The Persistence of the Debate

Why do arguments concerning the definition and criteria of death persist? The debate has been intractable since 1968. One important reason is that the concepts of self and death that inform the various positions in the debate are based on fundamental beliefs and values that suggest that they will remain irreconcilably different. While it is true that persons holding different philosophical/theological/cultural premises may assent to the use of the same criteria for determining death, they may well do so for very different reasons. Because of this, it is reasonable to seek and adopt a broadly acceptable societal standard for the determination of death.

For example, the several materialist views of the self that were examined earlier suggest a consciousness-centered concept of self and death that further recommends a higherbrain formulation of death. But equally, the prevailing Judeo-Christian understandings of the self and death—that of death as the dissociation of consciousness from the body, the end of embodied consciousness—are also compatible with a higher-brain formulation of death.

Some traditions, like Orthodox Judaism, and certain Japanese and Native American perspectives, resist the use of the brain-death criterion because they understand death to be a complete stoppage of the vital functions of the body. The self is not departed until such stoppage has occurred. Such groups will be uncomfortable with the use of the brain-death criterion because it permits the determination of death while vital functions continue. This kind of philosophical/ theological difference in perspective on the human self, intimately linked to a person's religious and cultural identity, raises serious questions about how a pluralistic culture should deal with deeply held differences in designing a policy for the determination of death.

Given that there are a finite number of possible perspectives on the human person and on human death, and given the rootedness of these perspectives in conscientiously held philosophical and religious views and cultural identities, public policy on the determination of death in a complex and diverse culture could well manage to service conscience through the addition of a conscience clause in a determination-of-death statute. Similar to and perhaps in conjunction with a living will, a person could execute a conscience-clause exclusion to the statute's implicit concept of death. For instance, an Orthodox Jew could direct that death be determined using the traditional criteria alone, and also indicate personal preferences concerning the use of life-sustaining treatment such as ventilator support in the situation of brain death.

The fact that a conscience clause would permit some to reject the use of the brain-death criterion need not hinder the law from specifying punishable harms against others on the basis of considerations additional to whether death was caused. The exotic life-sustaining technologies now available have already generated arguments concerning whether the person who causes someone to be brain-dead or the person who turns off the ventilator on that brain-dead patient causes the patient's death.

Life-sustaining technologies as well as the alternative concepts of death underscore the need for more precise legal classifications of punishable harms to persons. Such a classification should recognize permanent loss of consciousness as a harm punishable to the same extent as permanent stoppage of the heart and lungs.

The self can be thought of in a variety of ways: as an entirely material entity, as an essentially mental entity, and as a combined physical/mental duality. In contemporary language, the human being may be thought of as a physical organism, as an embodied consciousness (which we often call person), or as an amalgam of the two. As one examines the definition-of-death debate, one sees that fundamentally different ontological perspectives on the human have been taken.

Once such an ontological perspective on the human being has been chosen, a further decision as to what is essentially significant to the nature of the human being can be made. When a conclusion is reached as to which function is essentially significant to the human being, the potential exists for settling on the criterion (or criteria) for determining death. To the extent that these two steps of philosophical analysis support attention to the brain as the locus of the relevant human functions, views may divide on whether a whole-brain or a higher-brain formulation of death is adopted.

A complex entity that manifests its aliveness in a variety of ways has the potential to engender dispute about the ontological perspective that should be taken toward it, as well as about what is essentially significant to it. Hence, there may be no agreement on the definition of death that should be applied. Instead, the greatest achievement may be to articulate a policy on the determination of death that honors a plurality of philosophical/theological perspectives.

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