The Whole-Brain Concept of Death Remains Optimum Public Policy James L. Bernat
he deﬁnition of death is one of the oldest and most enduring problems in biophilosophy and bioethics. Serious controversies over formally deﬁning death began with the invention of the positive-pressure mechanical ventilator in the 1950s. For the ﬁrst time, physicians could maintain ventilation and, hence, circulation on patients who had sustained what had been previously lethal brain damage. Prior to the development of mechanical ventilators, brain injuries severe enough to induce apnea quickly progressed to cardiac arrest from hypoxemia. Before the 1950s, the loss of spontaneous breathing and heartbeat (“vital functions”) were perfect predictors of death because the functioning of the brain and of all other organs ceased rapidly and nearly simultaneously thereafter, producing a unitary death phenomenon. In the pretechnological era, physicians and philosophers did not have to consider whether a human being who had lost certain “vital functions” but had retained others was alive, because such cases were technically impossible. With the advent of mechanical support of ventilation, (permitting maintenance of circulation) the previous unitary determination of death became ambiguous. Now patients were encountered in whom some vital organ functions (brain) had ceased totally and irreversibly, while other vital organ functions (such as ventilation and circulation) could be maintained, albeit mechanically. Their life status was ambiguous and debatable because they had features of both dead and living patients. They resembled dead patients in that they could not move or breathe, were utterly unresponsive to any stimuli, and had lost brain stem reﬂex activity. But they also resembled living patients in that they had maintained heartbeat, circulation and intact visceral organ functioning. Were these unfortunate patients in fact alive or dead? In a series of scientiﬁc articles addressing this unprecedented state, several authors made the bold claim that patients who had totally and irreversibly lost brain functions were dead, despite their continued heartbeat and circulation.1 In the 1960s, they popularized the concept they called “brain death” to acknowledge this idea.2 The intuitive attractiveness of the concept of “brain death” led to its rapid acceptance by the medical and scientiﬁc community, and to legislators expeditiously drafting public laws permitting physicians to determine death on the basis of loss of brain functioning.3 Interestingly, largely by virtue of its intuitive apJames L. Bernat, M.D., is Professor of Medicine (Neurology) at Dartmouth Medical School and Director of the Clinical Ethics Program at Dartmouth-Hitchcock Medical Center. His most recent books are Ethical Issues in Neurology, 2nd ed. (Butterworth-Heinemann, 2002) and Palliative Care in Neurology (Oxford, 2004).
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peal, the academy, medical practitioners, governments, and the public accepted the validity of brain death prior to the development of a rigorous biophilosophical proof that brain dead patients were truly dead. Medical historians have emphasized utilitarian factors in this rapid acceptance, because a determination of brain death permitted the desired societal goals of cessation of medical treatment and organ procurement.4 The practice of determining human death using brain death tests has become worldwide over the past several decades. The practice is enshrined in law in all
philosophical and medical task of determining the best criterion of death, a measurable condition that shows that the deﬁnition has been fulﬁlled by being both necessary and sufﬁcient for death; and (3) the medical-scientiﬁc task of determining the tests of death for physicians to employ at the patient’s bedside to demonstrate that the criterion of death has been fulﬁlled with no false positive and...
References: 1. The early history of “brain death” is discussed in M. S. Pernick, “Brain Death in a Cultural Context: The Reconstruction of Death 1967-1981,” in S. J. Youngner, R. M. Arnold, and R. Schapiro, eds., The Deﬁnition of Death: Contemporary Controversies (Baltimore: Johns Hopkins University Press, 1999): 13-33; and M. N. Diringer and E. F. M. Wijdicks, “Brain Death in Historical Perspective,” in E. F. M. Wijdicks, ed., Brain Death (Philadelphia: Lippincott Williams & Wilkins, 2001): 5-27. Early reports from France de-
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SYMPOSIUM scribed coma dépassé (a state beyond coma). See P. Mollaret and M. Goulon, “Le Coma Dépassé (Mémoire Préliminaire)” Revue Neurologique 101 (1959): 3-15. The Harvard Medical School report was the earliest widely publicized article to claim that such patients were dead. See “A Deﬁnition of Irreversible Coma: Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Deﬁnition of Brain Death,” JAMA 205 (1968): 337-340. 2. “Brain death” is the colloquial term for human death determination using tests of absent brain functions. But it is an unfortunate term because it is inherently misleading. It falsely implies that there are two types of death: brain death and ordinary death, instead of unitary death tested using two sets of tests. It also wrongly suggests that only the brain is dead in such patients. Robert Veatch stated that because of these shortcomings he uses the term only in quotation marks (personal communication November 4, 1995). 3. In 1970, Kansas became the ﬁrst state to enact a death statute incorporating the new concept of brain death, a mere two years after the Harvard Medical School report. See I. M. Kennedy, “The Kansas Statute on Death – An Appraisal,” New England Journal of Medicine 285 (1971): 946-950, at 946. 4. See G. S. Belkin, “Brain Death and the Historical Understanding of Bioethics,” Bulletin of the History of Medical Allied Sciences 58 (2003): 325-361; E. F. M. Wijdicks, “The Neurologist and Harvard Criteria for Brain Death,” Neurology 61 (2003): 970-976; M. Giacomini, “A Change of Heart and a Change of Mind? Technology and the Redeﬁnition of Death in 1968,” Social Science & Medicine 44 (1997): 1465-1482; and M. S. Pernick, supra note 1. 5. In nearly all states, brain death is incorporated into the statute of death. In a few jurisdictions, brain death is permitted in administrative regulations. See H. R. Beresford, “Brain Death,” Neurologic Clinics 17 (1999): 295-306. For international practices of brain death, see E. F. M. Wijdicks, “Brain Death Worldwide: Accepted Fact but No Global Consensus in Diagnostic Criteria,” Neurology 58 (2002): 20-25. 6. S. J. Youngner, R. M. Arnold, and R. Schapiro, eds., The Deﬁnition of Death: Contemporary Controversies (Baltimore: Johns Hopkins University Press, 1999). 7. See, for example, R. D. Truog, “Is it Time to Abandon Brain Death?” Hastings Center Report 27, no. 1 (1997): 29-37; R. M. Taylor, “Reexamining the Deﬁnition and Criterion of Death,” Seminars in Neurology 17 (1997): 265-270; P. A. Byrne, S. O’Reilly, and P. M. Quay, “Brain Death – An Opposing Viewpoint,” JAMA 242 (1979): 1985-1990; and J. Seifert, “Is Brain Death Actually Death? A Critique of Redeﬁnition of Man’s Death in Terms of ‘Brain Death,’” The Monist 76 (1993): 175-202. 8. Alan Shewmon’s recent works on this topic include D. A. Shewmon, “The Brain and Somatic Integration: Insights into the Standard Biological Rationale for Equating ‘Brain Death’ with Death,” Journal of Medicine and Philosophy 26 (2001): 457-478; and D. A. Shewmon, “The ‘Critical Organ’ for the Organism as a Whole: Lessons from the Lowly Spinal Cord,” Advances in Experimental Medicine and Biology 550 (2004): 23-42. Other scholars agreeing with him also published works following his article in the Journal of Medicine and Philosophy. 9. H. K. Beecher, chairman of the landmark 1968 Harvard Medical School Committee report (see note 1), later warned: “Only a very bold man, I think, would attempt to deﬁne death.” See H. K. Beecher, “Deﬁnitions of ‘Life’ and ‘Death’ for Medical Science and Practice,” Annals of the New York Academy of Sciences 169 (1970): 471-474. 10. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deﬁning Death: Medical, Legal and Ethical Issues in the Determination of Death (Washington, DC: U.S. Government Printing Ofﬁce, 1981): at 31-43. 11. J. L. Bernat, C. M. Culver and B. Gert, “On the Deﬁnition and Criterion of Death,” Annals of Internal Medicine 94 (1981): 389394. 12. Alan and Elisabeth Shewmon recently claimed that my approach is futile because language constrains our capacity to conceptualize life and death. They regard death as an “ur-phenomenon” that is “…conceptually fundamental in its class; no more basic concepts exist to which it can be reduced. It can only be intuited from our experience of it…” See D. A. Shewmon and E. S. Shewmon, “The Semiotics of Death and its Medical Implications,” Advances in Experimental Medicine and Biology 550 (2004): 89-114. Winston Chiong also rejected my analytic approach claiming that there can be no uniﬁed deﬁnition of death. Yet, he agreed that the whole-brain criterion of death is the most coherent concept of death. See W. Chiong, “Brain Death Without Deﬁnitions,” Hastings Center Report 35 (2005): 20-30. 13. I have discussed these conditions in greater detail in J. L. Bernat, “The Biophilosophical Basis of Whole-Brain Death,” Social Philosophy & Policy 19, no. 2 (2002): 324-342. 14. Robert Veatch exempliﬁes a scholar who has attempted to redeﬁne death for the purpose of considering patients in persistent vegetative states as dead, despite the fact that all societies consider them alive. See, for example, R. M. Veatch, “The Impending Collapse of the Whole-Brain Deﬁnition of Death,” Hastings Center Report 23, no. 4 (1993): 18-24. Linda Emanuel abstracted death to a clinically unhelpful metaphysical level: “there is no state of death…to say ‘she is dead’ is meaningless because ‘she’ is not compatible with ‘dead.’” See L. L. Emanuel, “Reexamining Death: The Asymptotic Model and a Bounded Zone Deﬁnition,” Hastings Center Report 25, no. 4 (1995): 27-35. 15. For a scholar who argues that the deﬁnition of death is largely a normative social matter, see R. M. Veatch, “The Conscience Clause: How Much Individual Choice in Deﬁning Death Can Our Society Tolerate?” in S. J. Youngner, R. M. Arnold, and R. Schapiro, eds., The Deﬁnition of Death: Contemporary Controversies (Baltimore: Johns Hopkins University Press, 1999): 137-160. 16. In this regard, I disagree with Jeff McMahon that there are two types of death: death of the organism and death of the person. See J. McMahon, “The Metaphysics of Brain Death,” Bioethics 9 (1995): 91-126. 17. A. Halevy and B. Brody, “Brain Death: Reconciling Deﬁnitions, Criteria, and Tests,” Annals of Internal Medicine 119 (1993): 519525. 18. R. S. Morison, “Death: Process or Event?” Science 173 (1971): 694-698 and L. Kass, “Death as an Event: A Commentary on Robert Morison,” Science 173 (1971): 698-702. The Shewmons (see note 12) recently described the process vs. event argument as “tiresome” because, as a consequence of linguistic constraints, death can be understood only as an event. 19. J. L. Bernat, C. M. Culver, and B. Gert, “On the Deﬁnition and Criterion of Death,” Annals of Internal Medicine 94 (1981): 389394. 20. S. Parnia, D. G. Waller, R. Yeates, and P. Fenwick, “A Qualitative and Quantitative Study of the Incidence, Features, and Etiology of Near Death Experiences in Cardiac Arrest Survivors,” Resuscitation 48 (2001): 149-156. 21. R. M. Veatch, “The Whole Brain-Oriented Concept of Death: An Outmoded Philosophical Formulation,” Journal of Thanatology 3 (1975): 13-30; R. M. Veatch, “Brain Death and Slippery Slopes,” Journal of Clinical Ethics 3 (1992): 181-187; and R. M. Veatch, “The Impending Collapse of the Whole-Brain Deﬁnition of Death,” Hastings Center Report 23, no. 4 (1993): 18-24. 22. R. M. Veatch, supra note 21, at 23. 23. See, for example, M. B. Green and D. Wikler, “Brain Death and Personal Identity,” Philosophy and Public Affairs 9 (1980): 105133; S. J. Youngner and E. T. Bartlett, “Human Death and High Technology: The Failure of the Whole Brain Formulation,” Annals of Internal Medicine 99 (1983): 252-258; and K. G. Gervais, Redeﬁning Death (New Haven: Yale University Press, 1986). 24. J. L. Bernat, C. M. Culver, and B. Gert, “On the Deﬁnition and Criterion of Death,” Annals of Internal Medicine 94 (1981): 389394. I later reﬁned the deﬁnition to require only the permanent loss of the critical functions of the organism as a whole, in response to exceptional cases raised, but this is mostly quibbling. See J. L. Bernat, “Reﬁnements in the Deﬁnition and Criterion of Death,” in S. J. Youngner, R. M. Arnold, and R. Schapiro, eds., The Deﬁnition of Death: Contemporary Controversies (Baltimore: Johns Hopkins University Press, 1999): 83-92.
journal of law, medicine & ethics
James L. Bernat 25. J. Loeb, The Organism as a Whole (New York: G. P. Putnam’s Sons, 1916). 26. See, for example, the explanation of emergent functions in M. Mahner and M. Bunge, Foundations of Biophilosophy (Berlin: Springer-Verlag, 1997): at 29-30. 27. J. Korein, “The Problem of Brain Death: Development and History,” Annals of the New York Academy of Sciences 315 (1978): 19-38. For the most recent reﬁnement of Korein’s argument, see J. Korein and C. Machado, “Brain Death: Updating a Valid Concept for 2004,” Advances in Experimental Medicine and Biology 550 (2004): 1-14. 28. I have discussed these three formulations in greater detail in J. L. Bernat, “How Much of the Brain Must Die in Brain Death?” Journal of Clinical Ethics 3 (1992): 21-26. 29. The text of Deﬁning Death makes clear that the President’s Commission found an important distinction between brain clinical functions and brain activities. See President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deﬁning Death: Medical, Legal and Ethical Issues in the Determination of Death (Washington, DC: U.S. Government Printing Ofﬁce, 1981): at 28-29. 30. Residual EEG activity seen on unequivocally brain dead patients has been described by M. M. Grigg, M. A. Kelly, G. G. Celesia, M. W. Ghobrial, and E. R. Ross, “Electroencephalographic Activity after Brain Death,” Archives of Neurology 44 (1987): 948-954. 31. F. Plum and J. B. Posner, The Diagnosis of Stupor and Coma, 3rd ed., (Philadelphia: F. A. Davis, 1980): at 88-101. 32. These are the most common causes of brain death. See D. Staworn, L. Lewison, J. Marks, G. Turner, and D. Levin, “Brain Death in Pediatric Intensive Care Unit Patients: Incidence, Primary Diagnosis, and the Clinical Occurrence of Turner’s Triad,” Critical Care Medicine 22 (1994): 1301-1305. 33. H. C. Kinney and M. A. Samuels, “Neuropathology of the Persistent Vegetative State: A Review,” Journal of Neuropathology and Experimental Neurology 53 (1994): 548-558. 34. Multi-Society Task Force on PVS, “Medical Aspects of the Persistent Vegetative State. Parts I and II,” New England Journal of Medicine 330 (1994): 1499-1508, 1572-1579. 35. Conference of Medical Royal Colleges and their Faculties in the United Kingdom, “Diagnosis of Brain Death,” British Medical Journal 2 (1976): 1187-1188; and C. Pallis, ABC of Brainstem Death (London: British Medical Journal Publishers, 1983). 36. I have provided more extensive arguments with examples to support this claim in J. L. Bernat, “A Defense of the Whole-Brain Concept of Death,” Hastings Center Report 28, no. 2 (1998): 1423 at 18-19. 37. The Quality Standards Subcommittee of the American Academy of Neurology, “Practice Parameters for Determining Brain Death in Adults [Summary Statement],” Neurology 45 (1995): 1012-1014. The tests accepted in various European countries are described and compared in W. F. Haupt and J. Rudolf, “European Brain Death Codes: A Comparison of National Guidelines,” Journal of Neurology 246 (1999): 432-437. 38. The clinical and conﬁrmatory tests for brain death are described in detail in E. F. M. Wijdicks, “The Diagnosis of Brain Death,” New England Journal of Medicine 344 (2001): 1215-1221. 39. See, for example, R. E. Mejia and M. M. Pollack, “Variability in Brain Death Determination Practices in Children,” JAMA 274 (1995): 550-553; and M. Y. Wang, P. Wallace, and J. B. Gruen, “Brain Death Documentation: Analysis and Issues,” Neurosurgery 51 (2002): 731-735. 40. D. A. Shewmon, “Chronic ‘Brain Death’: Meta-analysis and Conceptual Consequences,” Neurology 51 (1998): 1538-1545. 41. E. F. M. Wijdicks and J. L. Bernat, “Chronic ‘Brain Death’: Metaanalysis and Conceptual Consequences,” (letter to the editor) Neurology 53 (1999): 1639-1640. 42. I defend this claim in J. L. Bernat, “On Irreversibility as a Prerequisite for Brain Death Determination,” Advances in Experimental Medicine and Biology 550 (2004): 161-167. 43. This conclusion was reached by Alexander Capron, the former Executive Director of the President’s Commission (see note 10), in A. M. Capron, “Brain Death – Well Settled Yet Still Unresolved,” New England Journal of Medicine 344 (2001): 12441246. 44. E. F. M. Wijdicks, “Brain Death Worldwide: Accepted Fact but No Global Consensus in Diagnostic Criteria,” Neurology 58 (2002): 20-25. 45. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deﬁning Death: Medical, Legal and Ethical Issues in the Determination of Death (Washington, DC: U.S. Government Printing Ofﬁce, 1981): at 72-84. 46. Law Reform Commission of Canada, Criteria for the Determination of Death (Ottawa: Law Reform Commission of Canada, 1981). 47. R. A. Burt, “Where Do We Go from Here?” in S. J. Youngner, R. M. Arnold, and R. Schapiro, eds., The Deﬁnition of Death: Contemporary Controversies (Baltimore: Johns Hopkins University Press, 1999): 332-339. 48. See E. F. M. Wijdicks, supra note 5, at 22-23. 49. In the early brain death era, commentators asserted that brain death was compatible with the world’s principal religions. See F. J. Veith, J. M. Fein, M. D. Tendler, R. M. Veatch, M. A. Kleiman, and G. Kalkines, “Brain Death: I. A Status Report of Medical and Ethical Considerations,” JAMA 238 (1977): 1651-1655. 50. C. S. Campbell, “Fundamentals of Life and Death: Christian Fundamentalism and Medical Science,” in S. J. Youngner, R. M. Arnold, and R. Schapiro, eds., The Deﬁnition of Death: Contemporary Controversies (Baltimore: Johns Hopkins University Press, 1999): 194-209. 51. Some Catholic commentators had long claimed that brain death violated Catholic teachings. See P. A. Byrne, et al., supra note 7. But in August, 2000, in an address to the 18th Congress of the International Transplantation Society meeting in Rome, the Pope asserted that brain death was fully consistent with Catholic doctrine. For a detailed historical discussion of earlier statements on brain death from Vatican academies, an account of the process of Vatican decision making, and an explanation of the Pope’s recent statement, see E. J. Furton, “Brain Death, the Soul, and Organic Life,” The National Catholic Bioethics Quarterly 2 (2002): 455-470. 52. The rabbinic debate is explained in F. Rosner, “The Deﬁnition of Death in Jewish Law,” in S. J. Youngner, R. M. Arnold, and R. Schapiro, eds., The Deﬁnition of Death: Contemporary Controversies (Baltimore: Johns Hopkins University Press, 1999): 210-221. 53. Saudi Arabia represents a conservative interpretation of Islam and brain death is accepted there. See B. A. Yaqub and S. M. Al-Deeb, “Brain Death: Current Status in Saudi Arabia,” Saudi Medical Journal 17 (1996): 5-10. 54. S. Jain and M. C. Maheshawari, “Brain Death – The Indian Perspective,” in C. Machado, ed., Brain Death (Amsterdam: Elsevier, 1995): 261-263. 55. M. Lock, “Contesting the Natural in Japan: Moral Dilemmas and Technologies of Dying,” Culture, Medicine and Psychiatry 19 (1995): 1-38. 56. See Shewmon, supra note 8. 57. See Shewmon, supra note 40. 58. R. M. Taylor, “Re-examining the Deﬁnition and Criterion of Death,” Seminars in Neurology 17 (1997): 265-270. 59. I made this point in a review of a pre-publication draft of the Institute of Medicine report. See, Institute of Medicine, NonHeart-Beating Organ Transplantation: Practice and Protocols (Washington DC: National Academy Press, 2000): at 22-24. The same point was made in reference to an earlier publication of the Institute of Medicine in J. Menikoff, “Doubts about Death: The Silence of the Institute of Medicine,” Journal of Law, Medicine & Ethics 26 (1998): 157-165.
defining the beginning and the end of human life • spring 2006
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