50 years ago, an ad hoc Harvard Medical School committee declared that patients in an “irreversible coma” were dead from a legal and ethical point of view. By irreversible coma, the committee had in mind “comatose individuals who have no discernible central nervous system activity”. In making this pronouncement, the committee was seeking to resolve a series of ethical and legal questions that had arisen since the advent of positive pressure ventilation and research into vital organ procurement.
The criterion was rapidly enshrined in law around the US and, indeed, the globe, and it became the most common standard by which vital organ procurement and the withdrawal of treatment were regulated.
Yet 50 years on, the brain death criterion for death is under intense criticism, with several high profile legal cases in the US calling into question the claim that brain dead patients are really dead.
In two recent JAMA articles (one co-authored with lawyer Thaddeus Pope and psychiatrist David S. Jones), Harvard Medical School’s Robert Truog evaluates the brain death criterion, arguing that, while the rationale behind the brain death criterion is defensible, it nevertheless lacks philosophical justification.
Truog states that the brain death criterion was intended to provide a clear biological criterion in which we could ground our legal definition death. The law needs black and white distinctions, and brain death provides one such distinction:
The law necessarily depends on bright-line determinations to standardize many important societal distinctions, such as when a person becomes an adult, when a person is blind, and when a person is dead…By drawing a bright line at the level of permanent unconsciousness and ventilator dependence, the [Uniform Determination of Death Act]* has defined when a person should be considered dead, making it permissible for the person to be an organ donor if they wish and making it permissible for the health care system to refuse to continue to provide the patient with life support.
Yet Truog also observes that “attempts to find a conceptual justification for linking this diagnosis (i.e., brain death) to the death of the patient remain incomplete”. He recounts how neurologist Alan Shewmon has shown that virtually every function undertaken by a healthy living body can be carried by a brain dead person on a ventilator. He also questions the 2008 attempt by the President’s Council for Bioethics to define death in terms of the absence of the “fundamental vital work of a living organism”. While xenotransplantation and 3D printing may one day provide a solution to organ shortages, the brain death criterion will remain for some time a source of spirited debate.
*The Uniform Determination of Death Act is a 1981 act adopted by most US states according to which “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”.
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