F

Definitionand Criteria
of Death
n the evening of March 1,9,2005,the U.S. Congressdid somethingit had
'With
never done before.
time running out on how much longer she could
remain alive, congressionalleadersannouncedthat they would allow the parentsof a
4l.-year-old Florida woman to petition the federal courts to have a feeding tube
replaced for their severelybrain damageddaughter. The next day, President Bush
fler,vback to Washington from his Texas ranch to sign the emergency legislation.

THE

EATH OF TERRI SC

IAVO

"The case of Terri Schiavo raisesco

6," the president had said in a
statementthree days earlier. "Those who live at the mercy of others deserveour
specialcareand concern. It should be our goal asa nation to build a culture of life,
where all Americans are valued, welcomed, and prots6gsd-and that culture of life
must extend to individuals with disabilities."
Fifteen yearsearlier,Terri Schiavohad incurred severeneurological damagewhen
a chemical imbalance stopped her heart, cutting the oxTgen supply to her brain.
Although her entire brain wasnt permanently destroyed,it was severelydamaged.The
26-yeavold was left in what physiciansterm a persistentvegetativestate (PVS). PVS
patients llrrayexhibit spontaneous,involuntary movements such as yawns or faciil,
grimaces.They are sometimesable to breathewithout aid, but are unable to eat or
speak.Their condition is often describedas "awake but unaware,"because,without
higher brain functions, their apparentwakefulnessdoesnot representawareness
of self
or environment.
Like that of other PVS patients, Terri Schiavob condition was considered
permanent and irreversible, but not terminal. With proper care, she could
15

15

CHAPTER 1

continue to live many years, a fate her husband and legal guardian, Michael
Schiavo.didn't rhink she would r,vant.Therefore, Michael requestedthat his wife's
ar:tificial teeding tube be removed. When her Catholic parents, the Schindlers,
objected, the stagewas set for a lengthy legal battle that culminated in a court
order to remove Terri s feeding tube.
Once the feeding tube was removed, evangelicalChristian conservatives
sprang into action, precipitating the congressionalintervention. Exploiting
their pivotal role in reelecting President Bush and swelling Republican
nrajorities in Congress,the "religious right" demanded and obtained emergency iegislation allowing the Schindlersto petition federalcourts to have the
tbeding tube reinserted. The legal tactic failed, however, and Terri Schiavo
died on March 31 , nearly two weeks after the removal of her life-sustaining
feeding tube.
In a messageto supportersand media shortly after her death, Terri Schiavo's
brother was quoted as saying, "Throughout this ordeal we are reminded of the
'Forgive
words ofJesus' messageon the cross:
them for they know not what they
do."' Bobby Schindler's allusion was to the bitter family feud befween the
Schindlersand Michael Schiavo.However, it implied something darker: that Terri
was killed, not just let die.
Most people probably wouldn't agreewith Bobby Schindler that his sisterwas
killed. However, they would likely agree that she was alive when the feeding tube
was removed. Wbs she?Or was she dead long before, as some would argue?Are
the thousandsof patientslike Terri in the U.S. dead or alive?A*y answerdepends
on an understandingof physical death.
This chapterdealswith four main approachesto defining and determining death:
heart-lung, whole brain, higher brain, and brainstem. All of these formulations
'When
assumethat life requiresthe integratedfunctioning of an organism.
that is lost,
so is life. But exactly when that occurs is debatable.Each glves an answer with
implications for morally appropriate treatrnent for patientslike Terri Schiavo.Each
also directs our thinking about bioethical issues,such as abortion, human and fetal
research,cloning, stem cell research,and assisteddeath. One of the four approaches
to death-the higher-brain formulation-is especiallyprovocative. As we will see,it
implies not only that Terri Schiavodied long before March 31 but alsothat many of
the currently ill or disabledare properly considereddead.

TRA

ITIONAL

HEART.LUNG

EFINITION

A terribleauto accidenl.One of the carsis octupietlby a husbandand wfe, Authoritieson

thescene
pronounce
the man deadand rushthe uncctnsciorls
tulmtn to a hospital,ufuereshe
spendsthe next seuenteen
daysin a comadue to seuerebrain damage.On the morningaf
the 18th day shedies.Or did she?Sometinte aftenuard,
a relatiuecontesting
the couple's
estateclaimsthat tlrc two diedsimultanerwsly.
Did they?
In an identical caseabout a half-century r3o, the Supreme Court of Arkansas
ruled that since the Llnconsciouswoman was breathing, she was alive.l In making

IJhFINIIIUI\

ANIJ

LKIITKIA

UI- IJbAIH

its decision, the court relied on a time-honored understandingof death as "the

cessationoflife; the ceasingto exist; defined by physiciansasa total stoppageof the
circulation of blood and a cessationof the animal and vital function consequent
thereon, such as respiration,pulsation, etc."2This can be termed the traditional
definition of death.
Given this understanding, death is to be determined by the permanent
absenceof breathing and heartbeat.This time-hotrored formulation is variously
termed "heart-1ung," "cardiopulmonary," or "cardiorespiratory" definition of
death. It's also called "clinical death." By whatever name, death occurs wheu
circulation and respiration permanently cease.Through the years,diflerent ways
havebeen usedto determine this kind of death,placing a stethoscopeto the chest
and listening for a heartbeatbeing a farniliar one.
Using heart-lung functioning as the criterion of death served well enough
until challenged in the 1960s by two major developments in medicine: (1)
breakthroughs in biotechnology, which is the application of biological research
and techniquesto health care; and (2) advancesin transplantsurgery.

The ChallengePosedby BiomedicalTechnology

Advancesin biotechnology (..g., mechanicalrespiratorsand electronic pacemakers) made it possible to sustain respiration and heartbeat indefinitely in
patients rn'ith head trauma, stroke, or other neurological injuries. This meant
that, according to the traditional formulation of death, individuals who had lost
all brain functions were technically still alive becausethey had respiration and
circulation, albeit artificially maintained. Yet to many-including relatives of
the permanently comatoseand those who cared for them-such personswere
effectiveiy dead.

The ChallengePosedby Transplantation

In December 1967, South African surgeonDr. ChristiaanBarnard (1922-2001)
successfully
transplanteda heart from one human to another.In itself an extraordinary medical achievement, this first-ever heart transplant not only publicized
but alsothe need for heartsand other
exciting developmentsin transplantsurgery-,
organs from ner.vlydead bodies. High on the list of potential organ donors were
circuartificially supportedpatients,that is, ones with dead brains but sr-rstained
lation. But which of these patients qualified as organ donors? Presumably,a
patient with heart-lung function rvasto be consideredalive and, conseqllently,
might not have life-sustainingorgansremoved. To do so would causedeath, and
thus is nurder. So would ending the patient'slife in order to harvesther organs.
Fearing crirninal or civil liability-itself part of the larger concerll of medical
researchers
and biomedical institutionsover legalliability'-physicians pressedfor
a reconsiderationof the traditionalheart-lungformulation of death.Beyond these
legal considerations,artificially supported patientswho cor"rldbe declar:eddead
offered the desirableprospectof blood-circulatingorgansright up to the time of
removal.

18

CHAPTER 1

ITION
To deal with the challengesposed-by these new developmentsin medicine, an Ad
Hoc Committee of the Harvard Medical School was formed in the 1960s.In 1968,
the Committee proposeda new formulation of death, one basedon brain function.
In the traditional vieW if and only if heart-lung function was permanently lost
rnight a patient be declared dead. In contrast, the Ad Hoc Committee said the
permanent lossof all functions of the whole brain was enough for declaring death.
In other words, patientscould be declareddead when the entire brain irreversibly
ceasedfunctioning. Such a nonfunctioning brain was interpreted as exhibiting:
unreceptiviry and unresponsivityto applied stirnuli and inner need
2. lack of movement and breathing for at least one hour while being observed
continuously by Physicians
\_
/.
movement
eye
or
blinking
as
such
reflex
action,
of
lack
l.
)
/
(-\'--/
For a confirmatory test of this approach, the Comntttte{recomtnended the
use of an electro-encephalograph(EEG), where a flat electro-encephalogram
would confirm a permanently nonfunctioning brain.
A 1981 presidentialcommissionreport titled "Defining Death" reinforced this
alternative formulation of death by proposing what becatne the Uniform Deter.With
the UDI)A, the second legal standard of
mination of Death Act (IJDDA).
death throughout the U.S. was born: irreversiblecessationof all functions of the
entire brain, both cerebellum and brainstem.This is called "whole brain death" or
simply "brain death." (PVS patientssuch as Schiavoare not consideredbrain dead
since it is only their higher brain, not their entire brain, that hasirreversiblyceased
t.

functionitg.)
Currently both approachesto death-heart-lung and whole-brain-are used
throughout the U.S. An individual, including one artificially supported, can be
declared dead who has sustainedirreversible loss of either (1) circulatory and
respiratoryfunctions, or (2) anfunctions of the entire brain, including the brainstem.
Although generally welcomed by transplantation units and health care facilities, the new whole-brain definition of death continuesto draw fire from theorists
who prefer the heart-lung approach.The debate suggeststhat while sciencecan
deternrine that the heart and lungs or the brain have permanently ceasedto
function, medical factsalone cannot determine if a patient in such a condition is to
be determined dead. That is a valuejudgment inevitably shapedby philosophical,
ethical, religious, legal, and public policy considerations.a

CHALLENGES TO THE WHOLE.BRAIN

FORMULATION
Currently there are three major challenges to the whole-brain formulation of
death. They are, according to the preferred formulation of death: (1) traditional
heart-lung, (2) higher-brain, or (3) brainstem. (Higher*brain and brainstem

utrFtt\t

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ttrKrA

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represent two additional approachesto death, rnaking-with

whole-brain-four in all.)

heart-lung and

Returnto the Heart-LungFormulation

One assumption of the whole-brain definition is that when irreparable brain
damageis more or lesstotal to the whole brain, both cerebralcortex and brainstem, individuals cannot possibly return to spontaneous,respirator-fiee body
activify. This accountsfor the Ad Hoc Comrnittee',suse of the term "brain-death,"
that is, death according to a neurological or cortical as opposed to a cardiopulmonary criterion.
However, some traditionalistsreject the committee's reliance on spontaneous respiration,a brainstemfunction, claiming that artificially sustainedlife is
life nonetheless.Others consider the loss of the central nervous system,even of
brain function, as irrelevant to the task of defining death. Breathing and blood
flow; they point out, are not subsystemsthat, like the growth of hair or nails,
function locally and display biochemical activity for themselves.They are,
rather, activitieswhose function extendsthroughout the total systemand insures
the preservationof other parts. This would make circulation and respiration at
leastasimportant asbrain activity-perhaps nlore important, sincebrain activity
dependson them. Still others contend that a distinct line between life and death
cannot be drawn.
Although such criticisrns of whole-brain death have been invoked over the
yearsto revitalize the heart-lurrg definition, the traditional cardiopuhnonary formulation is rarely used today in the U.S. as the exclusive criterion of death.
Notable exceptions are found among sorne orthodox Jews and fundamentalist
Christians who view heart-lung as the only criterion fuily respectful of Godcreated human life and consistentwith biblical teaching. It was this view that
fueled the last-ditch efforts to maintain Terri Schiavo.

Adopt
Considerationsof brain statecertainly have expandedthe definition of death. Still,
the whole-brain death formulation doesn't go far enor-rghto suit scientistsand
philosophers who don't see why all functions of the entire brain have to be
perrnanently lost before death nlay be declared.$fhy not merely the perlnanent
loss of higher functions, such as consciousness,
thought, and feeling? By this
standard,a patient could be declareddeadr.vithbrain functions that have no role in
sponsoringconsciousness,
such as brainstemreflexes.
If adopted, a higher*brain criterion cor-rld nake the irreversible loss of
functioninginthecer@eprirnaryphysio1ogica1star:dardfordefirring
death, since it is the@rebral ryrte) whergrn iies the c
=e qi-olrtlfe,
conmon1yviewedastrsib1e1ossofthecer.ebral
cortex nleans
s of the capi;@sness.
Significantiy,
this higher-brain standardcan be met prior to r,vhole-braindeath, which must
include death of the brainstern,that part of the brain that allows spontaneolls

20

CHAPTER 1

A patient in a permanent coma,

breathing and heartbeatbut not consciousness.
then, or one who, Iike Schiavo,is awake but unaware,would meet the higherbrain but not the whole-brain standardof death.By the higher-brain formulation,
therefore, thousandsof patients currently being maintained in the U.S. could be
declareddead. In contrast,they must be consideredalive by either the whole-brain
or the heart-lung approaches.
Consider the caseof Sunny von Bulow, whose husband,Claus,was accused
of trying to kill her with an overdoseof insulin rn 1,982 The casewas the basis
of the movie Reuersalof Fortune.Sunny von Bulow is still being maintained in an
irreversible coma with such brain damage that, according to experts, she will
Still, she can breathe on her own. Her eyes occanever regain consciolrsness.
sionally open and she shows sleep-wakesequences.So, is she alive or dead?By
alive. By another-higher-brain-she's
one interpretation-whole-brain-she's
dead, and has been since 1,982. By the same measure, Terri Schiavo died

ir 1990.
Adopt a BrainstemFormulation
Another view acceptsthe validiry of declaring death on neurological grounds but
contends that a permanently non-functioning brainstem, ordinarily determined
by simple, low-tech, bedside testssuch as checking the pupils, is alwaysadequate
for determining death. Proponents are led to this view by the fact that consciousnessaswell as heart and lung function depend on a functioning brainstem.
This makesthe brainstem-deaddead,regardlessof cardiacprognosis,becausethey
are irreversibly unconscious and apneic.5'6
Its supporters claim that a brainstem formulation offers advantagesover both
the higher-brain and whole-brain definitions. First, spontaneously breathing
vegetative patients such as Schiavo would be considered alive, thus avoiding the
cultural problems of the higher-brain formulation, by which such patients would
be declared dead. Second, the brainstem formulation avoids conunon objections
to whole-brain death that some patients declared "brain dead" in fact retain
neuronal life above the level of the brainstem.T
Heart-lung, higher-brain, and brainstem formulations, all directly challenge
whole-brain death. But like whole-brain, heart-lung and brainstem formulations
are biological concepts, whereas higher-brain is psycho-social.It is the higherbrain formulation, therefore, that uniquely calls into question whole-brain's fundamental conception of death itself. (Seechart.)

Definition of Death

Biological(schiavois alive)

Heart-lung

Whole-brain

Higher-brain
Brainstem

(Schiavois dead)
Psycho-Social

THE BIOLOG ICAL VS. PSYCHO.SOCIAL

ORGANISMS

DEBATE:

VS. PERSONS

According to the heart-lung, whole-brain, or brainstemdefinitions,individuals are

dead when they have permanently lost what is essentialto them asan organismrespirationand circulation, all brain activiry or simply brainstemfunction. By any
of theseformulations, then, death is strictly rn orgrnismic or a biological concept.s
death with the irreversibleloss
The higher-brain definition, in contrast,associates
of what is essentialto an individual as a person-for example, consciousnessor
cognition-notjust asa biological organism.This makesdeath a psychologicaland
socialconcept.
Is the death of a human being rightly understood only biologically, as the
permanent loss of functioning of an organism as a whole? Or may it also and
perhapsbetter be understood psychologicallyand socially,as, for exarnple,the
we say
or the capacityfor consciousness?'When
permanentlossof consciousness
that someone is dead, precisely wh at arelve referring to-merely a biological
organism that has permanently ceasedto function; or something more, perhaps
an entity that has permanently lost capacitiesuniquely human? These abstract
metaphysicalquestionshave seriousclinical and moral implications. They force
us to ask about the status-alive or dead-of patientswho have pernanently lost
all brain functions and are being maintained arti{icially by respirators or other
life support systems.Specifically,what arewe to sayof the estimated40,000 PVS
patients in the U.S. currently being maintained at an annual cost of billions of
dollars?eWhat is morally appropriate treatment for such patients?

Deathof the organism:A BiologicalPerspective

The 1981 President'sCommission said that the statusof such patientsshould not
alter our understandingof death as the permanent cessationof the functioning of
the organism as a whole.
The Commission pointed out, first, the lossof all brain functions permanently
disrupts the integrated functioning of heart, lungs, and brain. There can be no
,ponirneous breathing, the heart will soon stop, and the organism as a whole will
die. So, although the Comndssion recognizedwhole-brain death, it didnt depart
from the traditional biological or organismic understandingof death.l')
Second,the Comnrissionsaidthat the m.anythousandsof PVS patientsare alive
because even though they are pernlanently unaware they still exhibit integrated
functioning of brain, heart, and lungs. So long asthere is integratedfunctioning of
the circulatory respiratory and central nervous systern,then, the "organism as a
whole" is alive. But the Commission emphasized that thesecasesof "partial brain
irnpairment" (sr-rchas Schiavo)must be distinguishedfron casesof "complete and
irreversibleloss of brain function." Specifically,it said:
The President's Commission. . .regards the cessation of the vital
functions of the entire brain-and not merely portions thereof, such
as those responsiblefor the cognitive functioning-as the only proper

22

CHAPTER 1

accordswith the
neurological basisfor declaring death. This conclusion
experts and the Public.
overwhelmi'g consensusof riedicar and legal
ago
may not be as"overwhelming" asit was a quarter-century
T'da,v the corrsensLrs
understandingof death as the perbut it srill sta'ds, support..t by the traditional
organisrnas a whole. For heart-lung,
'ranent cessationof the f,rrr.tloning of the
pvs
patientssuch asTerri Schiavoare
whole-brain, and brainstemtheorisls,then,
of the most important organic
srill alirresince they exhibit integrated functioning
spontaneousheartbeat, and normal
snbsysterns,such as temperar.rrJregulation,
blood pressllre.
dead. They have perTo higher-brain theorists, however, these patients are
may be alive,but socially
manerrly ceasedto fu'ction aspersons.Biologically they
and psychologicallY,theY're not'

Perspective
Death of the Person:A Psycho-Social
object to the
Despite its widespreadendorsement,a growing number of theorists
as some
death,
whole-brain standard,-not becauseit goes too {ar in defining
traditionalistsclaim, but becauseit doesn't go far enough'
such
Higher-brain enthusiastssay that whatever makes us uniquely human,
death'
human
as consciousnessand cognition, is what matters in determining
patients
Without awareness,without being able to think, reason,or remember,
as persons'
such as Terri Schiavo or Sunny von Bulow can't ever function
They're dead.
by this account, then, the whole-brain standardof death rnay adequately
Fluman
capture the death of non-human animals, but not a human death.
persons'
b.ing, are dead, say higher-brain theorists, when they are no longer
functions.
And that means *hen there is irreversible loss of higher brain
'Without
higher brain functions, rhere can be no integration of the mind and
standard,
body and, thus, no basisfor assertingthat human tife is present.By this
dead'
since
Schiavowas a costly tempest in a teapot, since the subject was long
at
The samecan be said of the many similar patientscurrently being maintained
considerablecost.
is that
It's worth noting that not all higher-brain theoristsare agreedon what it
for a
is essentialto us as persors-what, metaphysicallyspeaking, is necessary
purposely
human being to be a person. This is why they sometimesemploy the
the key
ambiguous term "higher brain function." It's "a way to make clear that
says
philJsophical issueis which of the many brain functions are really important,"
is it
bioethicist Robert Veatch.ll So, this makesthe key question:'W.hatexactly
me is
that has lost life or ceasedto be when we say that someone like you or
ordinarily
dead?12Th"t question starkly contrastswith the procedural one that
who
monopolizes ."r., such asSchiavo,namely: "-W'hatdoesthe patient want and
is entitled to say?"
Although ift. higher-brain school of thought has attracted a considerable
following, it has alsoattracredcritics of its psycho-social,person-basedperspective
of death.

uErll\l

I lLrl\

Al\u

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View
Problemswith the Person-Based
Philosopher David DeGruzia has identified what he calls some "irresolvabletenhigher-brain concept of human death.13
sions" with the person-based,
First of all, saysDeG razia,human beingsundoubtedly are organismsaswell as
'What,
then, are
persons,which rreans that biological death still appliesto humans.
we to make of permanently unconsciottspatients?Are they dead as personsbut
alive as organisms?Doesn't the person-based,higher-brain vielv imply two deaths
for a single human being: one of the person and a later of the organism?"This is
somewhatodd," DeGraziawrites, "si.ncewe are accustomedto believing that there
is just one death associatedwith every human being."
Another conceptualproblem relatesto the meaningof "personhood."Because
philosophersare not agreed on what constitutespersonhood, any higher-brain
standardthat relies on a concept of it will prove controversial.More troublesome,
the unsettlednature of personhood has grave,practical implications, as evident irt
DeGrazia's most serious objection to the higher-brain standard: the "slippery
teetering.
slope" upon which he seesthe person-perspective
DeGrazia fearsthat defining death asloss of personhood invites an expansion
of those humansto be counted as dead,sincepersonhoodis generallythought to
Indeed, today's
or the capacttyfor consciousness.
require more than consciousness
bioethicists generallv associate"person" with rational attributes or sentience.
W'hatever the character(s)of a person, presumably conscious individuals who
lacked it (or thern) are to be considered dead. Aurong these patients certainly
would be ones like Schiavo, but probably also: disabled adults and children,
including Parkinson'sand Nzheimer's patients;the mentally il1 and retarded;and
the fiail elderlv.

RePIY
The Person-Based
For their part, person-based,higher-brain theoristssay that critics like DeGnzia
miss the point.
-W'hen
we permanently lose consciousness,we lose the possibiliry of any
meaningfr-rlexistence,including any m.eaningfulproposed candidate of person'We
have r1o sellawareness,for example, or senseof personalidentity-no
hood.
senseof a self that persistsfiom one moment to the next. We can't think, evaluate,
'W'e
'We
can't speak,think, feel, work, or play.
have no socialexistence.
or choose.
'We
"'What
possiblenteaning and value can life have under
cap't befriend or love.
person-basedtheoristsask. Besides,as Veatch points out,
such circumstances?"
even if there are living human beings rvho don't satisft the var:iollscotlcepts of
personhood, "as long as the larv is only discussingwhether sonleone is a living
14
individual, the debate over personhood [and p.rrorrrl identiry] is irrelevant."
Higher-brain theorists respond further that it is only fiom a biological or
organismicperspectivethat an individr-ralappearsto die twice. There is, in fact,
only one cleath,regardlessof rvhateverbiological or minor brain functions might
be present.Terri Schiavodidn't die trvice, she died ollce-not on March 25,,2005,
brain damage.Sunny von
but 15 years earlier when she incurred c:rtastr:ophic

24

CHAPTER 1

Bulow r,villnot have died twice. She died back tn 1,982.What is being maintained
in a Manhattan hospital is a breathing cadaver,albeit a fabulouslywealthy one. To
talk about "two deaths,"then, is to beg the question,which is simply whether the
higher-brain standard is preferable to the whole-brain standard.And since ar:r
uncovered r,vhole-brainstandardalwaysrevealshigher-brain functions such asselfawarenessor rationalify, then why not define death by reference to the higherbrain standard?
As for potential abuses,Veatch, for one, thinks that it is the whole-brain
formulation of death that standson the slippery slope,not the higher-brain. After
all, he says,for no good reasonwhole-brain effectivelydraws "a sharpline berween
the top of the spinal cord and the baseof the brain (i..., the bottom of the brain
stem)," thereby discounting the significanceof any spinal reflexes.But if spinal
reflexes can be ignored in determining death, then why can't some brainstem
reflexes as well? Why can't the wincing and tearing of patients like Schiavo, for
example?The rypical reply is that brainstem reflexesare more integrative of bodily
'function,
and, so long as the central nervous system can retain the capaciryfor
integration, a person is alive. But Veatch doubts that brainstem reflexesare more
integrative of bodily function than spinal reflexes. "-W'hateverprinciple could be
usedto exclude the spinalreflexes,"he writes, "surely can exclude some brain stem
reflexes as well."
By contrast,Veatchinsiststhat defendersof the higher-brain formulation, like
himself, in fact are avoiding the slipperinessby relying on
classicalJudeo-Christian notions that the human is essentially the
integration of the mind and body and that the existenceof one without
the other is not suflicient to constitute a living human being. Such a
principle providesa bright line that would clearly distinguishthe total.and
irreversible loss of consciousnessfrom serious but not total mental
impairments.l5
Other defenders of the higher-btaun, person-basedposition have taken a less
technical, more pragmaticapproachto the whole-brain/higher-brain debate.One,
philosopher Martin Benjamin, simply asks which conception of the human
individual makesmore sense?He believesthere are power{ul practical reasonsfor
understandinghuman beings as persons,not merely as biological organisms.For
one thing, such a view jibes with what really matters to us about human life and
death: opportunities for acting and enjoying. Death makes all of this experience
impossible;that's why it's a great loss.
Benjamin is also troubled by the fact that the whole-brain formulation
effectively leavespatientswho are in need of new heartsand livers waiting for the
organs of PVS patients until the latter meet the UDDA. But by then their hearts
and livers may no longer be suitable for transplantation.The same issue arises
with the estimated1,000 to 2,000 babiesborn annually in the U.S. with anencephaly,the total or near total absenceof the cerebralhemisph.r..tu Arr..r..phalic infants who aren't stillborn generally don't live longer than a few weeks. In
some casestheir kidneys and hearts,though undeveloped,could be transplanted
to other infants who might die without them. For the transplantsto have a

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reasonablechance of success,however, they need to be taken fiom theseinfants

before they rneet the criteria of whole-brain death.But even if the parentsof the
anencephalicinfant agreesto the transplant,the lar,vdoesnot permit this sort of
organ donation.
Beyond the matter of transplants,higher-brain theorists such as Benjanr.in
hope that a shift from mainly a biological to a psycho-sociologicalconception of
death may help settlean affay of bioethical issues,including abortion, ernbryo and
stem cell research,euthanasia,and assistedsuicide.tt Br;t critics worry about the
implications. Imagine a sociery they suggest,where adult human non-personsperhapsParkinsonb patients or the mentally retarded-could be used in experimental research.

LINGERTNG

QUESTIONS

ABOUT

BRAIN-DEATH

Besidesinviting a spirited responsefrom higher-brain theorists,the current wholebrain formulation of death continues to be criticized for being conceptually
confusing and even harmful. Adding to the critical mix are the voices of those
who saythat any biologically baseddefinition fails to understandthat death is not
an event but a process.Such are alnong the concerns that today swirl around
brain-death.

Definitionor Perrnission?
The "Report of the Harvard Committee to Examine the Definition of Brain
psxgh"-1he ofEcial subtitle of the Harvard Committee's 1968 report impliesthat the committee was proposing an alternativedefinition of death. In the eyesof
its supportersand many of its detractors,it did precisely that. For them the only
issue involves the relative breadth of that definition. But amidst the critics is
another school of thought, one that views the report as offering not a necessary
new definition of death but criteria for permitting death to occur unopposed.
The concern of the Harvard Committee, it should be remembered, was
plainly physiological, specificallywith (1) the irreversible loss of reflex activiry
mediated through the brain or spinal cord, with (2) electrical activity in the
cerebralneocort ex, and/or with (3) cer:ebralblood flow. On the basisof rnedical
facts-such as reflex activiry and cerebralblood flow-the Comnrittee advocated
whole-brain criteria for determining death. Becauseof its emphasison organic
integration as defining life, whole-brain enthusiastsread in the criteria a new
definition of death, "brain death." On the other hand, Committee reference to
personality,or mental activity permitted otirers to read a higherconscionsness,
brain definition in the criteria. By conflating criteria and definition, the Cotnmittee set the stagefor conceptualconfusion.ls
The problern is that a definition of death cannot be derived from medical facts
alone, as evidenced by the wlrole-brain/higher-brain dispute. Each side, for'
example, gerlerallyagreeson the medical facts in a PVS case,but dispute the
'it,
!a':

i.
fiir

26

CHAPTER 1

meaning of these facts-how they're best interpreted. For psycho-socialreasons,

higher-brain theorists believe that the medical facts determine that the patient is
dead. For biological reasonswhole-brain theoristsbelieve that the patient is still
alive. These opposedviewpoints leavelittle doubt that a definition of death is, at
base,a philosophical (and legal) issue,not a medical one.
Now, if the medical factsin thesecasesinvite interpretation, who is to saythat
the interpretation must necessarilyfavor one or the other, whole-brain or higherbrain orientations?Perhapsthe facts are best interpreted strictly as criteria that do
not define death but permit it to take place. If so, then what the Harvard
Committee proposed, unintentionally perhaps, was not a set of conditions for
determining death but for allowing it to occllr. By this account, the Committee
and, later the President'sCommission, wasn't addressingthe question of whether
patients with irreversible loss of the entire brain are dead but rather how such
parients should be dealt with. They were really saying-or should be viewed as
saying-not that such patients are dead, but that they may be allowed to die, by
'turning
off a respirator,for example.
The differencebetween definition and permissionin these mattersis morally
important, for once patientsare declareddead-as in "brain dead"-1hsn they are
no longer personswith certain moral and legal rights. They're corpses.And as
corpsesthey can be treated,in the words ofphilosopher FlansJonas,however "law
will or next of kin permit and sundry interestsurge
or custom or the deceased's
doing with a corpse." Once assuredwe're dealing with a corpse, for example,
what's to stop us from maintaining the body in an artificially animated state as a
source for life-fresh organs-as a "plant for manufacturing hormones or other
biochemical compounds.. .a self-replenishingblood bank?"le
Jonashappensto believe that a patient with irreversiblelossof the entire brain
is nonethelessa patienl,-{(ayl organismas a whole minus'the brain, maintained
in some partial state of life so long as the respirator and other artifices are at
work." Therefore, for him the question is not "Is the patient dead?" but "FIow
should the patient be dealt with?" This latter moral question is basicallyasking:
"Are we justified, let alone obligated, in artificially supporting the life of a
brainless body?" No, say Jonas and others like him, while whole-brain and
higher-brain enthusiaststreat the question as moot, since in their views the
patient is already dead.

Helpor Harm?
Although Hans Jonas rejected the Harvard criteria as a definition of death, he at
leastviewed the criteria as establishingneeded ground rules in our modern, hightech era for withdrawing life support. Others have been lesscharitable.
As early as the 1970s and 1980s, some critics were calling the Harvard
criteria unnecessaryand harmful. One of them, physician/bioethicistNorman
Fost, recently revisitedthe issue.He hasconcluded that eventsover the last three
decadesprove that the new definition has failed its main original social purposesof
(1) ending medically worthless treatment and (2) improving organ supply.Fost says:

Overtreatment-the continuation of life-sustainingtreatment on patients

who have no reasonableprospectsfor meaningfirl survival and often no clear
interestin or desirefor such treatment-seenr.sfar more widespreadtoday
than in 1968, vu'henthe redefinition was proposedas the solution to that
problem. . . [and] organ supply lagsfurther and further behind demand.20
Supporting Fost'ssecondpoint: Currently, of the approximately75,000 people on
waiting lists for organ transplantations,less than a third will receive the needed
organ. Nationwide, an averageof five people a day die awaiting liver transplants
alone.2l Compounding things, according to Fost, the statuteshave made it very
difficult to develop sensible,coherent policies and practiceson withholding and
withdrawing life support from a wide range of patients as well as to have a more
rational policy of organ procurement involving a much broader population of
patients than those who are "brain dead." Consider, for example, non-heartbeating cadavers(NHBCs).
Non-Heart-Beating Cadavers Brain criteria are used in most organ procurement centers.Still, many centerswill remove organsfrom patients declareddead
by traditional heart-lung crite rr^." This practice, done with appropriate patient
consent(..g., do not resuscitateor DNR orders),makesfor a quick pronouncement
of death and a rapid, dam,age-minimizingremoval of organsfrom deadbodies.But
in some cases,this procedure has been refined to a controversialdegree.
For example, under the so-called Pittsburgh protocol, in place at the University of Pittsburgh Medical Center since 1992, a consentinglife-support patient
is taken to the operating room and disconnectedfrom life support, leading usually
to cardiacarrest." Sirr." the patient has executeda valid DNR order, no attempt
to resuscitatehim is made. After the heart stopsfunctioning for two minutes death
is declared,despite any brain functions, on the basisof "irreversible cessationof
circulatory and respiratory functions."24The body can then be artificially supported to insure fresh organs.
Alexander Capron, a professoroflaw and medicine, aswell asthe chief theorist
in the President'sCommission, views the Pittsburgh protocol as a flat-out contradiction of the UDDA. He says,"The failure to attempt to restore circr-rlatory
and respiratory functions in these patients preventslawfully declaring that death
'we
choose not
has occurred becauseirreversibiliry must mean more than sirnply
to reverse,although we might have succeeded."'25
Does the Pittsburgh protocol violate the sacrosanct"dead*donor-rule," the
principle that prohibits the removalof vital organsfrom donors prior to their death?
Or does it not, since NHBCs are dead according to the whole-brain definition?
Currently a patient may be deternr.ineddeadby one standardbut alive by the other.
Reason enough, according to sonle theorists,fo. single standardof death,
holding that irreversiblecessationof all function of the entire brain is the
death of the person and that one can know that indirectly by circulatory
cessationor directly by examination of the brain and its functioning.
Then the error would be obvious for those who wrongly believe that

28

c H A P T E R1
cessationof spontaneousheartbeatfor 2 rninutes allows them to declare
the person dead and to place the body on artificially supported
circulati on.to

Eventor Process?
Any biologically baseddefinition of death views death as an event in which the biological organismpermanently ceasesto function. It is further assumedthat a single
criterion-heart-lung, entire brain, and brainstem-demarcatesthe moment of death.
But some bioethicists believe that it nlay be irnpossibleto pinpoint a single
criterion of human death because death (or dying) in our high-tech medical
environment is lessan event than a processthat defiesdemarcationby t singlepoint.
At various points along the way, capacities-respiratory hormonal, and cardiac-are
compromised and must be supported. Does it make sense,then, to say that the
organism died at some specificpoint in this process?Isn't it more reasonableto say
that "the organism was fully alive before the chain of eventsbega!, is fully dead by the
end of the chain of events,and is neither during the process."27
Still, there are important questions that demand specificify about when the
organism actually died. When can life support be withdrawn, organsbe harvested,
or the body be cremated?In 2003, the Michigan StateCourt of Appealsupheld a
2001,ruling allowing a divorce for a woman comatosesince a L994 auto accident.
The woman had filed for divorce several times but had not followed through.
Friends said that the woman, who had a $1.5 million dollar estate,planned to file
again but was prevented by the accident. After she was hospitalized,her brother
and legal guardianpressedthe case.In the court's eyes,obviously,the woman was
a1ive,that is, shehadn't reachedthat point that marks the moment of death.Absent
this assumption,how would the court possibly decide such a case?

coNcLusloNs
Although the whole-brain definition is widely endorsedin the U.S., it isn't surprising that disagreementcontinues about both a single definition and criterion.
'With
conceptual issues,death no exception, much dependson the observer.
As we will see in the chaptersahead, our understandingof death, including
our attitudes and feelings towards it, reflect our basic beliefs about life itself,
including our nature and destiny.On these matters people differ, even people of
similar backgrounds.
Recall, again, the Schiavo case,where people of strong religious faith, even
within the samereligion, were divided. For some of them, Terri Schiavo'slife had
value and digniry regardlessof her condition. She was a person, albeit a vegetative
one. Since she had biological vitaliry, her iife had sanctiry.For others of equal faith,
Terri Schiavo'slife had passedinto mere existence.For them it rvasn'tbiological
life that mattered, but its qualiry. Tiue, they didn't say she was a non-person, at
least not publicly, but they obviously were mostly concerned with her statusas a
person, as were the rnajoriry of Americans, according to polls.

utt-tNttlul\

Al\u

LKrttKtA

ut- utAtH

As advancedmedical technology increasinglyblurs the distinction between

living and merely existing, the person-basedapproach to death will continue to
bedevil us. To ignore qr-ralityof life seenrswildly unrealistic, even cruel and
immoral. But the samemight be saidof labelingGrandmaa "non-person" because
she has Alzheimer's disease.
For its paft, the prer,'ailingwhole*brain formulation of death is not conceptually coherent. The Pittsburghprotocol, for exarnple,showsthat a patient may
be determined deadby one standard(brain)but alive by the other (heart-lung).No
r,vonderbioethicistsare concerned about potential violation of the dead-donor
rule, aswell asthe cornerstoneprinciple of nr.edicalethics, "Do no harm," asboth
apply to living patientswho are potential organ donors.
casescoveredby a Pittsburgh-like protocol are rare,
It is true that, aggregately',
overwhelmingly outnumbered by deathsnot requiring scientificallypreciseassays.
Indeed, that the practice goes on at all may suggestthat the whole-brain formulation has succeededin an initial goal of the Harvard Comrnittee: providing
physicianslegal protection they otherwise would lack, and without which there
would be fewer transplantations.Still, prior to a brain-death statute,severalstates,
'W.isconsin,
notably
were quietly and successfullyprocuring organs frotn patients
who were not brain dead by prevaiiing standards.Furthermore, it isn't by any
means certain that the statute,a new definition of death, has significantly affected
organ procurement.28
Beyond expediting transplantationsand providing physicianslegal protections,
the new whole-brain statutesupposedlywas neededto facilitatediscontinuationof
life support. There, too, the record is uneven. Brain-dead patientssometimeshave
been maintained at the family'sinsistence.Also, in somejurisdictions the physician
may declaredeath when the brain is dead but is not required to. This seemingly
would give the physician,perhapstogether with the family, the legal discretion to
declare death, thereby leading not only to conflicting decisions in medically
identical casesbut possiblyto a prolongation of suffering. Then there are casesin
which cultural considerationshave been ignored once the brain death has been
studentswho had been shot were
determined.In 1994, for example,two Japanese
declaredbrain dead under California law notwithstanding that their parentslived
in Japan,where brain criteria for cleathpronouncenlent are not reco gnrzed.2e
The failure to reach consensusabout death has led some theoriststo back a
public policy that would implicitly acknowledge mr,rltiple,valid definitions of
death. From these,patients or: their legai surrogatescor-rldchoose according to
their own values and philosophies.New Jersey,for example, operatesunder a
whole-brain formulation of death but permits patients for religious reasoltsto
chooseheart-lung criteria. Some saythat offering a mellu of options-heart*1ung,
whole-brain, higher-brain-wou1d rnaximize personal freedonl, squarewith the
natltre and ideals of a democratic and pluralistic society, and expedite organ
transplantsby decrirninalizing casesthat today are consideredkilling, rS with PVS
patientsand anencephalicnervborlts.
Others see only confusion and controversyin such a "cafeteria" p1an.They
doubt that the general public would grasp,iet aloue embrace. the valiclity of
nrultiple meanings of death. LJnacceptableto the lnany who vierv death as a

30

CHAPTER 1

profoundly spiritual event would be the implicit secular notion of reducing its
'just
another" choice. Then there are the practical matters raisedby
definition to
conscientious choice, including insurance coverage and impact on heath care
professionalswho may consider the option selectedinappropriate.
Such concerns have brought some theorists to feel that, perhaps,legal and
social issuesare best viewed as separateand distinct points in the processof dying
that allow, even require, different answers. Accordingly, they propose "decoupling" or separatingsuch mattersfrom a determination of death. For example,life
support might be withdrawn when higher brain function is permanently lost,
whereas organs might be removed when the entire brain ceasesto function.
Neither decision, however, applies a single criterion of death justified by some
definition of death. Circumstancerules: the best use of resources,for example,in
the caseof withdrawing life support; the greatestnumber or organsappropriately
'While
such a position avoids the
harvestable,in the case of organ removal.
as potentially divisive:
{r,e'y
raise
another
it
multiple
definitions,
of
. problems
voiding the dead-donor rule. In any event, decoupling theorists strongly oppose
the conscientious choice mode1, generally preferring the current whole-brain
formulation as a default position to their own.
Defining and establishingcriteria of death clearly remain problematic, inevitably inviting difterent approachesand defenses.Ultimately, it may be enough to
accept death as "the permanent and irreversiblecessationof the relevantaspectsof
life, where different accounts select different aspectsas relevant."30

REFERENCES
1. Smithu. Smith,229 Arkansas579, 317 S.'W.,2d 275, 1958.
2. Ned Block, Owen Flanagan,and Guven Guzeldere,eds., The I'latureof ConsciousDebates,Cambridge, MA: MIT Press,1997, p. 488.
ness:Pldlosophical
BaltimoreJohns
in America:Originsand Cultural Politics,
3. Tina M. L. Stevens,Bioethics
Hopkins Press,2003.
4. Robert M. Veatch, "The ConscienceClause," in The Dejnition of Death:
Stuart Youngner, Robert M. Arnold, and Renie SchaContemporary
Controuersies,
piro, eds.,Baltirnore:Johns Hopkins (Jniversity Press,1999, p. 140.
5. Fred Plum, "Clinical Standardsand Technological Confirmatory Tests in Diagnosing Brain Death," tn The Definitionof Death, pp. 34-69.
6. Chris Pallis, "On the Brainstem Criterion of Death," ir The Defnition of Death:
Contemporary
Controuersies,
Stuart Youngner and others, eds.,Baltimore: Johns
Hopkins universiry Press,1999, pp. 93-100.
7. Ibid.,p. 95.
8. David DeGrazia, "Biology, Consciousness
, and the Definition of Death," Report
from the Instituteof Philosophy& PublicPolicy.Retrieved March 2,2005, from http:/ /
www. p Llaf.u md. edu / I PPP/ w tnterg8b io Io gy-c o nsci o usn ess.htm.
9. Maura Dolan, "Out ofa Corna, Into a Twilight," LosAngelesTimes,January2,2001,,
p. A1.