Introduction
Debaters have been ignoring a wildly interesting part of the
topic: namely, what does it mean for a patient to be deceased? Is
brain death sufficient? What about cardiac death? Is it even
possible to define death? How do concepts of death vary across
countries? (Rememberthis topic isnt US-specific!)
Why do definitions of death matter? Well, first, its an
interesting topicality debate. But death also sparks a number of
interesting ethical questions. Is it permissible to harvest organs
from the irreversibly comatose? How does that affect doctors
decisions to withdraw life support? How should we choose between
patients in need of organs and potential brain-dead donors?
Even seemingly uncontroversial concepts of deathfor example,
cessation of cardiopulmonary activitycome with a host of a
complications. How soon after cardiac death should we extract
organs? Sooner is typically betterbut what if theres a chance that
the patient could be resuscitated? How should we balance between
the pressing need for organs and the off chance that a patient
could recover?
This file is an exploration into the many issues surrounding
different medical definitions of death and the ethical problems
that arise as a result. Rather than separating cards by AFF or NEG,
I have divided this file into different topic areas. Some cards can
be written into a topicality shell; others could be part of a
disad. The function of these cards will obviously change based on
the situationits up to you to decide how to use them. Ambiguity of
DeathNo Singular DefinitionThe idea that there is a singular
definition of death is an accident of historyour language
surrounding death evolved only because technologies that exist now
were not possible in the past.Alan Shewmon 04, [UCLA Medical
Center], "The Dead Donor Rule: Lessons from Linguistics," Kennedy
institute of Ethics Journal, Volume 14, Number 3, September 2004
(pp 277-300).The dynamic interaction between language and thought
goes much deeper than merely focusing attention by naming. What if
the assumption that there must be a clear, unitary, objective,
correct concept of death is derived not so much from intellectual
insight as from an accident of the language we think in: the
singularity of the word death? What if our very lexicon is a setup
for the interminable and seemingly unresolvable debates about the
nature and determination of death, as well as for the incoherent
thinking about death that abounds among not only the general public
but health professionals as well? Most languages contain a
single-word equivalent to the English death, suggesting that there
is indeed a corresponding singular concept universally understood
across societies down through history. This makes sense, because up
until the very recent advent of life support in developed
countries, the set of candidate death events was fairly
limitedfinal breath, decapitation. . . . Moreover, nothing critical
hinged on the exact timing of deathso long as it had surely
occurred prior to burial. But modern developed countries now find
themselves with death situations unknown and inconceivable
throughout the millennia during which languages developed.
Therefore, just because one grew up learning to speak and think
with the one word death, it does not follow that one also must
think with the same singular concept in the context of modern ICUs.
(Neither does the new context necessarily imply that one should not
think in terms of a singular death concept; it simply raises the
question, which I believe is answered in the course of this
paper.)Language surrounding death varies from culture to culture.
Alan Shewmon 04, [UCLA Medical Center], "The Dead Donor Rule:
Lessons from Linguistics," Kennedy institute of Ethics Journal,
Volume 14, Number 3, September 2004 (pp 277-300).Some languages
have no equivalent for the English word death. For example, in the
Kovai language of Papua New Guinea, the verb um means to die, but
the noun formed from it, umong, means not only death but also mere
sickness (not necessarily fatal). There is no other obvious word
for death or sickness. This may be quite common in Papua New
Guinean languages (personal communication, Michael Johnstone, Cam-
bridge University). In Tok Pisin, English-based creole of Papua New
Guinea, he dies/is dead is rendered em i dai, which can also mean
he is unconscious. To indicate what we call death they add an
aspectual qualifier: em i dai pinis, which also can mean something
like he is al- ready dead and which is not available for the future
tense, or dai olgeta (die altogether) (personal communication, Eva
Lindstrom, Linguistics, Stockholm University). These peoples very
language seems to reflect a world-view in which the demarcation
between life and death lies more in the direction of life than we
tend to think. A similar thing occurs in Quechua: My sister-in-law
is dying! This, in Quichua, may mean anything from a headache to a
snakebite. If one is in excellent health, he is living. Other-
wise, he is dying. (Elliot 1957, pp. 4243) Such a linguistic
difference reflects a profound difference in world-view, in which
death is viewed not as the end of life but as a kind of extreme of
illness, after which the spirits of the dead continue to live
(physically) in a different place, eating, sleeping, working, and
so forth, from whence they may return periodically to speak about
their present life to family mem- bers in dreams.There is no
universally true definition of death.Alan Shewmon 04, [UCLA Medical
Center], "The Dead Donor Rule: Lessons from Linguistics," Kennedy
institute of Ethics Journal, Volume 14, Number 3, September 2004
(pp 277-300).We should abandon the search for criteria for the
universally true moment of death, as there is no single,
context-independent, true mo- ment of death. Rather, there are
various moments of state discontinuity, not all of which
necessarily occur in a given case, and not all of which are equally
striking to the senses and intellect of an observer. All of these
state discontinuities are equally real and valid phenomena in
themselves, and there is no a priori reason that one of them must
be singled out for the designation death while the others slip into
conceptual obscurity for want of a word. Once we recognize the
restrictions that our language tends to impose on our ways of
thinking about death, we can attempt to transcend them through
expanding the vocabulary to correspond to the more enlightened
understanding. We could invent words for E1, E2, and so forth, that
would be distinct enough not to create a false impression that they
were all spe- cies of the same conceptual genus death, but simply
different moments of state discontinuity resulting from changes in
observable parameters along the continuous process known as dying
and decaying.We should not think of death as a moment that
demarcates when organ procurement is permissible. Alan Shewmon 04,
[UCLA Medical Center], "The Dead Donor Rule: Lessons from
Linguistics," Kennedy institute of Ethics Journal, Volume 14,
Number 3, September 2004 (pp 277-300).Society traditionally has
assumed a univocal notion of death, in large part because until
very recently in human history there was no need for a more nuanced
notion. Thus, our language developed with only a single word for
death, namely, death and its relatives dead, to die, and the like,
euphemisms excluded. What served humankind well linguisti- cally
for most of history now tends to restrict thinking when applied to
situations uniquely occasioned by modern medicine. It is time to
expand our death vocabulary to facilitate the recognition of
multiple events, all equally real, along the process from declining
health to decomposition. Depending on the context, some of these
death-related events may constitute a more obvious discontinuity
than others and may more justifiably be considered death within
that context. It also may be more appropriate emotionally and/or
morally to begin certain kinds of death behavior at one of these
moments and not others, depending on the clinical context and the
behavior in question. There is no reason to assume a priori that
there must be an overarching, unitary conception of death from
which all diagnostic criteria and tests must derive. Regarding
organ transplantation, the important and truly meaningful question
is not When is the patient dead? but rather When can organs X, Y, Z
. . . be removed without causing or hastening death or harming the
patient in any way? Perhaps some of the general publics confusion
and incoherence surrounding the DDR, as revealed by the Siminoff,
Burant, and Youngner survey, results from a mismatch between
peoples intuitive understanding of death in the era of modern
medicine and the limited lexicon that our colloquial language
imposes on us for articulating that intuitive
understanding.RelativityDeath is ambiguous and culturally
relative.Elysa R. Koppelman 03, [Oakland University], "The Dead
Donor Rule and the Concept of Death: Severing the Ties that Bind
Them," The American Journal of Bioethics, 3:1, Winter 2003,
1-9.Veatch and Charo both believe that death is an ambiguous
concept because it is not a purely bio- logical concept. Death is a
social, normative is- sue that is inuenced by religion,
metaphysics, and values (Veatch 1999); it is a concept that is
intimately tied with social or political goals (Charo 1999). Death
has moral, religious, and political connotations making its
extension something not purely empirical, but laden with feelings,
values, and beliefs. Because of this belief about the nature of
death, these theorists claim that a single mo- ment is insufcient
to justify all social and moral concerns that seem to be connected
with death for all people. Both theorists share the intuition that
lies behind the dd rule, claiming that we need mo- ments of death,
both socially and psychologically, but they argue that these
moments differ among individuals and cultures.Legal FictionsEven if
death is ambiguous, we can still create legal fictions about death
in the realm of public policy. Elysa R. Koppelman 03, [Oakland
University], "The Dead Donor Rule and the Concept of Death:
Severing the Ties that Bind Them," The American Journal of
Bioethics, 3:1, Winter 2003, 1-9.Charo argues that for public
policy it seems far easier to recognize and then disregard the
ambiguity of death than to embrace it. She questions whether the
general public can handle the ambiguity and subtle nuances needed
to make personal decisions about the meaning of death. Public
acceptance, she writes, is far easier to gain by urging people to
focus on a single, simple, seemingly self- evident truth. What the
public needs are simple rules that are accessible to common sense
and common experience. The public has accepted legal fictions in
the past, Charo points out, because their acceptance resolves moral
or social problems in a way that exemplifies presumptions about the
hierarchy of values to be upheld in any particular situation in
which they are implicated. The same approach might work for public
policy surrounding death. Given the difficulties in reaching
consensus on a medical definition of death, law can be used to
create fictions. For example, we have accepted the legal fiction of
considering persons who have been missing for a certain amount of
years as dead. Although the real status of the missing person is
unknown, we have agreed to accept a set of somewhat arbitrary facts
as grounds for acting as if the person is dead. We deem it
reasonable to act this way in agreed-upon circumstances in part
because doing so allows us to uphold certain values we believe to
be important. Likewise, Charo argues, we might get the public to
agree that patients in PVS can be considered dead for the purpose
of resolving marital concerns. This is because some values that
marriage refects are not being met if one partner is in PVS, and
the public believes that these values are important enough to
outweigh any rights the PVS patient might have in this area.Legal
determinations of death should be context-specific.Elysa R.
Koppelman 03, [Oakland University], "The Dead Donor Rule and the
Concept of Death: Severing the Ties that Bind Them," The American
Journal of Bioethics, 3:1, Winter 2003, 1-9.Determinations of death
seem to be connected to many moral and social acts. But since there
is no consensus about death for all moral and social acts, Charo
suggests that we accept a different point for each moral and social
act that depends on death as a legal fiction and that we do so in
the name of up- holding important social values. Each {the} point
at which we consider a patient dead for a particular purpose needs
to be easily accepted and understood by the public.AT Legal
FictionsThere is no way to generate consensus on a legal fiction
about death as it relates to organ procurement. Elysa R. Koppelman
03, [Oakland University], "The Dead Donor Rule and the Concept of
Death: Severing the Ties that Bind Them," The American Journal of
Bioethics, 3:1, Winter 2003, 1-9.The problem with the legal concept
of brain death is that there is no consensus on the state of
affairs under which it would be reasonable to act as if the person
were dead for certain purposes, such as removing organs or
withdrawing life support. There is no common-sense reality; there
is no com- mon experience. We cannot get the public to fo- cus on a
single, simple, self-evident truth, because there are too many
alternative ontological and moral commitmentscommitments that carry
with them strong emotions because they are often tied intimately to
ones identity or worldview. And it seems consensus is unlikely
given the social, po- litical, and normative nature of the concept
of death. Legal ctions might be a good idea in some cases, but it
is unlikely that they will work here. Recognizing and then
disregarding the ambiguity of death simply has not been successful.
So how can advocates of the dd rule respond to the fact that brain
death has not been completely accepted by the public as a legal
ction? The contrary approachesdiscarding and em- bracing
ambiguityare reected in a discussion on the Critical Care
Medicine-Listserv (CCM-L)1 concerning how to approach the parents
of a brain- dead child about organ donation. Should you A. tell
parents that their child is dead and that the organs are being kept
functioning by articial means; or B. tell the parents that their
child is brain-dead and then explain what that means? Aviel
Roy-Shapira, who posted this question, wrote that arguments for A
focused on the claim that the message of death should be
unambiguous (that is, the ambiguity should be downplayed or masked)
and that arguments for B. emphasized that the ambiguity cannot be
masked, that the family cannot believe a direct statement of death,
seeing their beloved all rosy, with a regular heart rate on the
monitor.New definitions of death are motivated by an interest in
procuring organs. George Khushf 10, [University of South Carolina],
"A Matter of Respect: A Defense of the Dead Donor Rule and of a
"Whole-Brain" Criterion for Determination of Death," Journal of
Medicine and Philosophy, 35, 330-364, 2010.I will argue that it is
exactly in this sense that organ donation plays a role in the
refinement of death concepts. (The same could also be said for the
relevance of other high-technology medical practicessuch as the
termina- tion of high cost, resource, and labor intensive carefor
the development of new criteria for determination of death. For the
sake of simplicity, I will just focus on the questions related to
organ donation.) Two things jointly moti- vate and inform the
development of more precise criteria for determination of death:
(a) the costs of being too conservative and (b) the potential
masking effect of technologies used to sustain life. We can thus
concede that an interest in harvesting organs (along with some
other interests) partly motivates and informs the development of
new neurological criteria for determining death. This fact, by
itself, is very inter- esting. Death is obviously a pervasive human
phenomenon. each person in her own turn must face it. And death
must be faced not just in the final mo- ments of life, but
throughout life. For each of us, an awareness of our own impending
death provides a horizon and limit for what we might accomplish
during our brief stay on earth. The wisdom of the great
philosophical and religious traditions are all, in some way,
related to how this inescapable da- tum of human existence might
inform our lives and how it might be man- aged. But when we come to
our current debates about death and the criteria of death, these
big questions are largely forgotten, and nearly everything is
framed in a rather narrow medical context. To this extent, the
criteria for determining death are oriented toward medical ends
that are, in the larger human scheme of things, but a tiny,
insignificant consideration (Nozick, 1981, chapter 6).Brain
DeathBrain Death- GenericThe use of brain criteria for determining
death is generally accepted in the United States and abroad.
Michael A. DeVita et al 92., [assistant professor of
anesthesiology/critical care medicine and director of the Surgical
Intensive Care Unit at Montefiore University Hospital, University
of Pittsburgh medical Center], History of Organ Donation by
Patients with Cardiac Death, in Procuring Organs for Transplant:
The Debate over Non-Heart-Beating Cadaver Protocols, Johns Hopkins
University Press, Print, 1992, pp. 24-25. While some debate
continued, the use of brain criteria for determining death grew in
acceptance in the 1970s and 1980s in both the United States and
abroad. Legislative action in the United States (Curran 1989;
Report 1986) and elsewhere (Kaufman et al. 1979) attempted to prove
identification and recruitment of brain dead donors. In Denmark,
Sweden, France, Israel, Italy, and Norway organs can be taken from
all brain dead patients unless the patient had specifically denied
permission (Kaufman et al. 1979). Over the last 18 years,
withdrawal of life support from living patients who have requested,
or whose surrogates have requested, that the support be withdrawn
has been gaining in acceptance in the U.S., and is supported by
case law (In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976); Meisel
1992). This has probably contributed to the acceptance of
discontinuing ventilator support of patients who can be declared
dead using neurologic criteria. Despite objections, neurological
death is generally accepted by the medical community.
Rodriguez-Arias et al 11, David Rodriguez-Arias, [Universidad del
Pais Vasco/EHU], Maxwell J. Smith [University of Toronto], and Neil
M. Lazar [University of Toronto and University Health Network],
"Donation After Circulatory Death: Burying the Dead Donor Rule,"
The American Journal of Bioethics, 11(8), 2011.These problems have
led scholars to support organ re- trieval from brain-dead patients
by way of two main justi- fications. The Presidents Council on
Bioethics has argued for the necessity of a new definition of
death: the cessation of the fundamental vital work of a living
organismthe work of self-preservation, achieved through the
organisms need-driven commerce with the surrounding world (Pres-
idents Council on Bioethics 2008). This alternative has been
acknowledged to be the best available rationale to equate the
destruction of the entire brain to death, but has also been
thoroughly criticized as being a vague, arbitrary, in- consistent
and counterintuitive contortion of semantics intended to save the
neurological standard at all intellec- tual costs (Shewmon 2009,
20). A second justification has been offered by Truog and others,
who have claimed that procuring organs from patients with a severe
brain injury can be performed in a respectful and protective way,
albeit acknowledging that it constitutes an acceptable violation of
the DDR (Truog and Robinson 2003). We explore the impli- cations of
this proposal throughout this article. There are clearly unresolved
issues regarding the determination of death by neurological
criteria in relation to organ procurement. However, organ
procurement from brain-dead patients is widespread and is for the
most part a fairly uncontroversial practice, certainly due to the
fact that neurological death remains a reliable criterion for
estab- lishing a prognosis of irreversibility. Where controversy is
now focused is in cases of donation after circulatory death (Bernat
2010).Whole brain death has near universal legal status. Iltis and
Cherry 10, Ana Smith Iltis [Associate Professor, Center for Health
Care Ethics, Saint Louis University] and Mark J. Cherry [St.
Edward's University], "Death Revisited: Rethinking Death and the
Dead Donor Rule," Journal of Medicine and Philosophy, 35: 223-241,
2010.The conceptualization of whole brain death as death was
further advanced by two significant events in 1981. First, the
national Conference of Commis- sioners on Uniform State laws
(nCCUSl) published the Uniform determina- tion of death Act (UddA).
The UddA (1981) stated that: An individual who has sustained either
(1) irreversible cessation of circulatory and respiratory
functions, or (2) irreversible cessation of all functions of the
entire brain, including the brain stem, is dead. A determination of
death must be made in accordance with accepted medical standards.
Second, the Presidents Com- mission for the Study of ethical
Problems in Medicine and Biomedical and Behavioral research
published a report affirming the findings and recom- mendations of
the harvard Ad hoc Committee published in 1968 regarding a whole
brain definition of death and urging adoption of the UddA
(previously endorsed by the American Medical Association, the
American Bar Association. and the nCCUSl). It was hoped that the
UddA would be adopted in all states so that there would be one
single set of guidelines describing who was dead and how death
could be determined throughout the United States. The failure to
adopt uniform standards for determining death would have
interesting implications, with people who would be deemed dead in
one state being considered very much alive in other states.
eventually, all 50 states recognized neurological criteria for
determining death. Two states, however, have specific laws (new
Jersey) or regulations (new york) in place to accommodate persons
who object to declarations of death grounded in neurological
criteria on religious grounds (such as Ortho- dox Jews; see Olick,
1991; new york, 1987; new Jersey declaration of death Act,
1991).Harvard Committee DefinitionA 1968 Harvard committee defined
death to include cessation of all brain functions.Norman Frost 04,
[Professor of Pediatrics and Bioethics; Director of the Bioethics
Program; and Vice Chair of the Department of Medical History and
Bioethics at the University of Wisconsin-Madison], "Reconsidering
the Dead Donor Rule: Is it Important that organ Donors be Dead?"
Kennedy institute of Ethics Journal 14.3 (2004) 249-260.In 1968, an
ad hoc committee at the Harvard Medical School (Harvard Medical
School Ad Hoc Committee 1968) published a report with the explicit
utilitarian intent of improving the supply of organs for
transplantation (Pernick 1999). To achieve this goal, the committee
reported its conclusions on a strictly medical matter and then made
a policy proposal. The medical conclusion was that they had
identified criteria for reliably ascertaining when all brain
functions had irreversibly ceased and a patient could be considered
to be irreversibly comatose. This condition they called "brain
death." The policy proposal was that this medical conditiondeath of
the brainbe accepted as constituting death of the person and that
laws be enacted to acknowledge this. Implicit in the report was the
assumption thatfor reasons of ethics, law, and public acceptancea
patient should be dead before vital organs were removed. This
assumption has come to be known as "the dead donor [End Page 249]
rule" (Robertson 1998). Since the traditional definition of death,
based on irreversible loss of cardiorespiratory function, had been
undermined by the development of machines that could replace these
functions, a new definition of death was needed.Higher Brain
DefinitionHigher brain advocates believe that death should focus on
the permanent loss of brain function necessary for consciousness or
personal identity. George Khushf 10, [University of South
Carolina], "A Matter of Respect: A Defense of the Dead Donor Rule
and of a "Whole-Brain" Criterion for Determination of Death,"
Journal of Medicine and Philosophy, 35, 330-364, 2010.Generally,
higher brain critics argue that a policy on determining death in
humans should focus on the permanent loss of that brain function
necessary for consciousness or personal identity. here, there are
several variants. Ac- cording to Veatch (1993, 24; also 1988 a,b,
2005), the task of defining death primarily concerns whether
somebody is to be treated as a member in full standing of the human
moral community. he thinks that this concerns whether someone has
integrated functioning of mind and body not whether he/she is a
person. Veatch distinguishes his morally grounded argument from
that of other higher brain advocates like Green and Wikler, who
make death depend on an account of personal identity. Using a brain
switch scenario, Green and Wikler (1980) argue that an individual,
for example, Jones, is not identical with the individual that
person becomes when all con- tinuity of self-awareness is lost.
Jones, whatever kind of entity he is, is es- sentially an entity
with psychological properties. Thus, when brain death strips the
patients body of all its psychological traits, Jones ceases to
exist. (121) Green and Wikler claim that their argument rests on
ontological con- cerns related to personal identity but that these
arguments do not depend on controversial accounts of personhood or
on moral concerns associated with who has full standing in a moral
community (as in the arguments of Veatch). A third, higher brain
argument can be found in Puccetti (1976) and Glover (1977). For
them, death occurs when life no longer has value for the human
whose life is considered. This is morally grounded, but, unlike
Veatchs argu- ment, it depends on a kind of moral factwhether
persons in question could value their own liferather than on more
complex considerations about who deserves full standing as members
of a moral community. De- spite these differences, all advocates of
higher brain definitions share some common assumptions: a
determination of death depends on an individual- oriented or
person-oriented account of what is essential to or a condition of
being human; it then uses loss of higher brain function essential
for individu- ality/personal identity/valuing life as a criterion
and recognizes that tests would then need to be developed to
ascertain when such function is lost. In all cases, determination
of death is emphatically not a purely biological matter.Presidents
Commission DefinitionThe Presidents Commission, which is a model
for the majority of state statutes, recognizes both brain death and
cardiac death. David Cole 92, [associate professor of philosophy in
the Department of Philosophy, University of Minnesota], Statutory
Definitions of Death and the Management of Terminally Ill Patients
Who May Become Organ Donors After Death, in Procuring Organs for
Transplant: The Debate over Non-Heart-Beating Cadaver Protocols,
Johns Hopkins University Press, Print, 1992, p. 70. Third, there
are statutory definitions of death: These stipulate what is to
count as death for legal purposes. A host of states have adopted
new statutory definitions of death. These are revisionary in
various ways; most conspicuously, they embrace brain death. The
statues are much narrower than the concept of death and the
phenomenon of death. Typically they provide a definition of death
that is inapplicable to organisms that lack brains and hearts. The
UPMC protocol occurs against a background of more than 20 years of
discussion of the legal definition of death and proposals for
reform. A central event in that discussion was the publication in
1981 of the report by the Presidents Commission entitled Defining
Death. That report centers around a proposed Uniform Determination
of Death Act: An individual who has sustained either (1)
irreversible cessation of circulatory and respiratory functions, or
(2) irreversible cessation of all functions of the entire brain,
including the brain stem, is dead. A determination of death must be
made in accordance with accepted medical standards. This is the
model for a majority of the state statutes. The widely accepted
Presidents Commission recognizes both cardiopulmonary and
neurological criteria for the same phenomenon of death.George
Khushf 10, [University of South Carolina], "A Matter of Respect: A
Defense of the Dead Donor Rule and of a "Whole-Brain" Criterion for
Determination of Death," Journal of Medicine and Philosophy, 35,
330-364, 2010.In sum, the Presidents Commission assumed that
cardiopulmonary and neurological criteria were different criteria
for the same phenomenon of death. These criteria provided two
windows on the same event. By focus- ing only on the criteria and
not on the higher generality basic concepts, the Commission left
open how explicitly one understands that single phenom- enon of
death. The policy recommendation of the Presidents
Commissionoutlining the second pillarwas rapidly enshrined in law
and clinical practice. Although neither Capron-Kass nor the
Presidents Commission addressed DDr in their writings on the
determination of death, this first pillar arose as the de facto
result of an explicit statute providing the second pillar. Broad
social prohibi- tions against the direct taking of human life were
already in place in all states. since viable organs depended on
perfusion, a consequence of the second pillar was that the new
neurological criteria would provide the basis for determining death
of organ donors.6
AT Brain DeathJapan does not accept the concept of brain death
in organ transplantation. Michael A. DeVita et al 92., [assistant
professor of anesthesiology/critical care medicine and director of
the Surgical Intensive Care Unit at Montefiore University Hospital,
University of Pittsburgh medical Center], History of Organ Donation
by Patients with Cardiac Death, in Procuring Organs for Transplant:
The Debate over Non-Heart-Beating Cadaver Protocols, Johns Hopkins
University Press, Print, 1992, p. 25. The general acceptance of
brain death criteria was not without exception, however. In Japan,
where controversy over organ procurement from a brain dead donor
had broken out more than a decade earlier, as late 1985 surgeons
were indicted on murder charges for the removal of kidneys,
pancreas, and liver from a brain dead woman. Because of lack of
public acceptance of the concept of brain death, cadaver organ
donation in japan comes only from non-heart-beating cadaversthose
pronounced dead by cardiac criteria (Koyama et al. 1989, Fujita et
al. 1989; Kozaki et al. 1991). Brain death legislation drew
considerable opposition. Michael A. DeVita et al. 92, [assistant
professor of anesthesiology/critical care medicine and director of
the Surgical Intensive Care Unit at Montefiore University Hospital,
University of Pittsburgh medical Center], History of Organ Donation
by Patients with Cardiac Death, in Procuring Organs for Transplant:
The Debate over Non-Heart-Beating Cadaver Protocols, Johns Hopkins
University Press, Print, 1992, p. 24. Opposition to brain death
legislation came mainly from individuals in whose view such bills
were manifestations of a movement to withhold medical care and life
support from handicapped persons (Curran 1989). At a meeting in
1971, philosophers and theologians denounced brain death as a crass
expediency, unnecessary, and immoral that was hastily devised by
surgeons (Foster 1076; Perry 1979). They took issue with the
Harvard decision that death of the central nervous system equals
death of the individual. They argued that it was more precise to
say that death of the central nervous system is always followed by
death but in fact is not death. Van Till (1976) argues forcefully
that the Harvard Committee was attempting to declare death to
achieve practical ends, and therefore its conclusions were
unethical and legally unacceptable. Tests to determine brian-death
are inconsistent and inconclusive. Robert D. Truog 97, [Professor
of Medical Ethics, Harvard Medical School], "Is it time to abandon
brain death?" Hastings Center Report 27, no. 1 (1997).Finally,
clinicians have patients who fulfill the tests for brain death
frequently respond to surgical incision at the time of organ
procurement with a significant rise in both heart rate and blood
pressure. This suggests that integrated neurological function at a
supraspinal level may be present in at least some patients
diagnosed as brain-dead. This evidence points to the conclusion
that there is a significant disparity between the standard tests
used to make the diagnosis of brain death and the criterion these
tests are purported to fulfill. Faced with these facts, even
supporters of the current statues acknowledge that the criterion of
"whole-brain" death is only an "approximation."The concept of brain
death is incoherent.Franklin G. Miller 08 [Department of Bioethics
at the National Institutes of Health] and Robert D. Truog
[Professor at Harvard Medical School], Rethinking the ethics of
vital organ donations, Hastings Center Report, Volume 38, Number 6,
November-December 2008, pp. 38-46.We contend that the proposition
that brain death constitutes death of the human being is incoherent
and, therefore, not credible. To be sure, brain death is a valid
diagnosis of irreversible coma. No one who satisfies the criteria
for brain death regains consciousness.3 Contrary, however, to the
Uniform Determination of Death Act developed by a president's
commission in 1981, many patients properly diagnosed as dead under
whole brain death criteria do not have "irreversible cessation of
all functions of the entire brain."4 For example, the brains of
many patients retain a variety of homeostatic functions, from
regulation of temperature to control over salt and water balance.5
James Bernat and colleagues have responded that brain death should
not require the loss of literally all functions of the entire
brain, but only those that preserve the "functioning of the
organism as a whole."6 According to Bernat, the diagnosis of brain
death signifies the loss of those critical brain functions that
maintain the integrity of the body as a living organism.7 The loss
of these functions causes the body to "dis-integrate," leading over
a period of days to cardiac arrest. This deterioration is claimed
to be inevitable, regardless of whether the patient is on life
support.The brain dead are not really dead. Franklin G. Miller 08
[Department of Bioethics at the National Institutes of Health] and
Robert D. Truog [Professor at Harvard Medical School], Rethinking
the ethics of vital organ donations, Hastings Center Report, Volume
38, Number 6, November-December 2008, pp. 38-46.With both
theoretical analysis and empirical data, Alan Shewmon has seriously
challenged Bernat's defense of brain death. Shewmon has shown, for
example, that some patients who fulfill all of the diagnostic
criteria of brain death can "survive" for many years.8 With life
support systems no more complex than home mechanical ventilation,
these patients maintain an array of integrative functions including
circulation, digestion and metabolism of food, excretion of wastes,
hormonal balance, wound healing, growth and sexual maturation, and
even gestation of a fetus. Based on meta-analytic data of brain
dead patients maintained on ventilators for one week or more,
Shewmon argues that the human body does not need the brain to
integrate homeostatic functions, and that integration of these
activities is possible even in the absence of these supposedly
critical brain functions. In sum, patients who fulfill all of the
diagnostic criteria for brain death remain alive in virtually every
sense except for the fact that they have permanently lost the
capacity for consciousness.Brain death is impossible to
determine.Norman Frost 04, [Professor of Pediatrics and Bioethics;
Director of the Bioethics Program; and Vice Chair of the Department
of Medical History and Bioethics at the University of
Wisconsin-Madison], "Reconsidering the Dead Donor Rule: Is it
Important that organ Donors be Dead?" Kennedy institute of Ethics
Journal 14.3 (2004) 249-260.Problems with the medical definition
and ascertainment of "brain death" have long been evident. Many
patients determined to have lost all brain function still maintain
hypothalamic function sufficient to regulate water balance (Lynn
and Cranford 1999), so the "whole brain" in fact has not ceased to
function. Cells continue to function, evidenced by recovery of stem
cells which can be propagated in vitro. And in the real world of
clinical practice, even those who are called upon to make the
determination of when a patient is dead according to these criteria
have a high rate of misunderstanding, confusion, and error. For
example, only 35 percent of physicians and nurses likely to be
involved in organ procurement at a major academic health center
correctly identified the legal and medical criteria for determining
death. Nineteen percent of these clinicians "had a concept of death
that was consistent with . . . (classifying) . . . anencephalics
and patients in a persistent vegetative state as dead" (Youngner et
al. 1989).
AT Harvard Committee DefinitionThe Harvard Committees definition
of death has nothing to do with biological death and is instead an
imposed moral judgment. Robert M. Veatch 04, [Professor of Medical
Ethics, Kennedy Institute of Ethics, Georgetown University],
"Abandon the Dead Donor Rule or Change the Definition of Death?"
Kennedy Institute of Ethics Journal 14.3 (2004) 261-276.As a
graduate student at Harvard interested in medical ethics, I worked
closely with several of the members of the Ad Hoc Committee,
including Henry Beecher, its chair, and Ralph Potter, the
theological ethicist on the committee. None of the members was so
naive as to believe that people with dead brains were dead in the
traditional biological sense of the irreversible loss of bodily
integration. (Some may have made the logical and empirical mistake
of assuming that people with fully dead brains are dead because
they are inevitably soon to experience death in the traditional
biological sense, but some committee members understood that the
predicted loss of this bodily integration in the near future did
not prove that the individual with a dead brain already was dead.1
) Rather, committee members implicitly held that, even though these
people are not dead in the traditional biological sense, they have
lost the moral status of members of the human moral community. They
believed that people with dead brains no longer should be protected
by norms prohibiting homicideeven merciful homicide with the
consent of the one killed. In effect, the committee and its fellow
travelers proposed an entirely new definition of death, one that
assigned the label "death" for social and policy purposes to people
who no longer are seen as having the full moral standing assigned
to other humans. This then new definition of death thus ceased to
have inherent biological meaning, but rather embodied a moral
meaning. The committee members [End Page 267] identified a group of
humans deemed to have undergone a quantum change in moral status
and called them "dead." This signaled that such persons would stand
in a new relation with the moral community. Among the implications
would be that organs that normally preserve life could be removed
without the elaborate moral defense normally necessary to justify a
homicide. Once one is labeled "dead," mere advance approval of the
individual or of a valid surrogate routinely would justify removal
of organs that normally would preserve life. The person with a dead
brain would be treated the way dead people are treated.The Harvard
criteria for death sets incoherent standards. Norman Frost 04,
[Professor of Pediatrics and Bioethics; Director of the Bioethics
Program; and Vice Chair of the Department of Medical History and
Bioethics at the University of Wisconsin-Madison], "Reconsidering
the Dead Donor Rule: Is it Important that organ Donors be Dead?"
Kennedy institute of Ethics Journal 14.3 (2004) 249-260.The other
conclusion of the Harvard reporti.e., that patients who are "brain
dead" are in fact deadalso has been subject to increasing criticism
for two reasons. First, on epistemological grounds, there are many
competing proposals for what constitutes "death," and there is no
objective way of identifying which is the "right" or "correct"
definition (Arnold and Younger 1993; Emanuel 1995; Halevy and Brody
1999). Second, the concept of "brain death" as equivalent to death
of the person is not coherent to substantial numbers of ordinary
citizens. For some, the standard is too high, as they believe a
loved one has died long before the whole brain has ceased to
function. For some, the standard is too low, as it is difficult to
accept that a patient is dead when he appears to be sedated but
otherwise normal, with good color and all other organs functioning
normally, and indistinguishable from many others in the intensive
care unit whose status as "alive" is not in question.Lack of
ConsensusA current lack of consensus exists on the definition of
death and the permissibility of organ procurement from dead
patients. Robert M. Veatch 04, [Professor of Medical Ethics,
Kennedy Institute of Ethics, Georgetown University], "Abandon the
Dead Donor Rule or Change the Definition of Death?" Kennedy
Institute of Ethics Journal 14.3 (2004) 261-276.Laura Siminoff,
Christopher Burant, and Stuart Youngner (2004) have made clear that
substantial confusion and disagreement ex- ists among the citizens
of Ohio over the definition of death and [End Page 261] when organs
for transplant can be procured. The cases presented in their survey
involved (1) a patient who had lost all functions of the entire
brain (Scenario 1: the "brain death" case), (2) an irreversibly
comatose patient on a ventilator with no possibility of recovery of
consciousness (Scenario 2: irreversible coma), and (3) a patient
breathing without mechanical support who had no possibility of
recovery of consciousness (Scenario 3: the PVS case). Responses to
these three cases from more than 1300 Ohio residents show not only
that the respondents apparently often misunderstand the Ohio law
regarding the definition of death and organ procurement, but also
that their moral intuitions appear significantly inconsistent with
that law. A majority was wrong in their belief about whether
someone with a dead brain was legally dead. On the other hand, a
majority was willing to claim that the comatose person was really
dead, and, in spite of enormous publicity about famous patients in
persistent vegetative statesuch as Karen Quinlanbeing alive, a
large minority (34%) considered such a person dead. Youngner and
others have documented how physicians and nurses were similarly
confused and in disagreement about the status of patients with dead
brains or severe brain pathology. In 1989, using a somewhat
different method, he and his colleagues found that only 35 percent
of respondents within the health professions correctly identified
the legal and medical criteria for determining death (Youngner et
al. 1989). The Ohio study by Siminoff and colleagues also shows
that one third of the respondents is willing to donate the organs
of at least some humans considered alive, at least when presented
with a hypothetical scenario. That is, they are willing to condone
killing them to get their organs. They would, in short, be willing
to break the "dead donor rule" (DDR), which holds that one cannot
licitly procure life-prolonging organs from a donor until that
donor is dead. To procure when the organ source is still alive
would kill the donor. It would be a homicide, and even the explicit
permission of the donor does not legally justify a homicide. The
present study thus raises the question of whether a rule that is
near sacrosanct in the transplant community can be supported if
there is such a large minority who reject it. Moreover, Siminoff
and her colleagues also found that a very large percentage (about
95%) were willing to procure life-prolonging organs from legally
living comatose and vegetative patients when they were mistakenly
classified as dead. This represents a second group that would, in
effect, break the DDR because they were mistaken about classifying
legally living patients as deceased. [End Page 262] The apparent
confusion among lay people and health professionals over the
definition of death and the DDR raises provocative questions not
only for clinicians and policymakers, but also for theoreticians
who have analyzed the definition of death and placed substantial
weight on the DDR (Arnold and Youngner 1993). Recent scholarship
has called that rule into question (see Koppelman 2003 and fifteen
accompanying commentaries on the subject).
Brain Dead DonorsBrain-dead patients were a main source of
transplantable organs before the institution of brain death
laws.Robert M. Arnold et al 92, [associate professor of medicine in
the Division of General Internal Medicine and associate director
for education at the Center of Medical Ethics, University of
Pittsburgh Medical Center], Back to the Future: Obtaining Organs
from Non-Heart-Beating Cadaver Donors, in Procuring Organs for
Transplant: The Debate over Non-Heart-Beating Cadaver Protocols,
Johns Hopkins University Press, Print, 1992. If organ
transplantation is going to continue to flourish, alternative
sources of organs must be found. Patients who have been declared
dead by cardiopulmonary criteria, rather than brain-oriented
criteria, are another potential sources of transplantable organs.
These patients are referred to as non-heart-beating cadaver donors
(NHBCDs) because their hearts are no longer beating at the time of
organ procurement. Prior to the institution of brain death laws,
NHBCDs were the main source (along with living, related donors) of
organs for transplantation. This method fell into disfavor
following the advent of brain death legislation because, in
contrast to HBCDs, the organs of NHBCDs are not perfused up to the
time of procurement. Between the time the patient diesi.e., when
the heart stopsand the organs are procured, the organs suffer
damage, often irreparable, because of the lack of blood flow, this
damage is called warm ischemia. Conflicts of InterestProcuring
organs from brain-dead patients generates ethical problems for the
doctor who must decide whether to withdraw life support. Byers W.
Shaw 92, [professor of surgery and chief of transplantation,
Department of Surgery, University of Nebraska Medical Center],
Conflict of Interest in the Procurement of Organs from Cadavers
Following Withdrawal of Life Support, in Procuring Organs for
Transplant: The Debate over Non-Heart-Beating Cadaver Protocols,
Johns Hopkins University Press, Print, 1992, p 105.The first time
that the issue of conflict of interest arises is not in
contemplating withdrawal of care, but in judging that the
prospective donors condition is hopeless. For instance, imagine
that the intensivist who has grown weary of the prolonged and, to
his view, agonizing deaths of so many patients with so many
horrible diseases. This physician may find more hope in the
life-saving opportunity provided by organ transplantation. If the
person in need of organ transplantation is younger, more
attractive, or in some way seems more deserving than another
critically ill patient, then the conclusion that one patients
condition is hopeless can be tainted by an understanding of the
tremendous hope organ availability holds for another. To carry the
example further, once our intensivist (or other responsible
physician) has decided that a patients condition is hopeless, he
has to work through exactly which measures can be withdrawn without
causing suffering. For example, the physician often must decide
whether removing the ventilator from a ventilator-dependent patient
will cause the patient to suffer. It will lead to death by hypoxia
or hypercarbia, and the obvious concern is that if the patient can
feel the symptoms of either of these syndromes, substantial
suffering, even terror, can result. Physicians may administer drugs
that decrease comatose patients viability for transplantation, thus
prolonging suffering. Byers W. Shaw 92, [professor of surgery and
chief of transplantation, Department of Surgery, University of
Nebraska Medical Center], Conflict of Interest in the Procurement
of Organs from Cadavers Following Withdrawal of Life Support, in
Procuring Organs for Transplant: The Debate over Non-Heart-Beating
Cadaver Protocols, Johns Hopkins University Press, Print, 1992, p
106.We should pause to recognize the potential existence of another
conflict of interest that could also be harmful to the patient from
whom treatment is withdrawn. If the physician in charge of the
withdrawal of treatment harbors negative feelings toward organ
donation or transplantation, he may administer drugs in a manner
that decreases their viability for transplantation. For example,
one could prolong the period of hypotension and acidosis by
occasional reduction in the doses of sedatives or the judicious use
of sodium bicarbonate to counteract acidosis. Such measures might
seem justifiable if intended to prevent sedation from leading
directly to the patients death. What might on the surface be viewed
as entirely proper may have its roots in a deeply felt desire to
prevent the use of the organs for transplantation. The more
disturbing aspect of this misdirected approach, however, is that it
might prolong the critically ill patients suffering, to say nothing
of making a spectacle of the entire proceedings.
Cardiac DeathCardiopulmonary Criterion of DeathDeath should be
defined as a purely biological concept in cardiopulmonary function
is the sole criterion. George Khushf 10, [University of South
Carolina], "A Matter of Respect: A Defense of the Dead Donor Rule
and of a "Whole-Brain" Criterion for Determination of Death,"
Journal of Medicine and Philosophy, 35, 330-364, 2010.The second
strand of criticism comes from those who advance a nonbrain
criterion or, more positively stated, who advance cardiopulmonary
function as the sole criterion. At the time of the Presidents
Commission (413), this position was regarded as the traditional or
romantic concept (Veatch, 2009, 17) of those who did not
sufficiently appreciate how technology alters the context for
determining death. Today, however, it is often advanced as the
hard-nosed purely biological option (Truog, 1997, 2000, 2007;
shewmon, 2001, 2009). here, I will take robert Truog as
representative. For him, death is a purely biological concept, and
it occurs when the organism ceases to function as a whole. But
Truog denies any privileged role for the brain as an organ of
integration. he thinks that humans can continue to live even after
all brain function is lost. Cardiopulmonary function should then
serve as the sole criterion, and batteries of tests should be
oriented toward ascertaining when such functioning is lost. since
this determination of death would push death past the threshold
where most organs are viable, Truog rejects DDr. he argues that a
genuinely biological death concept makes clear that an- other basis
is needed for determining when organs can be harvested (Truog and
robinson, 2003; Truog and Miller, 2008).Irreversibility
RequirementCardiac death requires irreversibility of loss of
circulatory function, but current medical protocol involves
declaring individuals dead even when their vital functions could be
reversed. Rodriguez-Arias et al 11, David Rodriguez-Arias,
[Universidad del Pais Vasco/EHU], Maxwell J. Smith [University of
Toronto], and Neil M. Lazar [University of Toronto and University
Health Network], "Donation After Circulatory Death: Burying the
Dead Donor Rule," The American Journal of Bioethics, 11(8),
2011.The patient is not dead at the moment of organ retrieval
because the time of circulatory arrest is too short to ensure that
cardiac arrest is irreversible. Although this argument is based on
an empirical claim regarding the necessary and sufficient time to
guarantee that the loss of circulatory function is irreversible,
the meaning of irreversible is problematic. While the dictio- nary
definition of irreversible refers to some process that is not able
to be undone or altered (Oxford Dictionaries), controlled DCD
protocols have embraced a weaker con- strual of irreversible, i.e.,
permanent cessation. As we see, according to this weaker construal,
individuals can be declared dead at times where their vital
functions could still be reversed. Some have raised the suspicion
that the moti- vation to abandon the standard conception of
irreversibility in controlled DCD is that the amount of time
necessary to prove such irreversibility would be sufficiently long
so to damage significantly the other organs [other than the heart],
thus making them less useful for transplantation purposes (Menikoff
1998, 158). Downie and colleagues interpreted the term irreversible
even further, as will not be reversed without violating the
patients decision or the law on con- sent (Downie et al. 2009,
858). However, this interpretation contradicts the idea that
irreversible is a condition that does not depend on contingencies
such as availability of technical resources or human decisions and
conventions.Cardiac Death Without Brain Death Defining death
through cessation of cardiac activity is problematic because that
does not necessarily mean cessation of brain
activity.Rodriguez-Arias et al 11, David Rodriguez-Arias,
[Universidad del Pais Vasco/EHU], Maxwell J. Smith [University of
Toronto], and Neil M. Lazar [University of Toronto and University
Health Network], "Donation After Circulatory Death: Burying the
Dead Donor Rule," The American Journal of Bioethics, 11(8),
2011.The patient is not dead at the moment of organ retrieval
because brain death is not rigorously demonstrated and can only be
assumed in DCD. Another substantial problem is the possibility that
a DCD donor could be declared dead even though that per- sons brain
may conserve the potential for functioning to some extent. This
concern raises the question of the rela- tionship between brain
death and circulatory death. In fact, the standard tests used for
the determination of brain death are not used in either controlled
DCD or uncontrolled DCD. Only a clinical evaluation, without
confirmatory tests, is legally required (Institute of Medicine
1999). It has been questioned whether the waiting periods in
existing pro- tocols are enough to ensure total brain failurethat
the functions of the entire brain are irreversibly lostespecially
as DCD may occur in the absence of a prior brain injury (Menikoff
1998). In both DCD protocols, the assumption is that, in the period
between cessation of circulatory function and the determination of
death, loss of all brain function has also become irreversible
(Capron 1999). Advocates of DCD thus claim that those protocols do
not violate the DDR be- cause loss of circulation quickly results
in irreversible loss of brain function if no attempt to restore
cardiac activity is undertaken (Bernat 2010).AT Cardiac Death-
GenericThe concept of cardiac death does not square with current
medical protocol. Miller and Truog 08, Franklin G. Miller
[Department of Bioethics at the National Institutes of Health] and
Robert D. Truog [Professor at Harvard Medical School], Rethinking
the ethics of vital organ donations, Hastings Center Report, Volume
38, Number 6, November-December 2008, pp. 38-46.The practice of
organ donation after cardiac death (DCD)developed in the early
1990s to retrieve organs from dying, hospitalized patients after
withdrawal of life supportalso depends on an incoherent
determination of death. Under DCD protocols, death is declared
typically within two to five minutes of the observed cessation of
circulatory function.9 At this point, however, the cessation of
circulatory function is not irreversible and thus does not satisfy
the standard cardiopulmonary criteria for death. Describing the
Pittsburgh protocol for DCD, Robert Arnold and Stuart Younger have
stated, "the heart could almost certainly be restarted by medical
intervention."10 But as Dan Brock has observed, "The common sense
understanding of the irreversibility of death is that it is not
possible to restore the life or life functions of the individual,
not that they will not in fact be restored only because no attempt
will be made to do so."11 The dubious declaration of death is
needed to square DCD with the dead donor rule.