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The impending collapse of the whole-brain definition of death.

For many years there has been lingering doubt, at least among theorists, that the currently fashionable "whole-brain-oriented" definition of death has things exactly right. I myself have long resisted the term "brain death" and will use it only in quotation marks to indicate the still common, if ambiguous, usage. The term is ambiguous because it fails to distinguish between the biological claim that the brain is dead and the social/legal/moral claim that the individual as a whole is dead because the brain is dead. An even greater problem with the term arises from the lingering doubt that individuals with dead brains are really dead. Hence, even physicians are sometimes heard to say that the patient "suffered brain death" one day and "died" the following day. It is better to say that he "died" on the first day, the day the brain was determined to be dead, and that the cadaver's other bodily functions ceased the following day. For these reasons I insist on speaking of persons with dead brains as individuals who are dead, not merely persons who are "brain dead."

The presently accepted standard definition, the Uniform Determination of Death Act, specifies that an individual is dead who has sustained "irreversible cessation of all functions of the entire brain, including the brain stem."[1] It also provides an alternative definition specifying that an individual is also dead who has sustained "irreversible cessation of circulatory and respiratory functions." The President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research made clear, however, that circulatory and respiratory function loss are important only as indirect indicators that the brain has been permanently destroyed (p. 74).

Doubts about the Whole-Brain-Oriented Definition

It is increasingly apparent, however, that this consensus is coming apart. As long ago as the early 1970s some of us doubted that literally the entire brain had to be dead for the individual as a whole to be dead.[2]

From the early years it was known, at least among neurologists and theorists who read the literature, that individual, isolated brain cells could be perfused and continue to live even though integrated supercellular brain function had been destroyed. When the uniform definition of death said all _functions of the entire brain must be dead, there was a gentleman's agreement that cellular level functions did not count. The President's Commission recognized this, positing that "cellular activity alone is irrelevant" (p. 75). This willingness to write off cellular level functions is more controversial than it may appear. After all, the law does not grant a dispensation to ignore cellular level functions, no matter how plausible that may be. Keep in mind that critics of soon-to-be-developed higher brain definitions of death would need to emphasize that the model statute called for loss of all functions.

By 1977 an analogous problem arose regarding electrical activity. The report of a multicenter study funded by the National Institutes of Neurological Diseases and Stroke found that all of the functions it considered important could be lost irreversibly while very small (2 microvolt) electrical potentials could still be obtained on EEG. These were not artifact but real electrical activity from brain cells. Nevertheless, the committee concluded that there could be "electrocerebral silence" and therefore the brain could be considered "dead" even though these small electrical charges could be recorded.[3]

It is possible that the members of the committee believed that these were the result of nothing more than cellular level functions, so that the same reasoning that permitted the President's Commission to write off little functions as unimportant would apply. However, no evidence was presented that these electrical potentials were arising exclusively from cellular level functions. It could well be that the reasoning in this report expanded the existing view that cellular functions did not count to the view that some minor supercellular functions could be ignored as long as they were small.

More recently the neurologist James Bernat, a defender of the whole-brain-oriented definition of death, has acknowledged that: the bedside clinical examination is not sufficiently sensitive to exclude the possibility that small nests of brain cells may have survived ... and that their continued functioning, although not contributing significantly to the functioning of the organism as a whole, can be measured by laboratory techniques. Because these isolated nests of neurons no longer contribute to the functioning of the organism as a whole, their continued functioning is now irrelevant to the dead organism.[4]

The idea that functions of "isolated nests of neurons" can remain when an individual is declared dead based on whole-brain-oriented criteria certainly stretches the plain words of the law that requires, without qualification, that all functions of the entire brain must be gone. That exceptions can be granted by individual private citizens based on their personal judgments about which functions are "contributing significantly" certainly challenges the integrity of the idea that the whole brain must be dead for the individual as a whole to be dead.

There is still another problem for those who favor what can now be called the "whole-brain definition of death." It is not altogether clear that the "death of the brain" is to be equated with the "irreversible loss of function." At least one paper appears to hold out not only for loss of function but also for destruction of anatomical structure.[5] Thus we are left with a severely nuanced and qualified whole-brain-oriented definition of death. For it to hold as applied in the 1990s, one must assume that function rather than structure is irreversibly destroyed and that not only can certain cellular-level functions and microvolt-level electrical functions be ignored as "insignificant," but also certain "nests of cells" and associated supercellular-level functions can as well.

By the time the whole-brain-oriented definition of death is so qualified, it can hardly be referring to the death of the whole brain any longer. What is particularly troublesome is that private citizens--neurologists, philosophers, theologians, and public commentators--seem to be determining just which brain functions are insignificant.

The Higher-Brain-Oriented Alternative

The problem is exacerbated when one reviews the early "brain death" literature. Writers trying to make the case for a brain-based definition of death over a heart-based one invariably pointed out that certain functions were irreversibly lost when the brain was gone. Then, implicitly or explicitly, they made the moral/philosophical/religious claim that individuals who have irreversibly lost these key functions should be treated as dead.

While this function-based defense of a brain-oriented definition of death served the day well, some of us realized that the critical functions cited were not randomly distributed throughout the brain. For instance, Henry Beecher, the chair of the Harvard Ad Hoc Committee, identified the following functions as critical: "the individual's personality, his conscious life, his uniqueness, his capacity for remembering, judging, reasoning, acting, enjoying, worrying, and so on."[6]

Of course, all these functions are known to require the cerebrum. If these are the important functions, the obvious question is why any lower brain functions would signal the presence of a living individual. This gave rise to what is now best called the higher-brain-oriented definition of death: that one is dead when there is irreversible loss of all "higher" brain functions.[7] At first this was referred to as a cerebral or a cortical definition of death, but it seems clear that just as some brain stem functions may be deemed insignificant, likewise, some functions in the cerebrum may be as well. Moreover, it is not clear that the functions of the kind Beecher listed are always necessarily localized in the cerebrum or the cerebral cortex. At least in theory someday we may be able to build an artificial neurological organ that could replace some functions of the cerebrum. Someone who was thinking, feeling, reasoning, and carrying on a conversation through the use of an artificial brain would surely be recognized as alive even if the cerebrum that it had replaced was long since completely dead. I have preferred the purposely ambiguous term "higher brain function," as a way to make clear that the key philosophical issue is which of the many brain functions are really important.

Although that way of putting the question may offend the defenders of the more traditional whole-brain definition of death, once they have made the move of excluding the cellular, electrical, and supercellular functions they consider "insignificant," they are hardly in a position to complain about the project of sorting functions into important and unimportant ones.

Criticisms of the Higher Brain Formulations

Several defenders of the whole-brain-oriented concept have claimed that defining death in terms of loss of certain significant brain functions involves a change in the concept of death. This, however, rests on the implausible claim of Alex Capron, the executive director of the President's Commission, that the move from a heart-oriented to a whole-brain-oriented definition of death is not a change in concept at all, but merely the recognition of new diagnostic measures for the traditional concept of death (p. 41). It is very doubtful, however, that the move to a whole-brain-oriented concept of death is any less of a fundamental change in concept than movement to a higher-brain-oriented one. From the beginning of the debate many people with beating hearts and dead brains would have been alive under the traditional concept of death focusing on fluid flow, but are clearly dead based on a then-newer whole-brain-oriented concept. Most understood this as a significant change in concept. In any case, even if there is a greater change in moving to a definition of death that identifies certain functions of the brain as significant, the mere fact that it is a conceptual change should not count against it. Surely, the critical question is which concept is right, not which concept squares with traditional views.

A second major charge against the higher-brain-oriented formulations has been that we are unable to measure precisely the irreversible loss of these higher functions based on current neurophysiological techniques (p. 40). By contrast it has been assumed that the irreversible loss of all functions of the entire brain is measurable based on current techniques.

Although lay people generally do not realize it, the measurement of death based on any concept can never be 100 percent accurate. The greatest error rates have certainly been with the heart-oriented concepts of death. Many patients have been falsely determined to have irreversibly lost heart functions. In earlier days we simply did not have the capacity to measure precisely. Even today there may be no reason to determine precisely whether the heart could be restarted in the case of a terminally ill, elderly patient who is ready to the.

There is even newly found ambiguity in the notion of irreversibility.[8] We are moving rapidly toward the day when organs for transplant will be obtained from non-heart-beating cadavers who have been determined to be dead based on heart function loss. It will be important for death to be pronounced as quickly as possible after the heart function has been found irreversibly lost. It is not clear, however, whether death should be pronounced when the heart has permanently stopped (say, following a decision based on an advance directive to withdraw a ventilator), but could be started again. In the minutes when it could be started, but will not be because the patient has refused resuscitation, can we say that the individual is dead?

Likewise, it is increasingly clear that we must acknowledge some, admittedly very small, risk of error in measuring the irreversible loss of all functions of the entire brain. Alan Shewmon has argued that the determination of the death of the entire brain cannot be made with as great a certainty as some neurologists would claim.[9] Some neurologists have persisted in claiming that brains are dead (or have irreversibly lost all function) even though electrical function still remains.[10] Clearly, brains with electrical function must have some living tissues; claims these brains are dead must rest on the assumption that remaining functions are insignificant.

None of this should imply that the death of the brain cannot be measured with great accuracy. But it is wrong to assume that similar or greater levels of accuracy cannot be obtained in measuring the irreversible loss of key higher functions, including consciousness. The literature on the persistent vegetative state repeatedly claims that we can know with great accuracy that consciousness is irreversibly lost.[11] The AMA's Councils on Scientific Affairs and Ethical and judicial Affairs have concluded that the diagnosis can be made with an error rate of less than one in a thousand.[12] In fact the President's Commission itself said that "the Commission was assured that physicians with experience in this area can reliably determine that some patients' loss of consciousness is permanent."[13]

Even if we could not presently measure accurately the loss of key higher functions such as consciousness, that would have a bearing only on the clinical implementation of the higher-brain-oriented definition, not the validity of the concept itself. Defenders of the higher brain formulation might continue to use the now old-fashioned measures of loss of all function, but only because of the assurance that if all functions are lost, the higher functions certainly are. Such a conservative policy would leave open the question of whether we could some day measure the loss of higher functions accurately enough to use the measures clinically.

Still another criticism is the claim that any higher brain formulation would rely on a concept of personhood or personal identity that is philosophically controversial (pp. 38-39). Personhood theories are notoriously controversial. It is simply wrong, however, to claim that any higher-brain-oriented concept of death is based on either personhood or personal identity theories. I, for one, have acknowledged the possibility that there are living human beings who do not satisfy the various concepts of personhood. As long as the law is only discussing whether someone is a living individual, the debate over personhood is irrelevant.

Perhaps the most serious charge against the higher-brain-oriented formulations is that they are susceptible to the so-called slippery slope argument.[14] Once one yields on the insistence that all functions of the entire brain must be irreversibly gone before an individual is considered dead, there seems to be no stopping the slide of eliminating functions considered insignificant. The argument posits that once totally and permanently unconscious individuals who have some other brain functions (such as brain stem reflexes) remaining are considered dead, someone will propose that those with only marginal consciousness similarly lack significant function and soon all manner of functionally compromised humans will be defined as dead. Since being labelled dead is normally an indicator that certain moral and legal lights cease, such a slide toward considering increasing numbers of marginally functional humans as dead would be morally horrific.

But is the slippery slope argument plausible? In its most significant form, such an argument involves a claim that the same principle underlying one apparently tolerable judgment also entails other, clearly unacceptable judgments. For example, imagine we were trying to determine whether the elderly could be excluded from access to certain health care services based on the utilitarian principle of choosing the course that produced the maximum aggregate good for society. The slippery slope argument might be used to show that the same principle entails implications presumed clearly unacceptable, such as excluding health care from the socially unproductive. To the extent that one is certain that the empirical assumptions are correct (for example, that the utilitarian principle does entail excluding care from the unproductive) and one is confident that such an outcome would be morally unacceptable, then one might attempt to use slippery slope arguments to challenge the proposal to withhold health care from the elderly. The same principle used to support one policy also entails other policies that are clearly unacceptable.

The slippery slope argument is valid insofar as it shows that the principle used to support one policy under consideration entails clearly unacceptable implications when applied to different situations. In principle, there is no difference between the small, potentially tolerable move and the more dramatic, unacceptable move. However, as applied to the definition of death debate, the slippery slope argument can actually be used to show that the whole-brain-oriented definition of death is less defensible than the higher-brain-oriented one.

As we have seen, the whole-brain-oriented definition of death rests on the claim that irreversible loss of all functions of the entire brain is necessary and sufficient for an individual to be dead. That, in effect, means drawing a sharp line between the top of the spinal cord and the base of the brain (i.e., the bottom of the brain stem). But is there any principled reason why one would draw a line at that point?

In the early years of the definition of death debate, the claim was made that an individual was dead when the central nervous system no longer retained the capacity for integration. It was soon discovered, however, that this could be taken to imply that one was "alive" as long as some spinal cord function remained. That was counterintuitive (and also made it more difficult to obtain organs for transplant). Hence, very early on it was agreed that simple reflexes of the spinal cord did not count as an indicator of life. Presumably the principle was that reflex arcs that do not integrate significant bodily functions are to be ignored.

But why then do brain stem reflexes mediated through the base of the brain stem count? By the same principle, if spinal reflexes can be ignored, it would seem that some brain stem reflexes might be as well. An effort to show that brain stem reflexes are more integrative of bodily function is doomed to fail. At most there are gradual, imperceptible gradations in complexity between the reflexes of the first cervical vertebra and those of the base of the brain stem. Some spinal reflexes that trigger extension of the foot while the contralateral arm is withdrawn certainly cover larger distances.

Whatever principle could be used to exclude the spinal reflexes surely can exclude some brain stem reflexes as well. We have seen that the defenders of the whole-brain-oriented position admit as much when they start excluding cellular level functions and electrical functions. Certainly, those who exclude "nests of cells" in the brain as insignificant have abandoned the whole brain position and are already sliding along the slippery slope.

By contrast the defenders of the higher-brain-oriented definition of death can articulate a principle that avoids such slipperiness. Suppose, for example, they rely on classical Judeo-Christian notions that the human is essentially the integration of the mind and body and that the existence of one without the other is not sufficient to constitute a living human being. Such a principle provides a bright line that would clearly distinguish the total and irreversible loss of consciousness from serious but not total mental impairments.

Likewise, the integration of mind and body provides a firm basis for telling which functions of nests of brain cells count as significant. It avoids the hopeless task of trying to show why brain stem reflexes count more than spinal ones or trying to show exactly how many cells must be in a nest before it is significant. There is no subjective assessment of different bodily functions, no quibble about how much integration there must be for the organism to function as a whole. The principle is simple. It relies on qualitative considerations: when, and only when, there is the capacity for organic (bodily) and mental function present together in a single human entity is there a living human being. That, I would suggest, is the philosophical basis for the higher-brain-oriented definition of death. It avoids the slippery slope on which the defenders of the whole-brain-oriented position have found themselves; it, and only it, provides a principled reason for avoiding the slippery slope.

Conscience Clauses

There is one final development that signals the demise of the whole-brain-oriented definition of death as the single basis for declaring death. It should be clear by now that the definition of death debate is actually a debate over the moral status of human beings. It is a debate over when humans should be treated as full members of the human community. When humans are living, full moral and legal human rights accrue. Saying people are alive is simply shorthand for saying that they are bearers of such rights. That is why the definition of death debate is so important. It is also why, in principle, there is no scientific way in which the debate can be resolved. The determination of who is alive--who has full moral standing as a member of the human community--is fundamentally a moral, philosophical, or religious determination, not a scientific one.

In a pluralistic society, we are not likely to reach agreement on such moral questions, which is why no one definition of death has carried the day thus far. When one realizes that there are many variants on each of the three major definitions of death, each of which has some group of adherents, it seems unlikely that any one position is likely to gain even a majority any time soon. For example, defense of the higher-brain-oriented position stands or falls on the claim that the essence of the human being is the integration of a mind and a body, a position reflecting religious and philosophical assumptions that are not beyond dispute. (Other defenders of the higher brain position, for example, are more Manichaean, holding that only the mind is important; they apparently are committed to a view that a human memory transferred to a computer with a capacity to continue mental function would still have all the essential ingredients of humanness and that the same living human being continues to live on the computer hard drive.) These are disputes not likely to be resolved soon.

As a society we have a method for dealing with fundamental disputes in religion and philosophy. We tolerate diversity and affirm the right of conscience to hold minority beliefs as long as actions based on those beliefs do not cause insurmountable problems for the rest of society. That is precisely what in 1976 I proposed doing in the dispute over the definition of death.[15] I proposed a definition of death with a conscience clause that would permit individuals to choose their own definition of death based on their religious and philosophical convictions. I did not say at the time, but should have, that the choices would have to be restricted to those that avoid violating the rights of others and avoid creating insurmountable social problems for the rest of society. For example, I assume that people would not be able to pick a definition that required society to treat them as dead even though they retained cardiac, respiratory, mental, and neurological integrating functions. Likewise, I assume that people would not be permitted to pick a definition that would insist that they be treated as alive when all these functions were absent. There are minimal public health considerations that would set limits on the choices available, but certainly the three major options would be tolerable: heart-, whole-brain-, and higher-brain-oriented definitions.

The state of New Jersey has gone part of the way recently by adopting a law with a conscience clause that would permit religious objectors to designate in advance that a heart-oriented definition should be used in pronouncing their deaths.[16] Since it is now widely accepted that anyone can write an advance directive mandating withdrawal of life support once one is permanently unconscious, any persons who favor a higher-brain-oriented definition of death already have the legal right to make choices that end up with them dead in anyone's sense of the term very shortly after they had lost higher brain functions. Permitting them to designate that they be called dead when they are permanently unconscious changes very little.

There is a litany of worries over conscience clauses that defenders of the whole-brain-oriented definitions cite. They worry about life insurance paying off at different times, depending on which definition is chosen, and about homicide charges being dependent on such choices, but these are already with us when people are permitted to use advance directives to control the timing of their deaths. They worry about health insurance costs, but for those who choose a higher-brain-oriented formulation the only implication is lower costs. For those who choose a heart-oriented definition potentially higher health insurance costs could result, but that position is held only by a small minority, and it is technically so difficult to maintain a beating heart in someone whose brain is dead that the costs will probably not be significant. If they were, the problem could be addressed by clarifying that standard health insurance would not cover the medical costs for maintaining someone who is "alive with a dead brain." None of these problems has arisen in New Jersey, and none is likely to arise. In short, there is no reason to suspect that the use of a conscience clause will result in social chaos--only in greater respect for minority religious and philosophical views that would otherwise be suppressed by the tyranny of the majority. For convenience it would probably be prudent to adopt a single "default definition" favored by a majority; it would make little difference which definition is used as long as the minority who had strong preference for an alternative had the right to designate in advance its choice of another definition. As with surrogate decisionmaking for terminal care and the procurement of cadaver organs, I think it would be reasonable for the next of kin to have the right of surrogate decisionmaking in the case of minors or mentally incompetent individuals who had not expressed a preference while competent.

Crafting New Public Law

Changing current law to conform to these suggestions will be complex and should be done with deliberate speed, but it should be done. Two changes would be needed in the current definition of death: (1) incorporating the higher brain function notion and (2) incorporating some form of the conscience clause.

Present law makes persons dead when they have lost all functions of the entire brain. It is uniformly agreed that the law should incorporate only this basic concept of death, not the precise criteria or tests needed to determine that the whole brain is dead. That is left up to the consensus of neurological experts.

All that would be needed to shift to a higher brain formulation is a change in the wording of the law to replace "all functions of the entire brain" with some relevant, more limited alternative. There are at least three options: references to higher brain functions, cerebral functions, or consciousness. While we could simply change the wording to read that an individual is dead when there is irreversible cessation of all higher brain functions, that poses a serious problem. We are now suffering from the problems created by the vagueness of the referring to "all functions of the entire brain." Even though referring to "all higher brain functions" would be conceptually correct, it would be even more ambiguous. It would lack needed specificity.

This specificity could be achieved by referring to irreversible loss of cerebral functions, but we have already suggested two problems with that wording. Just as we now know there are some isolated functions of the whole brain that should be discounted, so there are probably some isolated cerebral functions that most would not want to count either. For example, if, hypothetically, an isolated "nest" of cerebral motor neurons were perfused so that if stimulated the body could twitch, that would be a cerebral function, but not a significant one for determining life any more than a brain stem reflex is. Second, in theory some really significant functions such as consciousness might some day be maintainable even without a cerebrum--if, for example, a computer could function as an artificial center for consciousness. The term "cerebral function" adds specificity but is not satisfactory.

The language that seems best if integration of mind and body is what is critical is "irreversible cessation of the capacity for consciousness." That is, after all, what the defenders of the higher brain formulations really have in mind. (If someone were to claim that some other "higher" function is critical, that alternative could simply be plugged in.) As is the case now, the specifics of the criteria and tests for measuring irreversible loss of capacity for consciousness would be left up to the consensus of neurological expertise, even though measuring irreversible loss of capacity for a brain function such as consciousness involves fundamentally nonscientific value judgments. If the community of neurological expertise claims that irreversible loss of consciousness cannot be measured, so be it. We will at least have clarified the concept and set the stage for the day when it can be measured with sufficient accuracy. We have noted, however, that neurologists presently claim they can in fact measure irreversible loss of consciousness accurately.

A second significant change in the definition of death would be required to incorporate the conscience clause. It would permit individuals, while competent, to execute documents choosing alternative definitions of death that are, within reason, not threatening to significant interests of others. While the New Jersey law permits only the alternative of a heart-oriented definition, my proposal, assuming irreversible loss of consciousness were the default definition, would permit choosing either heart-oriented or whole-brain-oriented definitions as alternatives.

The New Jersey law presently permits only competent adults to execute such conscience clauses. This, of course, excludes the possibility of parents choosing alternative definitions for their children. I had long ago proposed that, just as legal surrogates have the right to make medical treatment decisions for their wards provided the decisions are within reason, so they should be permitted to choose alternative definitions of death provided the individual had never expressed a preference. This would, for example, permit Orthodox Jewish parents to require that the state continue to treat their child as alive even though he or she had suffered irreversible loss of consciousness or of total brain function. (Whether the state also requires insurers to continue paying for support of these individuals deemed living is a separate policy issue.) While the New Jersey law tolerates only variation with an explicitly religious basis, I would favor variation based on any conscientiously formulated position.

As a short-cut the law could state that patients who had clearly irreversibly lost consciousness because heart and lung function had stopped could continue to be pronounced dead based on criteria measuring heart and lung function. That this was simply an alternative means for measuring permanent loss of consciousness would have to be set out more clearly than in the present Uniform Determination of Death Act. I see no reason to continue including the alternative measurement in the legal definition. I would simply allow it to fall under the criteria to be articulated by the consensus of experts. This leads to a proposal for a new definition of death, which would read as follows:

An individual who has sustained

irreversible loss of consciousness is

dead. A determination of death

must be made in accordance with

accepted medical standards.

However, no individual shall be

considered dead based on irreversible

loss of consciousness if he or

she, while competent, has explicitly

asked to be pronounced dead

based on irreversible cessation of

all functions of the entire brain or

based on irreversible cessation of

circulatory and respiratory functions.

Unless an individual has, while

competent, selected one of these

definitions of death, the legal

guardian or next of kin (in that

order) may do so. The definition

selected by the individual, legal

guardian or next of kin shall serve

as the definition of death for all

legal purposes.

If one favored only the shift to consciousness as a definition of death without the conscience clause, only paragraph one would be necessary. One could also craft a similar definition using the whole-brain-oriented definition of death as the default definition. Some have proposed an additional paragraph prohibiting a physician with a conflict of interest (such as an interest in the organs of the deceased) from pronouncing death. I am not convinced that paragraph is needed, however.

A Principled Reason for Drawing the Line

It has been puzzling why what at first seemed like a rather minor debate over when a human was dead should have persisted as long as it has. Many thought the definition of death debate was a technical argument that would be resolved in favor of the more fashionable, scientific, and progressive brain-oriented definition as soon as the old romantics attached to the heart died off. It is now clear that something much more complex and more fundamental is at stake. We have been fighting over the question of who has moral standing as a full member of the human moral community, a matter that forces on us some of the most basic questions of human existence: the relation of mind and body, the rights of religious and philosophical minorities, and the meaning of life itself.

I am not certain whether some version of the higher-brain-oriented definition of death will be adopted in any legal jurisdiction anytime soon, but I am convinced that the now old-fashioned whole-brain-oriented definition of death is becoming less and less plausible as we realize that no one really believes that literally all functions of the entire brain must be irreversibly lost for an individual to be dead. Unless there is some public consensus expressed in state or federal law conveying agreement upon exactly which brain functions are insignificant, we will all be vulnerable to a slippery slope in which private practitioners choose for themselves exactly where from the top of the cerebrum to caudal end of the spinal cord to draw the line. There is no principled reason to draw it exactly between the base of the brain and the top of the spine. Better that we have a principled reason for drawing it. To me, the principle is that for human life to be present--that is, for the human to be treated as a member in full standing of the human moral community--there must be integrated functioning of mind and body. That means some version of a higher-brain-oriented formulation.

References

[1.] President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Defining Death: Medical, Legal and Ethical Issues in the Definition of Death (Washington, D.C.: U.S. Government Printing Office, 1981), p. 2. Page numbers for subsequent citations are in the text. [2.] Robert M. Veatch, "The Whole-Brain-Oriented Concept of Death: An Outmoded Philosophical Formulation," Journal of Thanatology 3 (1975): 13-30. [3.] Earl A. Walker et al., "An Appraisal of the Criteria of Cerebral Death: A Summary Statement," JAMA 237 (1977): 982-86, at 983. [4.] James L. Bernat, "How Much of the Brain Must Die on Brain Death?" The Journal of Clinical Ethics 3, no. 1 (1992): 21-26, at 25. [5.] Paul A. Byrne, Sean O'Reilly, and Paul M. Quay, "Brain Death: An Opposing Viewpoint," JAMA 242 (1979): 1985-90. [6.] Cited in Robert M. Veatch, Death, Dying; and the Biological Revolution (New Haven: Yale University Press, 1976), p. 38. [7.] Robert M. Veatch, "Whole-Brain, Neocortical, and Higher Brain Related Concepts," in Death: Beyond Whole-Brain Criteria, ed. Richard M. Zaner (Dordrecht, Holland: D. Reidel Publishing Company, 1988), pp. 171-86. [8.] David J. Cole, "The Reversibility of Death, "Journal of Medical Ethics 18 (1992): 26-30. [9.] Alan D. Shewmon, "Caution in the Definition and Diagnosis of Infant Brain Death," in Medical Ethics: A Guide for Health Professionals, ed. John F. Monagle and David C. Thomasma (Rockville, Md.: Aspen Publishers, 1988), pp. 38-57. [10.] Stephen Ashwal and Sanford Schneider, "Failure of Electroencephalography to Diagnose Brain Death in Comatose Patients," Annals of Neurology 6 (1979): 512-17. [11.] Ronald B. Cranford and Harmon L. Smith, "Some Clinical Distinctions between Brain Death and the Persistent Vegetative State," Ethics in Science and Medicine 6 (Winter 1979): 199-209; Phiroze L. Hansotia, "Persistent Vegetative State," Archives of Neurology 42 (1985): 1048-52. [12.] Council on Scientific Affairs and Council on Ethical and Judicial Affairs, "Persistent Vegetative State and the Decision to Withdraw or Withhold Life Support," JAMA 263 (1990): 426-30, at 428. [13.] President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment: Ethical, Medical, and Legal Issues in Treatment Decisions (Washington, D.C.: U.S. Government Printing Office, 1983), p. 177. [14.] Bernat, "How Much of the Brain Must Die on Brain Death?" pp. 21-26. [15.] Veatch, Death, Dying, and the Biological Revolution, pp. 72-76.
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Author:Veatch, Robert M.
Publication:The Hastings Center Report
Date:Jul 1, 1993
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