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Arguments Rejecting Neurologic Criteria to Determine Death
Abstract
This chapter examines concepts and criteria of death and the coherence of their associations. Concepts of death fall into two broad categories: non-ontological and ontological. Non-ontological concepts include death as a cluster kind and death as a process; the corresponding criteria are stipulative, based on pragmatic concerns. Ontological concepts are essentially either psychological (cessation of “personhood,” equated with capacity for thinking and self-awareness) or biological (cessation of the human organism). The psychological concept corresponds to a “higher brain” criterion, namely irreversible, permanent nonfunction (destruction) of bilateral thalami (the sufficiency of neocortical destruction alone being uncertain); anatomically broader criteria are sufficient but not necessary. The biological concept corresponds to a criterion of irreversible, permanent cessation of circulation of oxygenated blood (irreversible cessation of brain function being necessary but not sufficient). Irreversible apneic unconsciousness is best understood not as a concept of death but as a stipulative criterion. Concepts of life and death and their corresponding criteria derive from fundamental worldviews, on which there has been no consensus for over two millennia, nor is there likely ever to be. Respect for deeply held fundamental worldviews requires allowance for personal specification of circulatory or brain-based criteria.
When the Uniform Law Commission (ULC) was recently in the process of revising the Uniform Determination of Death Act (UDDA), Neurology® ran a series of debates over certain controversial issues being deliberated. Omitted was a debate over the fundamental concept underlying brain death. In his introductory article, Bernat offered reasons for this omission: "It is not directly relevant to practicing neurologists who largely accept brain death, do not question its conceptual basis, …." In this article I argue the opposite: the fundamental concept of death is highly relevant to the clinical criteria and tests used to diagnose it. Moreover, most neurologists in fact disagree with the conceptual basis articulated by Bernat. Basically, there are 3 competing concepts of death: (1) biological: cessation of the integrative unity of the organism as a whole (endorsed by Bernat and the 1981 President's Commission), (2) psychological: cessation of the person, equated with a self-conscious mind (endorsed by half of neurologists), and (3) the vital work concept proposed by the 2008 President's Council on Bioethics. The first actually corresponds to a circulatory, not a neurologic, criterion. The second corresponds to a "higher brain" criterion. The third corresponds loosely to the UK's "brainstem death" criterion. In terms of the biological concept, current diagnostic guidelines entail a high rate of false-positive declarations of death, whereas in terms of the psychological concept, the same guidelines entail a high rate of false-negative declarations. Brainstem reflexes have nothing to do with any death concept (their role is putatively to guarantee irreversibility). By shining a spotlight on the deficiencies of the UDDA through attempting to revise it, the ULC may have unwittingly opened a Pandora's box of fresh scrutiny of the concept of death underlying the neurologic criterion-particularly on the part of state legislatures with irreconcilably opposed worldviews.
The debate over the determination of death has been raging for more than fifty years. Since then, objections against the diagnosis of brain death from family members of those diagnosed as dead-have been increasing and are causing some countries to take novel steps to accommodate people's beliefs and preferences in the determination of death. This, coupled with criticism by some academics of the brain death criterion, raises some questions about the issues surrounding the determination of death. In this paper, we discuss some of the main approaches to death determination that have been theoretically proposed or currently put into practice and propose a new approach to death determination called "weak pluralism" as a reasonable ethical and political alternative to respect diversity in death determination.
Limb regeneration is a frontier in biomedical science. Identifying triggers of innate morphogenetic responses in vivo to induce the growth of healthy patterned tissue would address the needs of millions of patients, from diabetics to victims of trauma. Organisms such as Xenopus laevis-whose limited regenerative capacities in adulthood mirror those of humans-are important models with which to test interventions that can restore form and function. Here, we demonstrate long-term (18 months) regrowth, marked tissue repatterning, and functional restoration of an amputated X. laevis hindlimb following a 24-hour exposure to a multidrug, pro-regenerative treatment delivered by a wearable bioreactor. Regenerated tissues composed of skin, bone, vasculature, and nerves significantly exceeded the complexity and sensorimotor capacities of untreated and control animals' hypomorphic spikes. RNA sequencing of early tissue buds revealed activation of developmental pathways such as Wnt/β-catenin, TGF-β, hedgehog, and Notch. These data demonstrate the successful "kickstarting" of endogenous regenerative pathways in a vertebrate model.
Brain death has been accepted worldwide medically and legally as the biological state of death of the organism. Nevertheless, the literature has described persistent problems with this acceptance ever since brain death was described. Many of these problems are not widely known or properly understood by much of the medical community. Here we aim to clarify these issues, based on the two intractable problems in the brain death debates. First, the metaphysical problem: there is no reason that withstands critical scrutiny to believe that BD is the state of biological death of the human organism. Second, the epistemic problem: there is no way currently to diagnose the state of BD, the irreversible loss of all brain functions, using clinical tests and ancillary tests, given potential confounders to testing. We discuss these problems and their main objections and conclude that these problems are intractable in that there has been no acceptable solution offered other than bare assertions of an ‘operational definition’ of death. We present possible ways to move forward that accept both the metaphysical problem - that BD is not biological death of the human organism - and the epistemic problem - that as currently diagnosed, BD is a devastating neurological state where recovery of sentience is very unlikely, but not a confirmed state of irreversible loss of all [critical] brain functions. We argue that the best solution is to abandon the dead donor rule, thus allowing vital organ donation from patients currently diagnosed as BD, assuming appropriate changes are made to the consent process and to laws about killing.
The biophilosophic justification for the idea that “brain death” (or total brain failure) is death needs to support two claims: (1) that what dies in human death is a human organism, not merely a psychological entity distinct from it; (2) that total brain failure signifies the end of the human organism as a whole. Defenders of brain death typically assume without argument that the first claim is true and argue for the second by defending the “integrative unity” rationale. Yet the integrative unity rationale has fallen on hard times. In this article, I give reasons for why we should think of ourselves as organisms, and why the “fundamental work” rationale put forward by the 2008 President’s Council is better than the integrative unity rationale, despite persistent objections to it.
Modularity is reductionism and materialism, where modules are considered as building blocks per se. By contrast self-organization of modules in living organisms, like plants, generates the emergence of integrated systems with new properties not predicted by the properties of the modules. This can occur at the hierarchy of a series of scalar levels, where emergent systems become modules for emergence of new systems on the next higher scalar level akin to a hierarchy of networks from molecules, cells and individuals up to the levels of ecosystems, biomes and the entire biosphere or Gaia. The systems on these levels are holobiont-like systems, i.e., central organisms in interaction with all their associated organisms as a unit for selection in evolution. Systems biology, now a modern aspect of plant biology, has started with the advancement of whole-plant physiology in the early 1970s unraveling the roles of signaling for integration and cooperation of parts or modules in the performance of entire plants. Fixation of information in plant memory and emergence from such storage rules the timing of events of emergence. With the enthusiasm promoted by the creative self-organization of modules into the emergence of exciting new systems, biology diverts from the reductionism and materialism of bare modularity. Understanding emergence helps to advance on the rocky paths towards understanding the complexity of life.
Although death statutes permitting physicians to declare brain death are relatively uniform throughout the United States, academic debate persists over the equivalency of human death and brain death. Alan Shewmon showed that the formerly accepted integration rationale was conceptually incomplete by showing that brain-dead patients demonstrated a degree of integration. We provide a more complete rationale for the equivalency of human death and brain death by defending a deeper understanding of the organism as a whole (OaaW) and by using a novel strategy with shared objectives to justify death determination criteria. Our OaaW account describes different types of OaaW, defining human death as the loss of status as a human OaaW. We defend human death as similar to nonhuman death in terms of wakefulness, but also distinct in terms of the sui generis properties, particularly conscious awareness. We thereby defend the equivalency of brain death and human death using a resulting neurocentric rationale.
Death to Dust: What Happens to Dead Bodies? provides the answers to the questions about corpses that professionals and layman alike want to, but were afraid to ask: What really does happen to a body after death? What does our culture do with corpses and what have other cultures done? How does a body really turn to dust? What happens during autopsies, dissection, embalming, cremation, and cryogenic preservation? How do we transport bodies and what does a medical examiner really do? How about the more bizarre uses for corpses, such as cannibalism, body snatching, and use in the secret rites of various cultures?
In more than 800 pages, this book gives the latest information on organ and tissue donation and the arcane and secretive world of the funeral industry.
We rarely speak about death—because it is the pornography of our culture and we know so little about it. This book sheds some light into dark corners of our society and proves that, once again, truth is stranger than fiction.
Although some decades have passed, there are still worldwide controversies about a concept of human death on neurological grounds. There are also disagreements on the diagnostic criteria for brain death, whether clinical alone or clinical plus ancillary tests. Moreover, some scholars who were strong defenders of a brain-based standard of death are now favoring a circulatory-respiratory standard. The study of coma is extremely important because lesions of the brain are responsible for quality of life in patients or cause of death. The main goal of Brain Death and Disorders of Consciousness is to provide a suitable scientific platform to discuss all topics related to human death and coma.
The determination of brain death is typically made on the basis of clinical assessment (shown in a video) and requires demonstration of the permanent loss of all brain function, including brainstem function, in the absence of factors that may confound the assessment. If these factors cannot be eliminated, or if the examination cannot be safely or fully performed, ancillary testing is conducted.
Jahi McMath was a 13-year-old girl who was declared brain dead on December 12, 2013, after a hemorrhagic complication following complex oropharyngeal surgery. Her case gained international attention as her mother fought a legal battle to keep her on life support. Upon issuance of a death certificate shortly after the declaration of brain death, Jahi was transferred from California to New Jersey, where the law includes a religious exemption from the neurologic determination of death. There she became statutorily resurrected and was treated as a comatose, living patient for the next four and a half years. During that time, she underwent menarche and other aspects of puberty and developed intermittent responsiveness to commands, documented by eyewitness attestations and multiple home videos. Jahi died on June 18, 2018, from abdominal complications. This article summarizes her clinical history over those intervening years, taken directly from her medical records and personal observation. Her case represents an instance of a false-positive diagnosis of brain death, unquestionably made according to both the pediatric and adult guidelines, reinforced by four false-positive EEGs and a false-positive radionuclide blood flow test. The bioethical consequences of a nonnegligible risk of false-positive declaration of death are profound.
Jahi McMath was diagnosed brain dead on 12/12/2013 in strict accordance with both the pediatric and adult Guidelines, reinforced by 4 isoelectric electroencephalograms and a radionuclide scan showing intracranial circulatory arrest. Her magnetic resonance imaging scan 9 1/2 months later surprisingly showed gross integrity of cortex, basal ganglia, thalamus, and upper brainstem. The greatest damage was in the white matter, which was extensively demyelinated and cystic, and in the lower brainstem, most likely from partial herniation that resolved. The apparent integrity of gray matter and the ascending reticular activating system may have provided a potential structural basis for the reemergence of some limited brain functions, while the white matter and lower brainstem lesions would have caused severe motor disability, brainstem areflexia and apnea. The findings indicate that there could never have been a period of sustained intracranial circulatory arrest. Rather, at the time of brain death diagnosis, low blood flow below the detection threshold of the radionuclide scan was sufficient to maintain widespread neuronal viability, though insufficient to support synaptic function. Her case represents the first indirect confirmation of the reality and clinical relevance of global ischemic penumbra, hypothesized in 1999 as a generally unacknowledged and possibly common brain death mimic.
Some patients who have been diagnosed as “dead by neurologic criteria” continue to exhibit certain brain functions, most commonly, neuroendocrine functions. In this chapter, we review the pathophysiology of brain death that can lead either to neuroendocrine failure or to preserved neuroendocrine functioning. We review the evidence on continued hypothalamic functioning in patients who have been declared “brain dead,” examine potential mechanisms that would explain these findings, and discuss how these findings create additional confounds for brain death testing. We conclude by reviewing the evidence for the management of hypothalamic–pituitary failure in the setting of brain death and organ transplantation.
Discrepancies between the Uniform Determination of Death Act (UDDA) and the adult and pediatric diagnostic guidelines for brain death (BD) (the “Guidelines”) have motivated proposals to revise the UDDA. A revision proposed by Lewis, Bonnie and Pope (the RUDDA), has received particular attention, the three novelties of which would be: (1) to specify the Guidelines as the legally recognized “medical standard,” (2) to exclude hypothalamic function from the category of “brain function,” and (3) to authorize physicians to conduct an apnea test without consent and even over a proxy’s objection. One hundred seven experts in medicine, bioethics, philosophy, and law, spanning a wide variety of perspectives, have come together in agreement that while the UDDA needs revision, the RUDDA is not the way to do it. Specifically, (1) the Guidelines have a non-negligible risk of false-positive error, (2) hypothalamic function is more relevant to the organism as a whole than any brainstem reflex, and (3) the apnea test carries a risk of precipitating BD in a non-BD patient, provides no benefit to the patient, does not reliably accomplish its intended purpose, and is not even absolutely necessary for diagnosing BD according to the internal logic of the Guidelines; it should at the very least require informed consent, as do many procedures that are much more beneficial and less risky. Finally, objections to a neurologic criterion of death are not based only on religious belief or ignorance. People have a right to not have a concept of death that experts vigorously debate imposed upon them against their judgment and conscience; any revision of the UDDA should therefore contain an opt-out clause for those who accept only a circulatory-respiratory criterion.
Substantial progress has been made over the past two decades in detecting, predicting and promoting recovery of consciousness in patients with disorders of consciousness (DoC) caused by severe brain injuries. Advanced neuroimaging and electrophysiological techniques have revealed new insights into the biological mechanisms underlying recovery of consciousness and have enabled the identification of preserved brain networks in patients who seem unresponsive, thus raising hope for more accurate diagnosis and prognosis. Emerging evidence suggests that covert consciousness, or cognitive motor dissociation (CMD), is present in up to 15–20% of patients with DoC and that detection of CMD in the intensive care unit can predict functional recovery at 1 year post injury. Although fundamental questions remain about which patients with DoC have the potential for recovery, novel pharmacological and electrophysiological therapies have shown the potential to reactivate injured neural networks and promote re-emergence of consciousness. In this Review, we focus on mechanisms of recovery from DoC in the acute and subacute-to-chronic stages, and we discuss recent progress in detecting and predicting recovery of consciousness. We also describe the developments in pharmacological and electrophysiological therapies that are creating new opportunities to improve the lives of patients with DoC.
Although death by neurologic criteria (brain death) is legally recognized throughout the United States, state laws and clinical practice vary concerning three key issues: (1) the medical standards used to determine death by neurologic criteria, (2) management of family objections before determination of death by neurologic criteria, and (3) management of religious objections to declaration of death by neurologic criteria. The American Academy of Neurology and other medical stakeholder organizations involved in the determination of death by neurologic criteria have undertaken concerted action to address variation in clinical practice in order to ensure the integrity of brain death determination. To complement this effort, state policymakers must revise legislation on the use of neurologic criteria to declare death. We review the legal history and current laws regarding neurologic criteria to declare death and offer proposed revisions to the Uniform Determination of Death Act (UDDA) and the rationale for these recommendations.
A 28-year-old woman suffered a traffic accident resulting in severe head injuries with deleterious prognosis. Diagnostics further revealed a hitherto unknown pregnancy, at suspected week 9. Based on the patient’s wish to donate organs, brain death protocol confirmed irreversible loss of brain function. Yet, vital pregnancy rendered organ transplantation impossible. Multiple ethical and legal issues arose, from invalidation of established legal care after brain death to the delivery of a healthy child after trauma and long-term critical care. After medicolegal and ethical counselling, pregnancy was sustained, and the goal of organ donation postponed. Critical care focused on foetal homeostasis. At 30+4 weeks, a viable girl was born via assisted vaginal delivery. Postpartal organ donation resulted in heart, kidney and pancreas transplantation. The case emphasises the medical, legal and ethical challenges to combine two apparently diametrical goals: the successful full-term pregnancy and the fulfilment of a patient’s wish to donate organs.
Disturbing cases continue to be published of patients declared brain dead who later were found to have a few intact brain functions. We address the reasons for the mismatch between the whole-brain criterion and brain death tests, and suggest solutions. Many of the cases result from diagnostic errors in brain death determination. Others probably result from a tiny amount of residual blood flow to the brain despite intracranial circulatory arrest. Strategies to lessen the mismatch include improving brain death determination training for physicians, mandating a test showing complete intracranial circulatory arrest, or revising the whole-brain criterion.
Death can be defined as the permanent cessation of the organism as a whole. Although the organism as a whole is a century-old concept, it remains better intuited than analyzed. Recent concepts in theoretical biology including hierarchies of organization, emergent functions, and mereology have informed the idea that the organism as a whole is the organism’s critical emergent functions. Because the brain conducts the critical emergent functions including conscious awareness and control of respiration and circulation, the cessation of brain functions is death of the organism. A newer concept, the brain as a whole, may offer a superior criterion of death to the whole-brain criterion, because it more closely matches accepted clinical brain death tests and confirms the cessation of the organism’s emergent functions. Although the concepts of organism as a whole and brain as a whole remain vague and in need of rigorous biophilosophical analysis, their future precision will be restricted by the categorical limitations intrinsic to theoretical biological models.
The American Academy of Neurology holds the following positions regarding brain death and its determination, and provides the following guidance to its members who encounter resistance to brain death, its determination, or requests for accommodation including continued use of organ support technology despite neurologic determination of death. The medical professions ability to determine death accurately, whether caused by irreversible brain or circulatory failure, is integral to the maintenance of the public trust in the professions fulfillment of its fiduciary responsibility to its patients. In 1981, the Uniform Determination of Death Act (UDDA) was published, a statute proposed by the American Bar Association, the American Medical Association, the National Conference of Commissioners on Uniform State Laws, and the Presidents Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research.1-4 The UDDAs position served to address a societal problem created in the mid-20th century as a consequence of the development of mechanical ventilation and other organ-sustaining technologies. As a result, irreversibly brain-injured individuals could have their physiologic existence sustained for variable periods of time. The purpose of the UDDA was to establish a uniform definition of death, determined by acceptable medical standards, that was clear and socially accepted, with the intention of being adopted in every US jurisdiction. The Presidents Commission and the UDDA considered death to be a unitary phenomenon regardless of causation, resulting from either irreversible failure of brain or circulatory function. It recognized the biological facts of universal applicability, while seeking to protect patients against ill-advised idiosyncratic pronouncements of death. The UDDA perspectives are supported by a preponderance of medical and legal authorities, the original UDDA wording having been supported by the American Academy of Neurology (AAN).1,5 Brain death is death of the individual due to irreversible loss of function to the entire brain. Otherwise known as death by neurologic criteria, it is accepted as legal death in all US jurisdictions, as determined by one or more medical professionals through application of accepted medical standards.5-11 The standards for adult and pediatric patients that are currently widely accepted by the medical profession are the 2010 Evidence-Based Guideline Update: Determining Brain Death in Adults (endorsed by the Neurocritical Care Society, the Child Neurology Society, the Radiologic Society of North America, and the American College of Radiology) and the 2011 Guidelines for the Determination of AAN = American Academy of Neurology; AAP = American Academy of Pediatrics; CNS = Child Neurology Society; SCCM=Society of Critical Care Medicine; UDDA = Uniform Determination of Death Act.
At its inception, “brain death” was proposed not as a coherent concept but as a useful one. The 1968 Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death gave no reason that “irreversible coma” should be death itself, but simply asserted that the time had come for it to be declared so. Subsequent writings by chairman Henry Beecher made clear that, to him at least, death was essentially a social construct, and society could define it however it pleased. The first widely endorsed attempt at a philosophical justification appeared thirteen years later, with a report from the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research and a seminal paper by James Bernat, Charles Culver, and Bernard Gert, which introduced the insightful tripartite scheme of concept, criterion, and tests for death. Their paper proposed that the correct concept of death is the “permanent cessation of functioning of the organism as a whole,” which tenuously remains the mainstream concept to this day. In this essay, I focus on this mainstream concept, arguing that equating brain death with death involves several levels of incoherence: between concept and criterion, between criterion and tests, between tests and concept, and between all of these and actual brain death praxis.
Despite the popularity, success, and growth of programs of organ donation after the circulatory determination of death (DCDD), a long‐standing controversy persists over whether the organ donor is truly dead at the moment physicians declare death, usually following five minutes of circulatory and respiratory arrest. Advocates of the prevailing death determination standard claim that the donor is dead when declared because of permanent cessation of respiration and circulation. Critics of this standard argue that while the cessation of respiration and circulation may be permanent, it may not be irreversible at the moment death is declared because, if cardiopulmonary resuscitation were performed, it might succeed. And because irreversibility of cessation of respiration and circulation is required by both the statute and the biological concept of death, the donor must be alive. Who is correct?
Making two related distinctions clarifies the cause of the disagreement over whether the DCDD donor is dead and points to a possible resolution. First, in a determination of death, there is an important distinction between the permanent and the irreversible cessation of circulation and respiration—two associated phenomena that are often confounded. Second, there is an important distinction between the medical practice standard for death determination, in which physicians certify the permanent cessation of vital functions as sufficient for death declaration, and the underlying biological concept of death that requires the irreversible cessation of vital functions because death, by definition, is an irreversible event.
Discussion of the “dead donor rule” is challenging because it implicates views about a wide range of issues, including whether and when patients are appropriately declared dead, the validity of the doctrine of double effect, and the moral difference between or equivalence of active euthanasia and withdrawal of life‐sustaining treatment. The DDR will be defined here as the prohibition against removal of organs necessary for the life of the patient—that is, the prohibition of intentionally ending the life of a patient through organ removal. At a minimum, it is difficult not to see the DDR as grounded in a set of laws, norms, values, and practices that are firmly entrenched and have a great deal of philosophical, religious, and legal support. Obviously, the primary argument against the DDR is that it is highly desirable that we continue to procure organs for transplantation, combined with the belief that those from whom we often and possibly typically procure organs are not “really” dead. If donors are not really dead, then we are left with a dilemma: either we abandon organ procurement, or we abandon the DDR. Such a move should be taken only if the way we currently delineate the dead (those from whom it is acceptable to remove organs) cannot be maintained or defended. I will suggest that this is not the case.
From the start, I followed the case of Jahi McMath with great interest. In December 2013, she clearly fulfilled the diagnostic criteria for brain death. As a neurologist with a special interest in chronic brain death, I was not surprised that, after she was flown to New Jersey, where she became statutorily resurrected and was treated as a comatose patient, Jahi's condition quickly improved. In 2014, her family reported that she sometimes responded to simple motor commands. I shared the general skepticism regarding these reports, assuming that the family was in denial and was misinterpreting spinal myoclonus (a rapid, involuntary twitch generated by the spinal cord) as volitional. The family had noticed that when Jahi's heart rate was above eighty beats per minute, she was more likely to respond, as though the heart rate reflected some sort of inner level of arousal. So they began to make video recordings. I have been privileged to be entrusted with copies of these recordings, forty‐eight of which proved suitable for assessing alleged responsiveness. All have been certified by a forensic video expert as unaltered. The first thing that struck me was that the great majority of the alleged responses were not spinal myoclonus. In fact, they did not resemble any type of spontaneous, involuntary movement described in patients paralyzed from high spinal cord lesions.
Among the old and new controversies over brain death, none is more fundamental than whether brain death is equivalent to the biological phenomenon of human death. Here, I defend this equivalency by offering a brief conceptual justification for this view of brain death, a subject that Andrew Huang and I recently analyzed elsewhere in greater detail. My defense of the concept of brain death has evolved since Bernard Gert, Charles Culver, and I first addressed it in 1981, a development that paralleled advances in intensive care unit treatment. The century‐old concept of the organism as a whole provides the fundamental justification for the equivalency of brain death and human death. In our technological age, in which increasing numbers of components and systems of an organism can be kept alive, and for longer intervals, the permanent cessation of functioning of the organism as a whole is the phenomenon that best corresponds to its death.
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This article clarifies some issues raised by Dr. Ariane Lewis in her recent “Current Opinion/Arguments” article on the case of Jahi McMath. Review of case materials. Jahi’s case most likely represents an instance of global ischemic penumbra (GIP) mimicking brain death (BD), with intracranial blood flow too low to support neuronal function or to be detected by radionuclide scan but sufficient to prevent widespread necrosis. Her MRI scan 9 months after the ischemic insult showed gross preservation of cortical and internal structures, incompatible with there ever having been a period of completely absent blood flow. Regarding Jahi’s alleged intermittent responsiveness, the set of videos, unsystematic as they are, constitutes convincing evidence that her movements in seeming response to command are not of spinal cord origin and are indeed voluntary responses, placing her in the category of minimally conscious state (MCS). In the absence of serial examinations by experts in MCS, the benefit of the doubt should be given. Unfortunately, her death on June 22, 2018, 4½ years after the diagnosis of BD, precludes such examinations. During those 4½ years, Jahi underwent menarche, with three documented menstrual periods, and ongoing pubertal development. Her case is an important example of false-positive diagnosis of BD, demonstrating the inability of current diagnostic standards to distinguish true BD from potentially reversible brain nonfunction due to GIP. The incidence of such mimicry is impossible to determine, because in most cases a BD diagnosis becomes a self-fulfilling prophecy.
The whole-brain criterion of death provides that a person who has irreversibly lost all clinical functions of the brain is dead. Bedside brain death (BD) tests permit physicians to determine BD by showing that the whole-brain criterion of death has been fulfilled. In a nonsystematic literature review, we identified and analyzed case reports of a mismatch between the whole-brain criterion of death and bedside BD tests. We found examples of patients diagnosed as BD who showed (1) neurologic signs compatible with retained brain functions, (2) neurologic signs of uncertain origin, and (3) an inconsistency between standard BD tests and ancillary tests for BD. Two actions can resolve the mismatch between the whole-brain criterion of death and BD tests: (1) loosen the whole-brain criterion of death by requiring only the irreversible cessation of relevant brain functions and (2) tighten BD tests by requiring an ancillary test proving the cessation of intracranial blood flow. Because no one knows the precise brain functions whose loss is necessary to fulfill the whole-brain criterion of death, we advocate tightening BD tests by requiring the absence of intracranial blood flow.
New technologies and medical treatments have complicated questions such as how to determine the moment when someone has died. The result is a failure to establish consensus on the definition of death and the criteria by which the moment of death is determined. This creates confusion and disagreement not only among medical, legal, and insurance professionals but also within families faced with difficult decisions concerning their loved ones. Distinguished bioethicists Robert M. Veatch and Lainie F. Ross argue that the definition of death is not a scientific question but a social one rooted in religious, philosophical, and social beliefs. Drawing on history and recent court cases, the authors detail three potential definitions of death - the whole-brain concept; the circulatory, or somatic, concept; and the higher-brain concept. Because no one definition of death commands majority support, it creates a major public policy problem. The authors cede that society needs a default definition to proceed in certain cases, like those involving organ transplantation. But they also argue the decision-making process must give individuals the space to choose among plausible definitions of death according to personal beliefs. Taken in part from the authors' latest edition of their groundbreaking work on transplantation ethics, Defining Death is an indispensable guide for professionals in medicine, law, insurance, public policy, theology, and philosophy as well as lay people trying to decide when they want to be treated as dead.
A 2-year-old boy with severe head trauma was diagnosed brain dead according to the 2011 Pediatric Guidelines. Computed tomographic (CT) scan showed massive cerebral edema with herniation. Intracranial pressures were extremely high, with cerebral perfusion pressures around 0 for several hours. An apnea test was initially contraindicated; later, one had to be terminated due to oxygen desaturation when the Pco2 had risen to 57.9 mm Hg. An electroencephalogram (EEG) was probably isoelectric but formally interpreted as equivocal. Tc-99m diethylene-triamine-pentaacetate (DTPA) scintigraphy showed no intracranial blood flow, so brain death was declared. Parents declined organ donation. A few minutes after withdrawal of support, the boy began to breathe spontaneously, so the ventilator was immediately reconnected and the death declaration rescinded. Two hours later, life support was again removed, this time for prognostic reasons; he did not breathe, and death was declared on circulatory-respiratory grounds. Implications regarding the specificity of the guidelines are discussed.
All human beings know the fact and reality of death, yet like Alice, our existence is in many ways a search to understand death. As Samuel Johnson observed to Boswell, “the whole of life is but keeping away the thoughts of it.” Theologians, philosophers, and poets struggle with the meaning of death. Saint Augustine asks what type of death did God intend to enforce His commands. “Was it the death of the soul, or of the body, or of the entire man, or the so-called second death?”1 Yet for Dylan Thomas, “After the first death, there is no other.” The law, too, must face death, particularly the dilemma created by advances in medical science that permit the artificial maintenance of heart, lung, and nourishment functions. This article examines the law’s approach to death by inquiring into the legal issues raised by cardiopulmonary, whole-brain, and neocortical definitions of death. The term “cardiopulmonary death” means the irreversible cessation of heart and lung functions.2 “Whole-brain death” means the irreversible cessation of all functions of the entire brain, including the brain stem. “Neocortical death” means the irreversible loss of consciousness and cognitive functions.3 Several arguments and a proposal emerge from this inquiry. The law should and does define criteria for death.
I develop and refine an argument for the total brain death criterion of death previously advanced by Germain Grisez and me:
A human being is essentially a rational animal, and so must have a radical capacity for rational operations. For rational
animals, conscious sensation is a pre-requisite for rational operation. But total brain death results in the loss of the radical
capacity for conscious sensation, and so also for rational operations. Hence, total brain death constitutes a substantial
change—the ceasing to be of the human being. Objections are considered, including the objection that total brain death need
not result in the loss of capacity for sensation, and that damage to the brain less than total brain death can result in loss
of capacity for rational operations.
Human life is operationally defined by the onset and cessation of organismal function. At postnatal stages of life, organismal
integration critically and uniquely requires a functioning brain. In this article, a distinction is drawn between integrated
and coordinated biologic activities. While communication between cells can provide a coordinated biologic response to specific
signals, it does not support the integrated function that is characteristic of a living human being. Determining the loss
of integrated function can be complicated by medical interventions (i.e., “life support”) that uncouple elements of the natural
biologic hierarchy underlying our intuitive understanding of death. Such medical interventions can allow living human beings
who are no longer able to function in an integrated manner to be maintained in a living state. In contrast, medical intervention
can also allow the cells and tissues of an individual who has died to be maintained in a living state. To distinguish between
a living human being and living human cells, two criteria are proposed: either the persistence of any form of brain function
or the persistence of autonomous integration of vital functions. Either of these criteria is sufficient to determine a human
being is alive.
BIOETHICS: A Systematic Approach is an extensive revision of Bioethics: A Return to Fundamentals. The subtitle has changed in order to emphasize that what distinguishes the authors' approach to bioethics from almost all others is that it is systematic. It applies the account of morality and rationality presented in COMMON MORALITY: Deciding What To Do (2004) and MORALITY: Its Nature and Justification, Revised Edition (2005) to the moral problems that arise in the practice of medicine. The concept of rationality used to justify morality is the same concept that is used to define the concept of malady or disease. The book offers an account of the concept of death, and provides an account of euthanasia that fits within the systematic account of morality and rationality that have been provided. It also shows that this systematic account explains the controversy about the morality of abortion. There are new chapters on moral disagreements, abortion, and on "what doctors must know", and significant improvements have been made in the treatment of the concepts of consent and malady. An entire chapter is devoted to the concept of mental maladies. Arguments are also developed against principlism and shows how principlism's authors' misunderstanding of this view undermines their criticisms.
In this riveting and timely work, John P. Lizza presents the first comprehensive analysis of personhood and humanity in the context of defining death. Rejecting the common assumption that human or personal death is simply a biological phenomenon for biologists or physicians to define, Lizza argues that the definition of death is also a matter for metaphysical reflection, moral choice, and cultural acceptance. Lizza maintains that defining death remains problematic because basic ontological, ethical, and cultural issues have never been adequately addressed. Advances in life-sustaining technology and organ transplantation have led to revision of the legal definition of death. It is generally accepted that death occurs when all functions of the brain have ceased. However, legal and clinical cases involving postmortem pregnancy, individuals in permanent vegetative state, those with anencephaly, and those with severe dementia challenge the neurological criteria. Is "brain death" really death? Should the neurological criteria be expanded to include individuals in permanent vegetative state, with anencephaly, and those with severe dementia? What metaphysical, ethical, and cultural considerations are relevant to answering such questions? Although Lizza accepts a pluralistic approach to the legal definition of death, he proposes a nonreductive, substantive view in which persons are understood as "constituted by" human organisms. This view, he argues, provides the best account of human nature as biological, moral, and cultural and supports a consciousness-related formulation of death. Through an analysis of legal and clinical cases and a discussion of alternative concepts of personhood, Lizza casts greater light on the underlying themes of a complex debate. © 2006 by The Johns Hopkins University Press. All Rights Reserved.
This book challenges fundamental doctrines of established medical ethics. It is argued that the routine practice of stopping life support technology causes the death of patients and that donors of vital organs (hearts, liver, lungs, and both kidneys) are not really dead at the time that their organs are removed for life-saving transplantation. Although these practices are ethically legitimate, they are not compatible with traditional medical ethics: they conflict with the norms that doctors must not intentionally cause the death of their patients and that vital organs can be obtained only from dead donors. The aim of this book is to undertake an ethical examination that aims to honestly face the reality of medical practices at the end of life. This involves exposing the misconception that stopping life support merely allows patients to die from their medical conditions, that there is an ethical bright line separating withdrawal of life support from active euthanasia, and that determination of death of hospitalized patients prior to vital organ donation is consistent with the established biological conception of death. A novel ethical justification is required for procuring vital organs from still-living donors. It is contended that in the context of plans to withdraw life support, donors of vital organs are not harmed or wronged by organ procurement prior to death, provided that valid consent is obtained for stopping treatment and organ donation. In view of serious practical difficulties in facing the truth regarding organ donation, an alternative pragmatic account is developed for justifying current practices that relies on the concept of transparent legal fictions. In sum, it is the thesis of this book that to preserve the legitimacy of end-of-life practices, we need to reconstruct medical ethics.
