respiration, and alveolar gas exchange clearly demonstrate that brain dead individuals are not necessarily dead. Additionally, the worry about vague cases discussed previously can be further alleviated: The brain dead individual with spontaneous circulation, gas exchange, etc. resists entropy and maintains homeostasis and is therefore not a vague case; she is clearly in the category of being biologically alive.

See supra note 21, at 17.

Id.

Id.

Id.

Id.

See supra note 5, at 390.

This should not be taken to imply that I endorse the ad hoc “clinical function” criterion, as I do not. As Miller F. G. Truog R. D. write in “An Apology for Socratic Bioethics,” American Journal of Bioethics 8, no. 7 (2008): 3–7, at 3, “Most physicians have been taught to regard the equivalence of ‘brain death’ and ‘death’ as a medical ‘fact’ on a par with the Kreb's cycle.” I only point out that clinical functions do not rule out neurohormonal functions to show the persistently fallacious reasoning that is routinely appealed to, and that forms the basis for what is accepted as the medical “fact” that brain death is death.

See supra note 4, at 1.

An anonymous reviewer pointed out that some people who are not dead might nonetheless be willing to forgo the protections afforded the living, such as the prohibition against the removal of vital organs. This is correct, and it is consistent with my thesis here, which is simply that whether a brain dead individual is a moral patient is a normative value judgment. Affording living individuals certain moral protections does not imply that those individuals may not voluntarily revoke those protections.

In an earlier paper (see note 15), I stated that the UDDA had gotten it “wrong,” because death is not brain death, and thus the claim made by the UDDA is false. What I should have said is that the legal definition got it wrong because it does not, but should, correspond to biological death. Defending this latter claim is in essence the central goal of this paper.

Beecher H. K. , “A Definition of Irreversible Coma: Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death,” JAMA 205, no. 6 (1968): 337–340.

See also supra note 1.

Department of Health, New York State, Guidelines for Determining Brain Death (2005), at 2–3, available at <http://www.health.state.ny.us/professionals/doctors/guidelines/determi-nation_of_brain_death/docs/determination_of_brain_death.pdf> (last visited August 3, 2010).

See Collins M. , “Consent for Organ Retrieval Cannot be Presumed,” HEC Forum 21, no. 1 (2009): 71–106, where I provide a more detailed defense of the claim that consents for organ removal are not informed, and upon which this discussion is based. I provide textual evidence for each of the listed sources of confusion there.

See supra note 19, at 457–458.

Halevy A. , “Beyond Brain Death?” Journal of Medicine and Philosophy 26, no. 5 (2001): 493–501, at 496.

Youngner S. J. Landefield S. Coulton C. J. Juknialis B. W. Leary M. , “‘Brain Death’ and Organ Retrieval: A Cross-Sectional Survey of Knowledge and Concepts Among Health Professionals,” JAMA 261, no. 15 (1989): 2205–2210.

Robert Truog, a pediatric critical care physician who does have these conversations with family members, is not confused about the conceptual difficulties involved in the brain death doctrine. But even for someone like Dr. Truog, the communication difficulties remain, as Miller and he note: “[The] dead donor rule also poses problems of professional integrity for clinicians who (rightly in our opinion) do not believe that ‘brain dead’ patients are really dead. Under the conventional wisdom, they must insist on the fiction that brain death equals death in their efforts to encourage patients and family members to donate organs (see supra note 28, at 6).” Thus, even for the many physicians who do not uncritically accept that brain death is death, communication difficulties remain.

Id.

Woien S. Rady M. Y. Verheijde J. L. McGregor J. , “Organ Procurement Organizations Internet Enrollment for Organ Donation: Abandoning Informed Consent,” BMC Medical Ethics 7 (2006): 14.

Centers for Medicare and Medicaid Services – Department of Health and Human Services, “Medicare and Medicaid Programs; Conditions for Coverage for Organ Procurement Organizations (OPOs); Final Rule,” 42 CFR Parts 413, 441, 486 and 498. Federal Register 71, no. 104 (2006): 30981–31054.

See supra note 41, at 14.

The dead donor rule states that individuals must be dead prior to organ removal and that organ removal cannot be the proximal cause of death; this rule currently has widespread acceptance. In the context of the dead donor rule, the informed decision to donate one's organs prior to biological death is not allowed. Thus we must either abandon the dead donor rule or discontinue the removal of vital organs from brain dead but living individuals. I have argued elsewhere that the dead donor rule should be abandoned; see supra note 15.

See supra note 15.

As my reviewer pointed out, in addition to changes in the laws, there would also have to be changes in all of the policies surrounding donation, the attitudes among surgeons, anesthesiologists, nurses, administrators, lawyers, and members of the public. This is true; I do not claim that I propose a simple change. However, the serious moral flaws that our current policy engenders demand it.

Rhodes R. , “Justice in Transplant Organ Allocation,” in Rhodes R. Battin M. P. Silvers A. , eds., Medicine and Social Justice (Oxford: Oxford University Press, 2002): 345–361, at 347. See also Rhodes R. , “The Professional Responsibilities of Medicine,” in Rhodes R. Francis L. P. Silvers A. , eds., The Blackwell Guide to Medical Ethics (London: Blackwell Publishing, 2007), for more on this.

Byrne P. A. Weaver W. F. , “‘Brain Death’ Is not Death,” in Machado C. Shewmon D. A. , eds., Brain Death and Disorders of Consciousness (New York: Springer, 2004): 43–49, at 43.

See supra note 19.