Questioning the Higher Brain Formulation

Critics of the higher-brain formulation object that the emphasis on consciousness and person-centered functions of the human being places us on a slippery slope that will eventually lead to a broadening of the definition of death to include those who are severely demented or only marginally or intermittently conscious. They argue further that the adoption of a higher-brain basis for determining death would require us to bury spontaneously respiring (and heart beating) cadavers.

These arguments have little to recommend them. First there is a bright and empirically demonstrable line between those who are in a permanent vegetative state (recall the cases of Karen Quinlan, Paul Brophy, Nancy Cruzan, and others) and those who retain the capacity for higher-brain functioning. The slippery slope worry that we would begin to declare conscious patients dead is unfounded. By contrast the slippery slope objection is telling in relation to the whole-brain-death criterion, which does not in fact measure the death of the brain in its entirety. Whole-brain-death adherents have failed to provide criteria for identifying some brain functions as residual and insignificant, so the opportunity for the unprincipled enlargement of the residual functioning category is ever present.

Finally, for aesthetic reasons as well as reasons of respect, society does not permit certain forms of treatment of the dead. There is no reason to think that a consciousness-based concept of death would lead to the abandonment of long-held understandings of the dignified and appropriate treatment of the body of the deceased person. One would not bury a spontaneously breathing body any more than one would bury a brain-dead body still attached to a respirator. A higher-brain advocate might argue that stopping residual heart and lung function would be as morally appropriate in the case of a permanently unconscious patient as the discontinuation of the ventilator is in the case of a brain-dead patient.

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