When are you really dead?

^{Photo by Sharon McCutcheon on Unsplash}

The Uniform Determination of Death Act (UDDA) is not an Act and is not uniform. It is a model state law agreed upon in 1981 by a number of expert bodies which gives criteria for deciding whether a severely brain-damaged person is dead or not. Most states have adopted it, but only two-thirds of them have used the complete language of the act. Further complicating the ideal of uniformity are court decisions, further legislation, and scientific technological developments. As a result, a person can be dead in one state and alive in another.

Unsurprisingly, there is a movement for revision of the UDDA and try again for uniformity. The latest version of this is called the RUDDA, the Revised Uniform Determination of Death Act, proposed by three physicians, and published in the Annals of Internal Medicine in early 2020. The Uniform Law Commission, a non-partisan commission has been studying whether UDDA should be updated.

Yes, but not as RUDDA, according to 107 experts in medicine, bioethics, philosophy, and law, spanning a wide variety of perspectives, in the Journal of Medicine & Philosophy. They have endorsed the analysis of Professor Alan Shewmon, a pediatric neurologist at UCLA.

They include John Finnis, of Oxford; Robert P. George, of Princeton; Peter Singer, also of Princeton; Robert C. Tasker, editor of Pediatric Critical Care Medicine; Helen Watt, of the Anscombe Bioethics Centre; and Robert D. Truog, of Harvard.

They write:

while the UDDA needs revision, the RUDDA is not the way to do it. Specifically, (1) the Guidelines have a non-negligible risk of false-positive error, (2) hypothalamic function is more relevant to the organism as a whole than any brainstem reflex, and (3) the apnea test carries a risk of precipitating BD [brain death] in a non-BD patient, provides no benefit to the patient, does not reliably accomplish its intended purpose, and is not even absolutely necessary for diagnosing BD according to the internal logic of the Guidelines; it should at the very least require informed consent, as do many procedures that are much more beneficial and less risky.

Finally, objections to a neurologic criterion of death are not based only on religious belief or ignorance. People have a right to not have a concept of death that experts vigorously debate imposed upon them against their judgment and conscience; any revision of the UDDA should therefore contain an opt-out clause for those who accept only a circulatory-respiratory criterion.

The issue of brain death is as much metaphysics as medicine. It requires a deep understanding of both to define the necessary criteria. But few issues are more important. If doctors get it right, they give comfort and certainty to grieving relatives; if they get it wrong, they will be killing their patients — and probably stealing their organs. It is subtle and taxing, but worthwhile plunging into the debate.

Michael Cook is editor of BioEdge    

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Michael Cook

Michael Cook edits BioEdge, a bioethics newsletter, and MercatorNet, an on-line magazine whose focus is human dignity. He writes from Sydney, Australia.

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