Controversies in the determination of death: the philosophical debate: President's Council on Bioethics.

• Position: Verbatim

Why do we describe the central question of this inquiry as a philosophical question? We do so, in part, because this question cannot be settled by appealing exclusively to clinical or pathophysiological facts. Those facts were our focus in the previous chapters in which we sought to clarify important features of "total brain failure," a condition diagnosed in a well-defined subset of comatose, ventilator-dependent patients. As a condition, it is the terminus of a course of pathophysiological events, the effects of which account for certain clinically observable signs (all manifestations of an incapacitated brainstem) and for confirmatory results obtained through selected imaging tests. A patient diagnosed with this condition will never recover brain-dependent functions, including the capacity to breathe and the capacity to exhibit even minimal signs of conscious life. If the patient is sustained with lifesupporting technologies, this condition need not lead immediately to somatic disintegration or failure of other organ systems. These facts are all crucial to answering the question, Is a human being with total brain failure dead? But determining the significance of these facts presents challenges for philosophical analysis and interpretation.

In this chapter, we set forth and explore two positions on this philosophical question. One position rejects the widely accepted consensus that the current neurological standard is an ethically valid one for determining death. The other position defends the consensus, taking the challenges posed in recent years as opportunities to strengthen the philosophical rationale for the neurological standard.

At the outset, it is important to note what is common to these two opposing positions. First, both reject the idea that death should be treated [50] merely as a legal construct or as a matter of social agreement. Instead, both embrace the idea that a standard for determining death must be defensible on biological as well as philosophical grounds. That is to say, both positions respect the biological reality of death. At some point, after all, certainty that a body is no longer a living whole is attainable. The impressive technological advances of the last several decades have done nothing to alter the reality of death, even if they have complicated the task of judging whether and when death has occurred in particular circumstances. In light of such complications, however, both positions share the conclusion that a human being who is not known to be dead should be considered alive.

Second, neither position advocates loosening the standards for determining death on the basis of currently known clinical and pathophysiological facts. There is a well-developed third philosophical position that is often considered alongside the two that are the main focus of this chapter. This third position maintains that there can be two deaths--the death of the person, a being distinguished by the capacities for thought, reason, and feeling, and the death of the body or the organism. From the perspective of this third philosophical position, an individual who suffers a brain injury that leaves him incapacitated with regard to certain specifically human powers is rightly regarded as "dead as a person." The still living body that remains after this death is not a human being in the full sense. Philosopher John Lizza discusses the living organism left behind after the "person" has died in the following way:

Advocates of a consciousness-related formulation of death do not consider such a being to be a living person. In their view, a person cannot persist through the loss of all brain function or even the loss of just those brain functions required for consciousness and other mental functions ... [W]hat remains alive must be a different sort of being ... a form of life created by medical technology ... Whereas a person is normally transformed into a corpse at his or her death, technology has intervened in this natural process and has made it possible ... for a person's remains to take the form of an artificially sustained, living organism devoid [51] of the capacity for consciousness and any other mental function. (1) Thus, advocates of this third position effectively maintain that in certain cases there can be two deaths rather than one. In such cases, they argue, a body that has ceased to be a person (having "died" the first death) can be treated as deceased--at least in certain ways. For example, according to some advocates of this position, it would be permissible to remove the organs of such individuals while their hearts continue to beat. The patients most often cited as potential heart-beating organ donors, based on this concept of death, are PVS patients and anencephalic newborns (babies born with very little, if any, brain matter other than the brainstem). Organ retrieval in such cases might entail the administration of sedatives to the allegedly "person-less" patient because some signs of continued "biological life" (such as the open eyes and spontaneous breathing of the PVS patient) would be distracting and disturbing to the surgeons who procure the patient's organs.

Serious difficulties afflict the claim that something that can be called "death" has occurred even as the body remains alive. One such difficulty is that there is no way to know that the "specifically human powers" are irreversibly gone from a body that has suffered any injury shy of total brain failure. In Chapter Three, we cited neurologist Steven Laureys's observation that it is impossible to ascertain scientifically the inward state of an individual-and features of this inward state (e.g., thinking and feeling) are always cited as marks of a distinctively human or personal life. It is very important here to recall the marked differences in appearance between the individual with total brain failure and the individual with another "consciousness-compromising" condition. The latter displays several ambiguous signs--moving, waking up, and groaning, among others--while the former remains still and closed off from the world in clinically ascertainable ways. (2)

A related problem with this "two deaths" position is that it expands the concept of death beyond the core meaning it has had throughout human history. Human beings are members of the larger family of living beings, and it is a fundamental truth about living beings [52] that every individual--be it plant or animal--eventually dies. Recent advances in technology offer no warrant for jettisoning the age-old idea that it is not as persons that we die, but rather as members of the family of living beings and as animals in particular. The terminus of the transformation that occurs when a human being is deprived by injury of certain mental capacities, heartbreaking as it is, is not death. We should note, again, that some technological interventions administered to the living might be deemed futile--that is, ineffective at reversing or ameliorating the course of disease or injury--and that an ethically valid decision might be made to withdraw or withhold such interventions. There is no need, however, to call an individual already dead in order to justify refraining from such futile interventions.

In summary, the two positions that we present in this chapter share the conviction that death is a single phenomenon marking the end of the life of a biological organism. Death is the definitive end of life and is something more complete and final than the mere loss of "personhood."

Position One: There Is No Sound Biological Justification For Today's Neurological Standard

The neurological standard for death based on total brain failure relies fundamentally on the idea that the phenomenon of death can be hidden. The metaphor employed by the President's Commission and cited in Chapter One expresses this idea: When a ventilator supports the body's vital functions, this technological intervention obscures our view of the phenomenon. What seem to be signs of continued life in an injured body are, in fact, misleading artifacts of the technological intervention and obstacles to ascertaining the truth. To consult brain-based functions, then, is to look through a "second window" in order to see the actual condition of the body.

The critical thrust of Position One can be summarized in this way: There is no reliable "second window" on the phenomenon of death. If its presence is not made known by the signs that have always accompanied it--by breathing lungs and a beating heart--then there is no way to state with confidence that death has...