Phase Three The Continuing Points of Debate

As a practical matter, the law nearly everywhere (most recently including Japan) (Akabayashi) recognizes that death may be diagnosed based upon the determination that the brain as a whole has ceased functioning. In the United States, this consensus is embodied in the UDDA, which has therefore become the focus of criticism from certain people— principally some philosophers, but also physicians and lawyers—who are not comfortable with this consensus. Their objections can be summarized in three challenges to the UDDA.

WHOLE-BRAIN VERSUS HIGHER-BRAIN DEATH. The strongest position against the UDDA is mounted by those who would substitute for its "whole brain" standard a "higher brain" standard. Many philosophers have argued that certain features of consciousness (or at least the potential for consciousness) are essential to being a person as distinct from merely a human being (Veatch; Zaner). The absence of consciousness and cognition—as occurs, for example, in patients in the permanent vegetative state (PVS)—thus results in the loss of personhood. A related argument rests on the ontological proposition that the meaning of being a person—that is, a particular individual—is to have a personal identity, which depends on continuity of personal history as well as on self-awareness. The permanent loss of consciousness destroys such identity and hence means the death of that person, even if the body persists.

Consideration of the implications of these theories for determination of death takes several forms. On a conceptual level, the specific characteristics deemed by philosophers to be essential for personhood have varied widely from John Locke's focus on self-awareness to Immanuel Kant's requirement of a capacity for rational moral agency (Lizza). Thus, while certain definitions would exclude only those who lack any capacity for self-knowledge, such as PVS (persistent vegetative state) patients, other conceptions would encompass senile or severely retarded patients who cannot synthesize experience or act on moral principles.

On a practical level, trying to base a definition of death on cessation of higher-brain functions creates at least two problems. The first is the absence of agreed-upon clinical tests for cessation of these functions. Although certain clinical conditions such as PVS that involve the loss of neocortical functioning when brainstem functions persist can be determined sufficiently reliably for prognostic purposes (such as when deciding that further treatment is no longer in the best interests of a dying patient), the greater complexity and uncertainty that remain prevent testing with the same degree of accuracy as with the whole-brain standards. The practical problems increase enormously if the higher-brain definition is grounded on loss of personhood or personal identity, because loss of such a characteristic is not associated with particular neurologic structures.

More fundamentally, patients who are found to have lost (or never to have had) personhood because they lack higher-brain functions, or because they no longer have the same personal identity, will still be breathing spontaneously if they do not also meet whole-brain standards such as those of the UDDA. While such entities may no longer be "persons," they are still living bodies as "living" is generally understood and commonly used. "Death can be applied directly only to biological organisms and not to persons" (Culver and Gert, p. 183). To regard a human being who lacks only cerebral functions as dead would lead either to burying spontaneously respiring bodies or to having first to take affirmative steps, such as those used in active euthanasia, to end breathing, circulation, and the like. Neither of these would comport with the practices or beliefs of most people despite widespread agreement that such bodies, especially those that have permanently lost consciousness, lack distinctive human characteristics and need not be sustained through further medical interventions. Perhaps for this reason, in proposing a statute that would base death on cessation of cerebral functions, Robert Veatch condones allowing persons, while still competent, or their next of kin to opt out of having their death determined on the higherbrain standard. No state has adopted a "conscience clause" of this type, and the New Jersey statute mentioned above does not endorse the higher-brain standard (Olick).

The major legal evaluation of the higher-brain standard has arisen in the context of infant organ transplantation because of several highly publicized attempts in the 1980s to transplant organs from anencephalic infants (babies born without a neocortex and with the tops of their skulls open, exposing the underlying tissue). In 1987-1988, Loma Linda Medical Center in California mounted a protocol (a formal plan for conducting research) to obtain more organs, particularly hearts, from this source. The protocol took two forms. At first, the anencephalic infants were placed on respirators shortly after birth; but such infants did not lose functions and die within the two-week period the physicians had set, based on historical experience that virtually all anencephalics expire within two weeks of birth. In the second phase of the protocol, the physicians delayed the use of life support until the infants had begun experiencing apnea (cessation of breathing). Yet by the time death could be diagnosed neurologically in these infants, the damage to other organs besides the brain was so great as to render the organs useless. No organs were transplanted under the Loma Linda protocol.

Proposals to modify either the determination of death or the organ-transplant statutes to permit the use of organs from anencephalic infants before they meet the general criteria for death have not been approved by any legislature, nor was the Florida Supreme Court persuaded to change the law in the only appellate case regarding anencephalic organ donation. In that case, the parents of a child prenatally diagnosed with anencephaly requested that she be regarded as dead from the moment of birth so that her organs could be donated without waiting for breathing and heartbeat to cease. The Florida statute limits brain-based determinations of death to patients on artificial support. Turning to the common law, the court held that it established the cardiopulmonary standard, and the court then declined to create a judicial standard of death for anencephalics in the absence of a "public necessity" for doing so or any medical consensus that such a step would be good public policy (T.A.C.P.).

Although the Loma Linda protocol for using anencephalic infants as organ sources attempted to comply with the general consensus on death determination, it also proved that the "slippery slope" is not merely a hypothetical possibility. While the program was ongoing and receiving a great deal of media attention, the neonatologist who ran the pediatric intensive-care unit where potential donors were cared for reported receiving offers from well-meaning physicians of infants with hydrocephalus, intraventricular hemorrhage, and severe congenital anomalies. These physicians found it difficult to accept Loma Linda's rejection of such infants, whom the referring physicians saw as comparable on relevant grounds to the anencephalic infants who had been accepted. Beyond the risk oferror in diagnosing anencephaly, it is hard to draw a line at this one condition, since the salient criteria—absence of higher-brain function and limited life expectancy—apply to other persons as well. The criterion that really moves many people—namely, the gross physical deformity of anencephalic infants' skulls—is without moral significance. Thus, a decision to accept anencephaly as a basis for declaring death would imply acceptance of some perhaps undefined higher-brain standard for diagnosing any and all patients.

CHANGING CLINICAL CRITERIA. Some medical commentators have suggested that society should rethink brain death because studies of bodies determined to be dead on neurological grounds have shown results that fail to accord with the standard of "irreversible loss of all functions of the entire brain" (Truog and Fackler). Specifically, some of these patients still have hypothalamic-endocrine function, cerebral electrical activity, or responsiveness to the environment.

Although the technical aspects of these various findings differ, similar reasoning can be applied to assessing their meaning for the concept of brain death. For each, one must ask first, are such findings observed among patients diagnosed through cardiopulmonary as well as neurological means of diagnosing death? Second, are such findings inconsistent with the irreversible loss of integrative functioning of the organism? Finally, do such findings relate to functions that when lost do not return and are not replaceable?

If some patients diagnosed dead on heart-lung grounds also have hypothalamic-endocrine function, cerebral electrical activity, or environmental responses, then the presence of these findings in neurologically diagnosed patients would not be cause for concern that the clinical criteria for the latter groups are inaccurate, and no redefinition would be needed.

Plainly, in many dead bodies some activity (as opposed to full functions) remains temporarily within parts of the brain. The question then becomes whether the secretion of a particular hormone (such as arginine vasopressin, which stimulates the contraction of capillaries and arterioles) is so physiologically integrative that it must be irreversibly absent for death to be declared. Depending upon the answer, it might be appropriate to add to the tests performed in diagnosing death measurements of arginine vasopressin or other tests and procedures that have meaning and significance consistent with existing criteria.

Such a modest updating of the clinical criteria is all that is required by Truog and Fackler's data and is preferable to the alternative they favor, modifying the conceptual standards to permanent loss of the capacity for consciousness while leaving the existing criteria for the time being. Not only does this change fail to respond to their data that testing can evoke electrical activity in the brain stem, despite the absence of such activity in the neocortex (called electrocerebral silence); it also has all the problems of lack of general acceptability that attach to any standard that would result in declaring patients with spontaneous breathing and heartbeat dead because they are comatose (i.e., deeply unconscious).

THE MEANING OF IRREVERSIBILITY. The final challenge to the UDDA is less an attempt to refute its theory than it is a contradiction of the standards established by the statute and accompanying medical guidelines. Under a protocol developed at the University of Pittsburgh in 1992, patients who are dependent on life-support technology for continued vital functions and who desire to be organ donors are wheeled into the operating room and the life support disconnected, leading to cardiac arrest. After two minutes of asystole (lack of heartbeat), death is declared based upon the "irreversible cessation of circulatory and respiratory functions," at which point blood flow is artificially restored to the organs which are to be removed for transplantation (Youngner et al., 1993). Yet the failure to attempt to restore circulatory and respiratory functions in these patients shows that death had not occurred according to the existing criteria. The requirement of "irreversible cessation" must mean more than simply the physician "chose not to reverse." If no attempt is made to restore circulation and respiration before organs are removed it is not appropriate to make a diagnosis of death— merely a prognosis that death will occur if available means of resuscitation continue not to be used.

The reason for alternative standards for determining death is not because there are two kinds of death. On the contrary, there is one phenomenon that can be viewed through two windows, and the requirement of irreversibility ensures that what is seen is virtually the same thing through both. To replace "irreversible cessation of circulatory and respiratory functions" with "choose not to reverse" contradicts the underlying premise, because in the absence of the irreversibility there is no reason to suppose that brain functions have also permanently ceased.

A different, and more potent, challenge to the irreversibility requirement is posed by the prospect inherent in current research on human stem cells that some time in the future it may be possible to restore brain functions whose loss is at present beyond repair. Should such treatments become a clinical reality, the present standards for determining death will need to be reconsidered because the occurrence of death will in all cases turn on the decision whether or not to attempt repair.

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