There never used to be debate over when someone was dead. If there was no heartbeat, no breathing, and no response to stimulation or resuscitation for a sufficient period of time, it was clear that the death of the person had occurred. However, in 1968, that all changed.
In 1968, the notion of “brain death” was formulated and published by an ad hoc committee of the Harvard Medical School.(1) Two years later in 1970, Kansas became the first state to give legal status to the notion of “brain death.”(2) Over the past three decades, the critically important criterion for declaring death switched from the absence of circulation and breathing to cessation of functioning of the brain.
How did this happen? Why did this happen?
“Brain death” is defined as the “irreversible cessation of all functions of the entire brain, including the brain stem,” according to the Uniform Determination of Death Act.(3)
Creation of this new “brain death” was driven by several factors.
The advent of cardiac life support allowed patients to be resuscitated after, for example, a heart attack or a head injury. While these patients had a beating heart and were able to breathe, tests administered to some would allegedly find no evidence of functioning of the brain. This situation prompted some to theorize that these patients were no longer really alive.(4)
In 1967, widespread attention was drawn to organ donation with Dr. Christiaan Barnard’s heart transplant in South Africa. This gave rise to an intense campaign—which continues today—to encourage organ harvesting/donation. The traditional criterion for declaring death (centered on absence of circulation and respiration), however, stands in the way of obtaining unpaired vital organs such as the heart in good condition for transplantation.
Why? Because it is necessary for the heart to be beating and blood, carrying oxygen, to be pumping in and out of such organs at the time of removal. Therefore, the desire for vital organs for transplantation prompted some to look for new and different criteria to declare death which would allow functioning organs to be removed from the patient.
Thus, “brain death” as a criterion for declaring death was proposed and accepted by many.
Classifying “brain death” as death also was expected to alleviate some of the problems associated with overpopulation in hospital intensive care units. Instead of caring for those who have little or no chance at survival, more resources supposedly could be allocated to those with better prospects at living.(5)
In 1981, a presidential commission issued a report entitled “Defining Death: Medical, Legal, and Ethical Issues in the Determination of Death.” The purpose of this commission was to facilitate uniform “definition of death” laws in all 50 states. After this report, the Uniform Determination of Death Act (UDDA) was recommended—allowing “brain death” to be legally considered death.
Is someone really dead if they have been declared “brain dead”?
People on both sides of the debate admit that “brain death” is flawed in theory and practice. Professor Dan Wikler, a noted ethicist from the University of Wisconsin who served on the presidential commission in the early 1980s, admits today that “brain death” is conceptually flawed.(6) Joining him and others is Robert Truog, who concludes in the January-February 1997 issue of the Hastings Center Report, that despite familiarity and widespread acceptance, “brain death” remains incoherent in theory and confused in practice.(7)
On a practical note, a number of physicians have pointed out that a diagnosis of “brain death” is disturbing because the patients do not “look dead.” Instead, they observe that these patients, aided by a ventilator [which supports but doesn’t breathe for a patient] have spontaneously beating hearts, healthy skin color, warmth, digestion, and metabolism.(8) As a matter of fact, some “brain dead” patients have nourished and eventually given birth to living children via cesarean section.(9)
Why are people taking a second look at “brain death”?
The practice of declaring death based on the “brain death” criterion is flawed.
“Brain death” is perceived by many to be irreversible cessation of functioning of the entire brain. There is at present, however, no reliable way to determine this unless the entire brain has been destroyed; and, this cannot be established without destruction of the circulatory and respiratory systems.(10) While some may use electroencephalograms (EEG) to aid a determination of “brain death,” an EEG can record electrical activity only from the surface of the brain, with little or no information about areas deeper within the brain.(11)
Evidence reveals that many people who fulfill the tests for “brain death” do not have irreversible cessation of functioning of the entire brain. Many of these patients have clear evidence of functioning of the brain at the midbrain and brainstem level and may have a functioning cortex.(12)
For example, studies have shown that many patients (up to 20% in one series) who fulfill the tests for “brain death” continue to show electrical activity on their EEGs.(13) In other cases, deeper electrical activity may be present or may be able to be evoked through bodily or visual stimulation.(14) Clinicians have observed that patients who fulfill tests for “brain death” frequently respond to surgical incision at the time of organ harvesting with a significant rise in both heart rate and blood pressure.(15)
The very concept of “brain death” is flawed.
A key assumption of “brain death” is that the brain is the body’s central, irreplaceable integrating organ, and that irreversible cessation of functioning of the brain represents bodily death. To support this, “brain death” proponents refer to patients who suffer cardiac arrest “within a short period of time” after fulfilling tests for “brain death.”(16)
Prognosis, however, is not diagnosis. Just because such people may be dying, just because their breathing may be supported by a ventilator, or just because their “functioning” cannot now be restored by medicine does not mean they are already dead. Indeed, some patients, once classified as “brain dead,” have survived for extended periods of time. Evidently, bodily unity does not derive solely or even irreplaceably from the brain. More than 30 cases of protracted survival of “brain dead” patients, ranging from one week to 14 years, with half surviving more than eight weeks, have been reported.(17) This prompts the question, “If someone is really ‘dead,’ how can they continue to live for weeks?”
So much uncertainty prompts even more fundamental questions. Rather than confirming the fact of death, is “brain death” instead a utilitarian tool for treating as dead certain people living with serious brain impairment?(18) If society finds it useful to treat such people as dead, should it be surprising that there are proposals to treat other people with so-called “low quality lives” as dead, too?(19)
These issues, and the underlying discomfort of many Americans concerning this newly created criterion for declaring death, have led some physicians and ethicists to call for return to the traditional criterion for declaring death, centered on cessation of circulation and respiration sufficient to confirm destruction of the circulatory and respiratory systems and the entire brain.
To ensure respect for human life and abide by the medical profession’s dictum to “Do no harm,” certainty must outweigh doubt, fact must outweigh fiction.
Death is a manifest reality completely different from life. The intrinsic worth of a human being is not in his/her brain or other bodily part but in the whole person, an organism with spiritual and material dimensions united. Death signifies the separation of this unity, which unity is served by the intercooperation of at least three vital systems—the circulatory and respiratory systems, and the entire brain. Therefore, when making a diagnosis of death, it is imperative that no one be determined or declared dead unless and until there is destruction of at least these three basic unifying systems.(20)
Criteria for declaring death are not something to take lightly. As long as “brain death” continues to be accepted and used as a sole diagnosis for death, some patients will be sent to the grave prematurely.
(1) Journal of the American Medical Association, 1968, Volume 205.
(2) Jones, David Albert, “Nagging Doubts About Brain-Death,” CMQ, February 1995.
(3) See Byrne, Paul, Sean O’Reilly, Paul Quay and Peter Salsich, “Brain Death—The Patient, the Physician, and Society,” Gonzaga Law Review, Vol. 18(3), 1982/83 [published errata appear in Gonzaga Law Review, Vol. 19(3) 1983/84].
(4) Jones, CMQ, February 1995.
(5) Lecture notes, Professor Dan Wikler, University Summer Forum on Medical Ethics, University of Wisconsin-Madison, July 1, 1997.
(7) Truog, Robert, “Is it Time to Abandon Brain Death?” Hastings Center Report, Vol. 27(1), January-February 1997, pages 29-31.
(8) Youngner, Stuart and Elizabeth O’Toole, “Withdrawing Treatment in the Persistent Vegetative State,” Letter to The New England Journal of Medicine, November 17, 1994, pg. 1382.
(9) Youngner and O’Toole, Letter to The New England Journal of Medicine, November 17, 1994, pg. 1382.
(10) Truog, Hastings Center Report, January-February 1997, pg. 30.
(11) Wensley, Germaine, “Considerations Before Signing an Organ Donor Card,” Life Scenes, Journal of California Nurses for Ethical Standards, Vol. 8(4), September 1996, pg. 1.
(12) Truog, Hastings Center Report, January-February 1997, pg. 29.
(13) Ibid. pg. 30.
(14) Jones, CMQ, February 1995.
(15) Truog, Hastings Center Report, January-February 1997, pg. 30.
(16) Ibid. page 30.
(17) Shewmon, Alan, “Recovery from ‘Brain Death’: A Neurologist’s Apologia,” Linacre Quarterly, February 1997, pg. 68; personal communication with Dr. Paul Byrne, March 16, 1998.
(18) See ibid. pg. 77.
(19) See Singer, Peter, Rethinking Life and Death: The Collapse of Our Traditional Ethics, St. Martin’s Press, 1994.
(20) Byrne, Paul, et al., Life, Life Support, and Death: Principles, Guidelines, Policies, and Procedures for Making Decisions That Respect Life, American Life League, 1996.