Defining Death

The Case for Choice

Robert M. Veatch, Lainie F. Ross

• Publisher: Georgetown University Press
• Year: 2016
• ISBN:
  9781626163560
• Topic: Medicine
• Subtopic: Ethics in Medicine

New technologies and medical treatments have complicated questions such as how to determine the moment when someone has died. The result is a failure to establish consensus on the definition of death and the criteria by which the moment of death is determined. This creates confusion and disagreement not only among medical, legal, and insurance professionals but also within families faced with difficult decisions concerning their loved ones.

Distinguished bioethicists Robert M. Veatch and Lainie F. Ross argue that the definition of death is not a scientific question but a social one rooted in religious, philosophical, and social beliefs. Drawing on history and recent court cases, the authors detail three potential definitions of death — the whole-brain concept; the circulatory, or somatic, concept; and the higher-brain concept. Because no one definition of death commands majority support, it creates a major public policy problem. The authors cede that society needs a default definition to proceed in certain cases, like those involving organ transplantation. But they also argue the decision-making process must give individuals the space to choose among plausible definitions of death according to personal beliefs.

Taken in part from the authors' latest edition of their groundbreaking work on transplantation ethics, Defining Death is an indispensable guide for professionals in medicine, law, insurance, public policy, theology, and philosophy as well as lay people trying to decide when they want to be treated as dead.

1
Defining Death: An Introduction

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There was a day when everyone could tell the difference between the living and the dead. Over the past fifty years, that has changed. Of course, occasional mistakes in pronouncing death have always occurred—when a physician could not feel a pulse and pronounced a patient dead only to have the heart start again. Occasionally, the patient recovered enough to survive and leave the hospital. The physician might have said something like, “I thought the patient had died, but I was mistaken.” Sometimes the one making the statement might say something a bit different. He or she might say, “The patient died and came back to life.” Thoughtful commentators have always understood that this is not correct. There is one death per person, at least in this world. The more accurate observation would be something like, “The patient suffered a cardiac arrest that we thought was irreversible, but obviously it was not. He would have died had not the heart started beating again.” The difference is critical because many important clinical, social, legal, and personal issues are at stake when we pronounce someone dead. The spouse becomes a widow; the person’s assets are disposed of; health insurance coverage stops (health insurance does not cover dead people). On the other hand, life insurance pays off; the will is executed; if the deceased is president of a country, he or she ceases to be president, and a successor assumes the office. In medicine important implications follow as well. Not only does medical treatment to preserve life cease, but organs can be procured.

The Emergence of the Controversy

Until about the middle of the twentieth century, this all seemed straightforward. The doctor (or even a layperson) could feel the pulse, listen for the heartbeat, or in the classic movie scene, place a mirror to the nostrils to see if the person was breathing and, on this basis, decide whether someone was dead or alive. We knew that in some special cases, determining that circulation had stopped (and especially determining that it had stopped permanently) was a bit difficult for the layperson, so we generally relied on physicians or other health professionals in cases that were not obvious. But no one questioned exactly what it meant to be dead or alive.

Then about that time we began to develop new technologies and medical interventions that could stretch out the dying process and permit us to ask more precisely what it was about the bodily changes occurring that should be treated as the event we call death. Mechanical ventilators, heart-lung machines, dialysis machines, the techniques of cardiopulmonary resuscitation, extracorporeal membrane oxygenation, artificial hearts, left ventricular assist devices (LVADs), and other technologies made it possible to ask exactly what event should be called “death.”

In 1959 a French publication introduced the term le coma dépassé (roughly, overwhelming or deep coma), and suggestions were made that people in such a condition were, in effect, dead.¹ Spurred on by advances in organ transplantation, an American committee based at Harvard Medical School published a report in 1968 that also connected irreversible brain function loss to death. Titled “A Definition of Irreversible Coma,” the report provided criteria for measuring what it called “irreversible coma” and claimed that this state was what should be considered death.² We shall see that, while the report provided diagnostic criteria for this condition, it really did not argue why these criteria should replace the traditional circulatory and respiratory criteria. Very soon thereafter, however, states, beginning with Kansas in 1970,³ began changing their laws so that death could be pronounced on the basis of irreversible loss of brain function in addition to the traditional criteria focusing on circulation.

Within a very short period, scholars working with this literature began to realize that being in a coma, even a “permanent or irreversible” coma,⁴ was not exactly the same as losing all functions of the brain. By 1971 neurologists knew that one could be in what appeared to be an irreversible coma without meeting the Harvard criteria (as they began to be called).⁵ Eventually, it was evident that certain functions of the brain could remain when the Harvard criteria were met.⁶

Three Groups of Definitions

The result was an increasingly complicated set of views about what it took to be called “dead.” One group held that a human is dead when there is irreversible loss of functions of the entire brain (including the brain stem). Another smaller group consisted of a persistent hard core of defenders of circulatory-based concepts of death. Members of this group insisted that we should revert to more traditional criteria for pronouncing death. A third group also began to emerge. Its members held that only certain brain functions were critical as an indicator of life. They were a diverse group with members that thought somewhat different functions were critical. Thus, for example, some held that as long as someone was in an irreversible coma, that person should be classified as dead even if some “trivial” functions, such as brain-stem reflexes, remained. Thus, three clusters of concepts of death competed in the public discourse: one based on irreversible loss of all brain functions that has been referred to as “whole-brain function”; one based on irreversible loss of circulatory function; and one based on loss of what came ambiguously to be called “higher-brain function,” usually equated with consciousness. Moreover, within each of these three clusters of definitions of death were countless variations. For those supporting the whole-brain concept of death, some insisted that literally every function of the brain must be lost for death to occur whereas others excluded some minor, or “trivial,” functions like an auditory nerve potential or certain hormone secretions. For those supporting the cardiocirculatory concept, some equated death with the permanent stoppage of the heart, but since circulation can now be maintained with heart-lung machines, LVADs, or artificial hearts, others equated it with permanent loss of circulation. For those supporting the higher-brain view, some would insist on loss of all cerebral activity; others only on loss of consciousness.

In short, there are many, many different concepts of death that have thoughtful people as advocates. It is now apparent that even if we limit our attention to a single country, like the United States, no concept of death is supported by the majority of the population. Moreover, in different countries different concepts of death have different levels of support.

The Emergence of a Uniform Brain-Oriented Definition

The US President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, which was established in 1978, recognized the need for a uniform definition of death. The commission’s report, Defining Death, was published in 1981. The commission had three aims: “1) to provide a conceptual basis for the new medical practice of death determination using neurological tests; 2) to explain the relationship between determining death on neurological and circulatory-respiratory grounds; and 3) to enhance the uniformity among jurisdictions by proposing and justifying a model statute, the Uniform Determination of Death Act (UDDA).”⁷ The report did an excellent job in fulfilling these three aims, and the Uniform Law Commissioners, the American Bar Association (ABA), and the American Medical Association (AMA) approved the model statute as a substitute for their previous proposals. The statute was also endorsed by the American Academy of Neurology (AAN) and the American Electroencephalographic Society.⁸

The model statute stated,

§ 1. [Determination of Death.] An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.

§ 2. [Uniformity of Construction and Application.] This act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this Act among states enacting it.

Irreversible versus Permanent Loss of Function

Probably the biggest controversy left in the wake of the report was that it used the terms “permanent loss of function” and “irreversible loss of function” interchangeably, although the model statute only used the word “irreversible.” There is a possible difference between “permanent” loss of function and “irreversible” loss. Loss that is “permanent” will never be restored, even though medically it could be if appropriate interventions took place. On the other hand, loss that is “irreversible” could not be restored, even if someone tried as aggressively as possible to restore it.

James Bernat, a Dartmouth physician and a strong proponent of the UDDA, argues that “permanent and irreversible cessation of functions are distinct phenomena but are related causally. All functions that are irreversibly lost are also permanently lost (but not vice versa).”⁹ However, he argues that permanent cessation of fu...

Table of contents

• Cover
• Title Page
• Contents
• 1 Defining Death: An Introduction
• 2 The Dead Donor Rule and the Concept of Death
• 3 The Whole-Brain Concept of Death
• 4 The Circulatory, or Somatic, Concept of Death
• 5 The Higher-Brain Concept of Death
• 6 The Conscience Clause: How Much Individual Choice Can Our Society Tolerate in Defining Death?
• 7 Crafting a New Definition-of-Death Law
• Index