In July 1981, the President's Commission
for the Study of Ethical Problems in Medicine and Biomedical and
Behavioral Research published its first report,
Defining Death: Medical. Legal, and
Ethical /slues in the Determination of Death.' The Commission
made this subject one of its first studies primarily because of a legal
interest: there has been recent disagreement about how best to translate
the current physiological understanding of death into acceptable
statutory language. But the Commission was also interested in reviewing
the dispute between "whole brains" and "higher brain" formulations of
death and appraising currently used brain-based tests for death, which
have become increasingly varied and sophisticated.
During its meetings, the Commission heard
testimony from a variety of experts. Philosophers testified on the
conceptual issues involved in defining death; theologians spoke about
traditional religious concepts; and neurologists described the most valid
tests for determining cessation of functioning of the brain.
Much of the Commission's report consists
of a thorough summary of current knowledge of the physiology of death and
how this knowledge has altered understanding of the concept of death
itself. Although this presentation is excellent, we believe the model
statute that the Commission recommends should not be adopted because
there are significant flaws in it, as well as in the Commission's
supporting arguments.
There are two distinct though related,
problems in constructing a statutory definition of death. The first is a
theoretical concern-providing the correct physiological standard. The
second is the practical difficulty of reconciling this standard, which
includes a new understanding of death. With the more popular conception of
death.
The new understanding of death is largely a
consequence of technological advances in life-support systems. Some
severely brain-injured patients who have suffered permanent cessation of
functioning of the entire brain can be given circulator and respiratory
support such that:
. . . Their appearance resembles that of
the dead as traditionally perceived: they no longer respond to their
environment by sensate and intellectual activity. But their appearance
also differs from that traditionally associated
with the dead because
mechanical support generates breathing. Heartbeat and the associated
physical characteristics (e.g. warm, moist skin) of life (p. 21)
These patients present problems of
labeling, for they have some, but not all of the traditional
characteristics that lead one to call a person "dead." Until recently this
was rarely, if ever, the case: patients who had some of these
characteristics also had all the others. It is not that new technology has
changed the concept of death; rather, this technology has made it apparent
that previously there had been no clear precise definition of death.
In his book
Pragmatism, William lames
provided a useful example of this kind of definitional problem with regard
to the phrase "going around." A squirrel was on the trunk of a tree, and a
hunter was on the opposite side. Wishing to see the squirrel, the hunter
proceeded to go around the tree: the squirrel, not wishing for he seen.
Also went around the tree, always facing the hunter but keeping the trunk
between them Had the hunter “gone around” the squirrel or not James
correctly noted that the phrase "going around" was ambiguous: to one
sense (going around from north, to west, to south, to east, and back to
north) the hunter did go around the squirrel, and in the other sense
(going around from front, to left, to back, to right, and to front again)
he did not. The old sense of "going around" was gone forever. Indeed,
there never really was an old unambiguous sense.
Similarly, one regarded a man as dead if
the organism as a whole had permanently ceased to function, if he had
permanently stopped breathing, and if his heart had permanently stopped
beating. All these usually happened at the same time or within a few
minutes of one another, so that people did not consider how the\ would
describe the person if one phenomenon occurred but the other two did not.
However, because of modern technology, there are patients whose organism
as a whole has permanently ceased to function, but whose respiration and
circulation do function through mechanical support systems.
In James's case. there seems no reason for
choosing either sense of "going around" as the more important and basic
However, in the case of death clearly the permanent cessation of the
organism as a whole is far closer to what has always been meant by death
than is permanent absence of breathing and heartbeat. Recognizing this
point, the Commission states:
Although absence of breathing and
heartbeat may often have been spoken of as "defining" death, review of
history and of current medical and popular understanding makes clear that
these were merely evidence for the disintegration of the organism as a
whole as discussed m Chapter Three (p. 58).
Thus, the Commission defined the concept
of death as the permanent cessation of functioning of the organism as a
whole, and developed a statutory definition or standard of death on this
basis. We believe that this is the correct approach,-' and that the report
should be judged on how well it has carried out this intention
The second practical problem that a new
statutory definition must confront results from the rapid increase in the
medical understanding of the physiology of death. There is a considerable
gap between the understanding of most physicians-who have come to accept
the centrality of the functioning of the brain in defining death-and most
laypersons who, along with a few practicing physicians, continue to regard
the functioning of the heart and lungs as central. Informed medical
opinion is now virtually unanimous that a person is dead when and only
when the entire brain, including the brainstem, has permanently ceased to
function. However, most laypersons continue to believe that the permanent
cessation of heartbeat and breathing determines death.
As the Commission acknowledges, the problem
lies in incorporating the new medical understanding in a statute without
unduly disturbing those who still regard cardiopulmonary function as
central.
The Origin of the
Problem
After reviewing the anatomy of the brain, and citing clinical examples of
individuals with only partial brain damage, the Commission concludes:
The President's Commission, as subsequent chapters explain more fully,
regards the cessation of the vital functions of the entire brain-and not
merely portions thereof, such as those responsible for cognitive
functions-as the only proper neurological basis for declaring death. This
conclusion accords with the overwhelming consensus of medical and legal
experts and the public (p. 18).
A neurological standard
actually lay behind past as well as present tests used by the medical
profession for declaring death. Physicians traditionally have determined
death by examining patients for total unresponsiveness: lack of any
spontaneous movements, including breathing: absence of papillary light
reflexes, and absence of heartbeat. Of these signs, only the last is not
directly a sign of cessation of brain functioning. The value of the
commonly known tests of death-which detect the permanent absence of
spontaneous heartbeat and breathing-depends upon their producing
irreversible cessation of functioning of the whole brain.
The Commission traces
the history of the use of brain-based tests in death determinations. One
landmark was the 1959 description by French neurophysiologists of the characteristics of patients
with gross brain damage who have been maintained on respirators, a
condition that they aptly termed coma depasse (beyond coma); another was
the 1968 report by the Ad Hoc Committee of the Harvard Medical School to
Examine the Definition of Brain Death, which listed criteria for
diagnosing a permanently nonfunctioning brain. These criteria have since
been overwhelmingly validated; no person known to have met them has
survived. The Commission also reviews the status of confirmatory tests of
permanent cessation of whole brain functioning, including tests of
cerebral blood flow and electroencephalography, and points out some of
their limitations.
The Commission discusses the role of cessation of ventilation and
circulation in the cessation of functioning of the organism as a whole:
For patients who are
not artificially maintained, breathing and heartbeat were and are reliable
signs either of systemic integration and/or of continued brain functioning
(depending on which approach one takes to the "whole brain" concept). To
regard breathing and respiration as having diagnostic significance when
the brain of a respirator-supported patient has ceased functioning,
however, is to forget the basic reasoning behind their use in
individuals who are not artificially maintained (p. 37).
The Commission considers and rejects the
"higher brain" formulation of death, which depends upon a concept of death
defined as "loss of personhood," or in the words of Robert Vetch, its
major proponent, "the irreversible loss of that which is essentially
significant to the nature of man " By this definition, permanent loss of
consciousness and cognition would count as death; thus patients in
persistent vegetative states (Karen Ann Quinlan, for example) would be
considered dead. These patients have normally functioning brainstems
despite severe damage to, or complete loss of, their neocortex. They are
permanently comatose but maintain spontaneous respiration and heartbeat
have intact brainstem reflexes such as pupillary constriction to light,
and maintain the complex array of neuroendocrine regulatory mechanisms
subserved by the brainstem and hypothalamus. While such patients have lost
their personhood, they are not dead because they have retained most of the
functions of the organism as a whole.
An important weakness of the higher brain
formulation of death is the "slippery slope" problem. Just how much
neocortical damage is necessary for death? By this definition, would not
severely demented patients also be considered dead" Then what about those
somewhat less severely brain damaged". Because personhood is an inherently
vague concept, strict criteria for its loss are difficult to identify.
The Commission might also have pointed out
that the higher brain formulation is unacceptable because it applies only
to human beings and not to related species. By the traditional concept of
death, we mean the same thing when we say, "Mr. Jones died last night" as
when we say, “My dog died last week." Death is a biological concept, so
an acceptable definition should be applicable to related species. Such is
the case when death is defined as the permanent cessation of functioning
of the organism as a whole.
The higher brain formulation is not
acceptable as the definition of death. It does have a place in
determining possible grounds for nonvoluntary euthanasia that is, allowing
an organism to die when that organism is no longer a person. But the major
question-is nonvoluntary euthanasia desirable for patients in persistent
vegetative status-should not be answered by blurring the distinction
between loss of personhood and death of the organism.
The Commission rightly points out that the
problem of formulating a precise statutory definition goes beyond the
boundaries of medical authority. They also reject a judicial solution
because specifying a standard of death is too fundamental to rely purely
on retrospective determination. Furthermore a judicial solution would
require too much time expense and psychological
trauma for those involved. Favoring a legislative solution, they
point out that:
A statute on death ought to guide
physicians and others in decision making about respirator-maintained
patients; it ought also to educate those who must make legal and policy
decisions. Legislation will not remove the need for reasoned
interpretation-first by physicians and perhaps then by judges-but it can
restrict the compass within which they make their choices to one which has
been found acceptable by the public Furthermore, if legislators are guided
by a single model bill, the likelihood of statutory law that is uniform in
language and intent is greatly increased (pp. 50-51).
In Chapter five of the report, "What
'Definition' ought to be adopted?" the Commission confronts the main
problem in devising an adequate statutory definition of death. (When the
Commission puts the word "definition" in quotation marks, as in this
title, it is usually referring to a statutory definition, not an account
of the ordinary meaning of the word "death.") The problem is to include
in the statute the theoretically correct standard of death-irreversible
cessation of all brain functioning-but also allow, for practical
purposes, irreversible cessation of cardiopulmonary functions to be used
as a test of death in the overwhelming majority of cases. We do not think
the Commission's solution to this problem-the Uniform Determination of
Death Act (UDDA)-is successful. The UDDA provides:
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 brainstem, is dead. A determination of death must be made in
accordance with accepted medical standards (p. 73).
The Commission rightly notes that "the
statute must address the right question" (p. 57). It then states: "The
Commission conceives the question to be, 'How, given medical advances in
cardiopulmonary support, can the evidence that death has occurred be
obtained and recognized?' “We do not think this is the right question at
all. Indeed, the UDDA statute does not even attempt to answer this
question, which sounds much more like a medical query than one that should
be addressed by a statute. The basic question that a statute should
address, we believe, is: given medical advances in the understanding of
death, what general physiological standards should be used to "define"
death" Another question that might be addressed by a statute is: what
practical guide should be given to physicians concerning application of
this standard? Note that these are two separate questions: the Commission
fails to recognize fully that two distinct questions have to be answered,
leading to some of the confusion in its report.
When dealing with the conceptual and
theoretical bases of the proper standard of death, the report is clear:
In setting forth the standards recommended
in this Report, the Commission has used the "whole brain" terms to clarify
the understanding of death that enjoys near universal acceptance in our
society. The Commission finds that the "whole brain" formulations give
resonance and depth to the biomedical and epidemiological data presented
in Chapter Two . . . the "whole brain" formulations provide a theory
that is sufficiently precise, concise and widely acceptable (p. 16).
-
The Commission also acknowledges, as noted
above, that the heart and lungs play only a subsidiary role:
Although absence of breathing and heartbeat
may often have been spoken of as "defining-" death, review of
history and current medical and popular understanding_ makes clear that
these were merely evidence for the disintegration of the organism as a
whole, as discussed in Chapter Three (p. 58).
However, the Commission does not seem to
realize that something that is "merely evidence" should not be presented
-as a standard of death, for it presents a statute that
includes two equal standards of death: (1) "irreversible cessation of
circulatory and respiratory, and (2) "irreversible cessation of all
functions of the entire brain, including the brainstem."
The clearest statement of the Commission's
problem in separating conceptual and theoretical considerations from
practical ones comes in its discussion of the statute drafted by the Law
Reform Commission of Canada:
It would be possible, as in the statute
drafted by the Law Reform Commission of Canada, to propound the
irreversible cessation of brain functions as the "definition" and then to
permit that standard to be met not only by direct measures of brain
activity but also "by the prolonged absence of spontaneous cardiac and
respiratory functions." Although conceptually acceptable (and vastly
superior to the adoption of brain cessation as a
primary standard conjoined with
a nonspecific reference to other apparently unrelated "usual and
customary procedures”), the Canadian
proposal breaks with tradition in a manner that appears
to
be unnecessary (p. 74).
Here the Commission seems to he claiming
that the only flaw in the Canadian account is that it "breaks with
tradition in a manner that appears to he unnecessary." But this is a very
surprising claim. Almost half the state statutes adopted since 1970 use
only the brain standard and do not even mention circulation and
respiration. Indeed, this is also true of the earlier statutes endorsed
by the American Bar Association` and the Uniform Brain Death Act' put
forward by the National Conference of Commissioners on Uniform State Laws.
Since it is hard to take at face value the
claim that the Canadian proposal unnecessarily breaks with tradition, it
is worth examining how the Commission supports this claim. It correctly
points out:
For most lay people-and in all probability
for most physicians as well-the permanent loss of heart and lung function
(for example, in an elderly person who has died in his or her sleep)
clearly manifests death (p. 74).
But the Canadian statute acknowledges that
this is true. The Commission then alludes to the brain's special role:
As previous chapters in this Report
recount, biomedical scientists can explain the brain's particularly
important-and vulnerable-role in the organism as a whole and show how
temporary loss of blood flow (ischemia) becomes a permanent cessation
because of the damage that it inflicts on the brain (p. 74).
This is also compatible with the Canadian statute. Then
comes the crucial step in the argument:
Nonetheless, most of
the times people do not and need not, go through this two step process.
Irreversible loss of circulation is recognized as death because setting,
aside any mythical connotations of the heart, a person without blood flow
simply cannot live. Thus, the Commission prefers to employ language which
would reflect the continuity of the traditional standard and the newer,
brain-based standard (p. 74).
The Commission's
reasoning seems to be as follows: if people do not and need not think
about the cessation of brain function in recognizing death from loss of
heart and lung function, then cessation of heart and lung function is an
independent stand and of
death. But this reasoning is
fallacious. Consider the following parallel argument. If people do not
and need not think about cessation of brain function (or of heart and lung
function) in recognizing death from someone being smashed flat by a
steamroller, then being smashed flat by a steamroller is an independent
standard of death. Even if people were commonly smashed flat by
steamrollers, it would still not be a standard of death. For a standard of
death is not merely that by which we can recognize that someone is dead;
it is, based on all of our medical understanding, that which is both a
necessary and sufficient condition for death. If the standard is
fulfilled, the person is dead; if it is not fulfilled, the person is not
dead. Irreversible cessation of all brain functions is such a standard. If
it has occurred, the person is dead; if it has not occurred, the person is
not dead, no matter what has happened to the heart, lungs, or any other
organ.
Let us now see why
"irreversible cessation of circulatory and respiratory functions" is not
a standard of death. First, this phrase is ambiguous (recall the parallel
problem with "going around"). It can mean either "irreversible cessation
of spontaneous circulatory and respiratory functions" or "irreversible
cessation of artificially supported circulatory and respiratory
functions." No such ambiguity exists with regard to cessation of brain
functions, for there are no artificially supported brain functions, in the
relevant sense. No one would want to call a man in an iron lung and
wearing a pacemaker dead, especially if he were still talking to us. Thus,
irreversible cessation of spontaneous cardiopulmonary function may be a
necessary condition for death, but it is certainly not sufficient. And
irreversible cessation of artificially supported circulatory and
respiratory functions is also not a standard of death, for though it may
be a sufficient condition of death, it is not a necessary condition; it is
one of the key points of the Commission's report that when circulation and
respiration are being artificially maintained, but all brain functions
have irreversibly ceased, the person is dead.
The report does not
explain the ambiguous phrase "irreversible cessation of circulatory and
respiratory functions"-all the more surprising for the Commission explains
almost all the words in the statute, even why it uses "individual" rather
than "person" and "is dead" rather than
"will
be considered dead."
Possibly it would have required far more explanation than the Commission
was prepared to offer.
There is no acceptable
understanding of the phrase "irreversible loss of circulatory and
respiratory functions" that provides a genuine standard for death. The
Commission failed to realize this difficulty or perhaps it did partly
realize it, and for that reason failed even to mention "spontaneous" or
"artificially maintained." We think the Commission did not distinguish
carefully enough between a
standard,
which must be a necessary and sufficient condition of death if it is to
"define" it, and a test,
which is merely a
way of determining death.
No doubt some of the
Commission's problems were brought on by its concern with avoiding radical
change:
The conservative nature
of the reform here proposed will be more apparent if the statute refers
explicitly to the existing cardiopulmonary standard for determination of
death. The brain based standard is, after all, merely supplementary to
the older standard, which will continue to be adequate in the
overwhelming number of cases in the foreseeable future (p. 59).
However, any standard
of death must be adequate in all cases, not merely the overwhelming
number. Here is another instance in which the term "spontaneous" becomes
important. For the "older standard" was for "irreversible cessation of
spontaneous
circulatory and
respiratory functions," and the Commission rightly recognizes that this
standard is no longer universally adequate. What it does not seem to
realize is that this means it is not really a standard but merely a test.
Cardiopulmonary tests may be adequate in the overwhelming number of cases,
and brain-based tests may be used in only a small portion of cases. but
this belongs in the practical pan of the statute, not in the statutory
definition of death.
The Commission has thus
created a statutory definition of death that is seriously misleading and
that contains the more serious flaw that the Commission finds in previous
statutes: it provides two independent standards of death, without
explaining the relationship between them.
A Modified
Solution
The Commission strived to produce a statute
that would be adopted by all jurisdictions in the United
States, and it presents good arguments for uniform legislation. Since
1970, twenty-seven states have adopted determination-of-death statutes:
though the statutes appear to have similar intent, they are confusingly
diverse in form and many are ambiguously worded.
The UDDA statute is not desirable, we
believe, because it too is ambiguous and it elevates the irreversible
cessation of cardiopulmonary functioning to the level of a standard of
death, when it is really only a test, although a test that may be used in
most circumstances. Permanent cessation of spontaneous cardiopulmonary
functioning works as a test of death only in the absence of artificial
cardiopulmonary support because only there does it produce the true
standard of death-the irreversible cessation of all brain functions. A
conceptually satisfactory statute would not need to mention cessation of
cardiopulmonary function at all. It would be sufficient to include only
irreversible cessation of whole brain functioning and allow physicians to
select validated sand agreed-upon tests (prolonged absence of
spontaneous cardiopulmonary function would be one) to measure
irreversible cessation of whole brain function. However, the Commission
felt, and we agree, that a statute that included cessation of
cardiopulmonary function would be more broadly acceptable and useful.
The solution is to reconcile the claims of
conceptual clarity and practical utility. In order to produce a more
conceptually acceptable statute of death that would also be useful, we
have incorporated into the UDDA statute the distinction between a standard
and a test that was recognized by the model statute provided by the Law
Reform Commission of Canada, and by the statute we recently proposed. Our
proposed statute reads:
An individual, who has sustained
irreversible cessation of all functions of the entire brain, including
the brainstem, is dead
(a) In the absence of artificial means of
cardiopulmonary support, death (the irreversible cessation of all brain
functions) may be determined by the prolonged absence
of
spontaneous circulatory and respiratory
functions.
(b) In the presence
of
artificial means of cardiopulmonary
support,
death (the irreversible
cessation of all brain functions) must be determined by tests of brain
function.
In both situations, the
determination of death must be made in accordance with accepted medical
standards.
We believe that this
statute is conceptually clearer than the UDDA statute. It identifies the
irreversible cessation of all functions of the entire brain, including the
brainstem, as the standard of death, thus making clear that deathis
a single phenomenon. It also provides a guide to the practicing
physician, pointing out that he or she may continue to declare death by
cardiopulmonary tests in the majority of deaths uncomplicated by
artificial cardiopulmonary support. And in the presence of
cardiopulmonary
support,
the physician must directly measure the functioning of the
brain. Thus this statute is both practical and conceptually clear.