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Death, Brain Death, and the Limits of Science: Why the Whole-Brain Concept of Death Is a Flawed Public Policy

Mike Nair-Collins

he 1981 Uniform Determination of Death Act (UDDA)1 states:

On the Diverse Concepts of Death


The concept of death is not a unitary one, and it is important to clarify and distinguish various senses of the word death. Rhodes, for example, notes the following:  hile it may not always have been so, today the W word death has three distinct senses. Death is a rough marker for a complex biological event. Death is also an important marker in the social/ legal/political realm. And death indicates distinctions in the moral realm.4 This is a good start, but more precision is required. We begin with the commonsense concept. Death is the cessation of life, and it is realized by all kinds of things. The family pet, the insect in the backyard, and a human family member can all die or become dead. The commonsense notion of death is a non-technical concept, and dead and its cognates are words that we all use reasonably correctly. As a non-technical term, the colloquial death probably includes most or all of the following concepts, and may or may not distinguish among them, although some imprecise form of the biological concept lies at the core of the commonsense concept. The biological concept of death involves the cessation of biological functioning; it is a technical scientic concept. The standard elucidation of the biological concept of death is as follows. We begin with a tripartite distinction between the conceptual denition of death, the physiological criteria that must be satised for biological death to have occurred, and the diagnostic tests that are used to determine whether the physiological criteria have been satised. Conceptually, (biological) death [is] the permanent cessa667

 n individual that has sustained either (1) irreversA ible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. The whole-brain concept of death, appealed to in the UDDA, has been roundly criticized for many years. However, despite a great deal of legitimate criticism in academic circles no real clinical or legislative changes have come about. At least one reason for this inertia is aptly stated by James Bernat, one of the principal and founding proponents of the brain death doctrine: In the real world of public policy on biological issues, we must frequently make compromises or approximations to achieve acceptable practices and laws.2 While acknowledging that the brain death doctrine is not awless and that he and other proponents have been unable to address all valid criticisms, Bernat nonetheless maintains that the brain death doctrine is optimal public policy. The brain death doctrine provides successful public policy[because it] is intuitively acceptable and maintains public condence in physicians accuracy in death determination and in the integrity of the organ procurement enterprise.3 In this paper I challenge Bernats claim. Policy that relies on the whole-brain concept of death as its foundation suffers from serious moral failings and so ought to be abandoned.

Mike Nair-Collins, Ph.D., is in the Clinical Trials Support Division at Nathan Kline Institute for Psychiatric Research.

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tion of the functioning of the organism as a whole.5 a person in the agency sense, but is a person in the This notion of biological death involves the loss of psychological sense. the integrative unity of the functioning of the organTo maintain clarity of word use, I will henceforth ism as a whole, where functioning is taken to mean, use person to refer solely to the psychological, nonat least partially,6 the resistance of entropy and the moral concept of personhood. We distinguish this maintenance of internal homeostasis. When the varifrom the moral agency concept by using moral agent ous metabolic processes cease to work together in an or agent to refer to the latter. This is not an endorseintegrated fashion in their resistance of entropy, the ment of either concept of a person; we simply need dying process has ceased and the event of death has clear and unambiguous language. occurred. Related to the moral agent concept of death, there The physiological criterion for biological death is is the moral patient concept of death. While a moral the state known as brain death. This is the state in agent is one who is autonomous and morally responwhich all functions of the brain have ceased irreverssible for her behavior, a moral patient need not be an ibly. Bernat, Culver, and Gert have made the empirical agent, but nonetheless is a member of the moral comclaim that this criterion [of brain death] is perfectly correlated with the permanent cessation of functioning of the organism as James Bernat claims that the whole-brain whole.7 The diagnostic tests used to deterconcept of death remains optimum public mine whether brain death has occurred involve unresponsiveness, apnea, and lack policy, and I challenge that claim. The real of cranial nerve reexes. disagreement, for the purpose of this paper, is Divergent from the biological concept over how we ought to legally dene the word is the personhood concept of death, which is the event in which the person ceases to death. exist. This notion of death is relative to that of a person. One insight into the nature of persons involves a focus on psychological munity and thus deserving of moral consideration and states and their continuity. Persons are subjects that protection.8 The moral patient concept of death refers think or feel; they have experiences. Being a person, to the event in which an individual loses her standon this construal, is to be a self, the subject that has ing as a member of the moral community, and hence relatively continuous psychological states. When that is no longer granted the typical moral protections self, the experiencing subject, ceases to exist, the perafforded to such members. For example, a biologically son has died. This notion does not make agency a necliving human is afforded certain protections, such essary component of what it is to be a person. as the prohibition of autopsies, burial, or cremation By contrast, many conceive of a person as a moral while still biologically living, as a result of her memagent. Agency is usually understood in the Kantian bership in the moral community. But upon biologisense in which an individual is self-governed (or cal death, these protections no longer apply; cremaautonomous), can act in accordance with her own tion, burial, and autopsy become morally acceptable. directives, has and can give reasons for her behavThus, the severely demented individual is no longer a ior, and most importantly, is thus able to be held moral agent, hence, the death of the agent has already responsible for her actions. While all moral agents occurred, but she is still a moral patient, deserving of must be subjects of experience and thus persons in moral consideration. the psychological sense, not all persons in the psyFinally, there is the legal concept of death. This is chological sense are moral agents. For example, an the concept that gets explicitly legislatively dened in individual that suffers from severe dementia can still order to serve socio-legal purposes. Currently, there be a person in the psychological sense: she is still the is widespread, international consensus on what that subject of experiences, centered on an experiencing legal denition should be, and it is dened in terms self. She still feels pain, for example. By contrast, if of whole-brain death or brainstem death, essentially she has lost the ability to have and give reasons, to following the lead of the UDDA quoted at the outset act in accordance with her own directives, and thus, of this paper. The central argument of this article concannot be held responsible, then she is no longer a cerns this concept. Bernat claims that the whole-brain moral agent, and therefore the (moral agency conconcept of death remains optimum public policy, and strual of the) person has ceased to exist. For a differI challenge that claim. The real disagreement, for the ent example, an infant or very small child is not yet 668
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purpose of this paper, is over how we ought to legally dene the word death.

Scientic Realism and Biological Death


It may not always be apparent, but much of the brain death debate relies on the answer to a far more general question: How are our words or concepts related to the world? Do we construct reality with our concepts, in such a way that the world is somehow dependent on our minds, thoughts, or concepts? Or should we say that the world is what it is, independent of what humans happen to say or think about it? Is the world out there to be discovered, or is reality just a psychosocial construct? The theoretical commitments that go with various answers to these fundamental metaphysical questions inform the brain death debate in an important way. If you are of the scientic realist persuasion, then biological death is a natural phenomenon, just like carbon molecules and electromagnetic elds, and its nature is to be discovered, not stipulated. If, on the other hand, you are of the non-realist persuasion, then we do not properly discover what biological death is, but we (somehow) decide it, construct it, or otherwise have creative powers with regard to its nature, with regard to what it is. The underlying metaphysical question is fundamental and encompassing, and I surely cannot do it justice in this concise section. Instead, I will briey mention some reasons why (1) we ought to accept realism, and (2) as a matter of practice, everyone does accept it, regardless of their explicit theoretical commitments. There are many different ways of thinking about realism, but for our purposes the basic idea is simple, and it is commonsense: the world is what it is, independent of anyones thoughts about it. When scientists investigate the world, they do not construct it or agree that it should be so, thus making it so. Rather, scientists discover the world, and our scientic theories are either true or false depending on whether or not they correspond to reality as it is. The standard argument for scientific realism is known as the no-miracle argument: our best scientic theories are remarkably successful in making predictions and allowing for the manipulation of manifest phenomena. Our engineers and physicians use the theories that scientists give them to manipulate reality in very reliable ways, to build bridges and airplanes, to treat diseases, etc. The only explanation for this remarkable success, short of making it a miracle, is that those theories at least approximate the (literal) truth. That is, our best theories say something about the world, and the world really is as they say, at least

for the most part. For this reason, we ought to conclude that scientic realism is true.9 In addition to the positive argument for scientic realism, we should also note that, every time we get onto an airplane, or into an automobile, we trust our lives to the truth of various scientic theories. If we did not at least implicitly believe that various theories about friction, thermodynamics, aerodynamics, and so forth involved more than mere psychosocial constructions, we would not so readily put our lives in the hands of the engineers who designed these machines, based on scientic theories. Thus, we all implicitly accept scientic realism, which can be seen through our actions. Finally, we should keep in mind that realism, in its various forms, is just plain commonsense, and the various forms of non-realism are so far removed from commonsense that it becomes difficult to even charitably interpret what they say. How could we construct the world with our minds? I hope that the above discussion seems trivial, and that it is obvious that there is a world outside of our minds whose nature is independent of our concepts.10 However, once we have accepted the basic, commonsense notion of realism, some important implications follow. First, life is a natural, biological phenomenon, and thus so is biological death. It follows from this that we cannot decide on the nature of biological death, thereby making it whatever we agree that it is; it is something whose nature is to be discovered, not stipulated. It also follows from this that it is possible to say something that is not true about biological death: a group of physicians, or group of legislators, or indeed an entire community, can all be wrong about what biological death is, just as they can be wrong about, say, whether combustion involves releasing phlogiston or consuming oxygen. The second implication is that biological death is not the sort of thing that occurs by at. When a physician declares a patient dead, the patient does not thereby become biologically dead. Being married, by contrast, is a state that gets instantiated when and only when a person that plays the appropriate social role, such as a judge or other officiant, decrees it. Being biologically alive is not that kind of state. I cannot be made to be alive because a legislator or physician decrees it if I am dead; similarly, I cannot be made dead because a legislator or physician has decreed it. There are a couple of important points in need of clarication. On the one hand, the world is what it is regardless of what anyone says or thinks about it, and that world includes biological organisms and biological states, whose natures are to be discovered. On the other hand, while the world is independent of us, the meanings of our terms are not. For example, a physi669

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cian cannot cure cancer by declaring, by at, that her patient no longer has it. However, what does cancer refer to? Should we say that a patient has cancer when she has a few pre-cancerous cells? How many? What kind? The fact is, biological concepts are messy. The boundaries of the extensions of those concepts are vague, usually indeterminate, and in an important sense, they are arbitrary. So perhaps my apparently obvious claim that the world is what it is and we do not construct it, is misguided. In at least one important sense, it might be argued that we do construct biological reality, because there is an element of choice involved in whether cancer means this or that.11 This objection confuses the social conventions involved in determining the meanings and extensions of our terms, with the world to which those terms refer. The meanings of our public language terms are dependent on us (to some extent at least), so if, as a community of linguistic agents, we all agree to use certain words in a new way, we can certainly change the meanings of those terms. But changing the meanings of terms does not change the world to which those terms refer. For example, if we all agree that Santa Claus refers to the jar of peanut butter in my cabinet, then that is what Santa Claus would mean. However, that would not make Santa Claus, that is, the jolly old man with a white beard and red suit, exist. All it would do is change what Santa Claus refers to. But the original question about the existence of a man who lives at the North Pole was never a question about the meaning of an arbitrary group of phonemes, nor was it a question about a jar of peanut butter. It was a question about a jolly old man at the North Pole. By comparison, once we accept scientic realism, we accept that at least one component of the question confronting us is about the nature of biological death. It is not a question about the word death. We can make any group of sounds mean whatever we want, and we can even go so far as to legislate it. But what we cannot do is alter the underlying reality; we cannot alter biological death itself, by legislating on what the word death means. All that we can do is change or clarify the meaning of a word, and that is distinct from discovering the nature of what that word refers to. A second, related worry, deals with the possibility of vague cases.12 Merely accepting scientic realism and recognizing the important distinction between our thoughts or language and the world that our concepts and terms refer to, does not imply that for every individual thing there is an unambiguous and scientically correct answer of whether that thing is really alive or dead. If there are such vague cases, it might follow that brain dead individuals fall into the vagueness category, in which case the purpose for which 670

we use the concept of death might become relevant, thereby interlinking the underlying biological reality with social purposes, and blurring the strict line that I seek to draw between the world as it is and the language and concepts that we use to describe it. The possibility of vague intermediate cases, as mentioned above, is compatible with the basic scientic realism thesis and with the important distinction between the mind-independent world and our language. The only sense in which the possibility of vagueness would be threatening is if it turns out that brain dead individuals in fact fall into the vagueness category, inhabiting a place somewhere between being alive and dead. But establishing that thesis takes separate argumentation, which is not provided by the mere possibility of vagueness. Additionally, I will shortly demonstrate that the biological status of brain dead individuals is not at all vague. To be clear then, all I seek to establish at this point is that biological death is a matter to be discovered, not stipulated. Second, whatever biological death is, it does not occur in virtue of a person who plays the appropriate social role declaring it to be so, the way marriage does. Third, physicians and others can be right or wrong about whether an individual is biologically dead, but this does not imply that for every possible case at every possible moment of time, there is a right or wrong answer. The mere possibility of vagueness does not threaten any of these basic points. Here is a related way of making the same basic point, which also serves to illustrate the prevalence of the unfortunate conflation of the meanings of terms with the world to which those terms refer. A denition is an explanation of the meaning of something. The sorts of things that get dened, however, are terms in a language. For example, we can dene chair, but we cannot dene a chair. We can describe a chair, we can sit on it or break it (etc.), but chairs, as such, do not have denitions because they are not the sorts of things that have meaning. Similarly, we can dene death (the word), but not death (the event or phenomenon). Death, the biological event, can be explained, described, prevented, or caused, but it cannot be dened because it is not the sort of thing that has a meaning in the way that words do. Thus the phrases the denition of death and dening death are senseless. This may seem like academic pedantry, but it is relevant and important. By confusing death, the word to be dened, with death, the phenomenon to be explained, we bring properties of denitions to bear in our attempts to explain the mind-independent phenomenon. Namely, denitions are dependent on use by a community of linguistic agents, and open to
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revision and stipulation. Biological phenomena themselves are not dependent on use by a linguistic community nor are they open to revision or stipulation. Instead, they bear discovery, description, and explanation. This confusion is widespread, but here are two important examples. Bernat et al. title their seminal paper, On the Denition and Criterion of Death,13 and the Presidents Commission for the Study of Ethical Problems in Medicine and Biomedical and Biobehavioral Research title their work Dening Death.14 Both of these titles evince the same underlying confusion between metaphysics and semantics: death, the phenomenon, is to be discovered and explained, not dened or stipulated. It is only the word death that bears denition. But, with respect to biological death, it is not primarily a (mind-dependent) denition that we are after; it is a description and explanation of the mind-independent biological phenomenon. A nal clarication: just as there is a distinction between the social conventionality of the meanings of our terms and the world to which those terms refer, there is also a distinction between the events or properties in the world, and our epistemic access to those events and properties. Biological death is the event that separates the living (or dying) process from the process of increasing entropy. However, even assuming that this is the best theory of biological death and thus that we ought to accept it, this does not imply that physicians will have epistemic access to when death occurred. Instead, what physicians can do is determine (after the fact) that the event has indeed occurred. Whether physicians can ever, even in principle, discover when the process of entropy reversal occurs, is irrelevant to the nature of biological death. Biological death is what it is, and nothing about its nature is implied by our epistemic access to it. Just as we do not construct the reality of death by deciding on its nature, we also do not construct the reality of death as a result of what we can know about it. Physicians are quite good at determining that biological death has occurred, and this is enough for our purposes.

Brain Death Is Not Biological Death


The claim that brain death is not biological death has been ably defended in many places. Here I only outline the strongest argument in its defense.15 As Bernat, Culver, and Gert argued in their 1981 article, we should consider the conceptual denition of death to be the permanent cessation of the functioning of the organism as a whole. The notion of biological functioning of the organism as a whole has been claried (by Korein and others17) in terms of thermodynamics: living biological organisms are localized pockets of entropy-

resistance. In their homeostatic maintenance of various physiological factors, living biological organisms resist thermal and chemical equilibrium with their environment. When this process ceases irreversibly, the organism has died and the entropic process takes over. The claim that the permanent cessation of all functions of the brain (i.e., brain death) is the physiological criterion for biological death is a simple and elegant one, and, fortunately, it is also an empirically testable claim. Bernat, Culver, and Gert make the following claim, which I quote again for its importance: this criterion [of brain death] is perfectly correlated with the permanent cessation of functioning of the organism as whole.18 Let us call this H (for the brain death hypothesis). Using our tried-and-true scientic methodology, if H is true, we should expect to observe the following (which I will call O for observable implication): whenever an individual suffers permanent loss of all brain function, that individual should suffer permanent cessation of functioning of the organism as a whole (alternatively, the localized pocket of antientropy should cease to exist, and the entropic process should take over). As it turns out, we do not always observe the permanent cessation of functioning of the organism as a whole upon loss of all brain function; or, the localized pocket of anti-entropy does not cease to exist when the brain ceases to function. Specically, in brain dead individuals, the following homeostasis-maintaining functions have been observed: cellular respiration, nutrition, wound healing, febrile response to infection, and the elimination, detoxication, and recycling of waste.19 Each of these homeostatic functions serve to resist entropy for the organism as a whole, and, although they are typically modulated by the brain in a healthy individual, nonetheless they can and do occur in the absence of any brain function. Bernat has replied that many of Shewmons chronically brain dead patients (from whom I draw the examples above) were not in fact brain dead; they were simply misdiagnosed.20 If this were the case, then Shewmons observations would not count as disconrming H. However, we do not need any of Shewmons chronically brain dead patients to see that O is false. Brain dead patients can maintain spontaneous circulation, gas exchange at the alveoli, and cellular respiration. These processes serve to stave off entropy; they are homeostasis-maintaining functions of the organism as a whole. Thus, not only do we fail to observe that O; rather, we observe that not-O. It follows that H is false. The empirical hypothesis H, the brain death hypothesis, claims that the permanent cessation of the functioning of the organism as a whole is perfectly 671

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correlated with the permanent cessation of all brain function, and this is false. Therefore, brain death is not biological death.21 I will briey pause to address an objection, which is that gas exchange, circulation, etc., are made possible by the ventilator, and without it, these processes would not occur. This is both true and irrelevant. Circulation, gas exchange, and cellular respiration are also made possible by a permanently implanted pacemaker in a person who needs it, and without the pacemaker, these processes would not occur. But it does not follow from this that a person walking around with a pacemaker is already dead because without the pacemaker her heart wouldnt circulate oxygenated blood. Similarly, when an individual with lack of all brain function relies on a ventilator, it does not follow that the homeostasismaintaining functions that her body still performs naturally and spontaneously are not really biological functions. Thus, the brain death hypothesis is false. Lack of all brain function does not perfectly correlate with the cessation of functioning of the organism as a whole, and brain death is not biological death. It is worth pointing out that Bernat has implicitly accepted this. In subsequent writings he subtly but importantly shifted the dialectic. The initial discussion was about brain death, which is the permanent cessation of all functions of the brain. The UDDA, and the various state laws based on it, also pertain to brain death, as they dene death in terms of the permanent cessation of all functions of the brain. However, in Bernats later writings, he abandons the claim that brain death is necessary for death, by redening the term brain death to mean something like partial brain dysfunction. Early on in the brain death literature it was discovered that individuals can meet the diagnostic requirements for brain death in terms of apnea, unresponsiveness, and lack of cranial nerve reexes, yet nonetheless maintain certain neurological functions. The most obvious of these involves neurohormonal regulation of free water homeostasis and with it, the prevention of central diabetes insipidus. Rather than acknowledge that the tests produce false positives and recommend a test for neurohormonal function, Bernats new dialectic simply attempts to change the medical standards so that both the denition of death and the criterion of biological death would be in line with the imperfect diagnostic tests, tests which call people brain dead even though they clearly maintain some neurological function (and hence, are not brain dead). Specically, Bernat has argued that the new denition of death is the permanent cessation of the critical functions of the organism as a whole (my emphasis).22 Critical functions, according to Bernat, are 672

functions that are necessary for the maintenance of life, health, and unity of the organism.23 The new criterion for this redenition is not brain death. Rather, the criterion for the new denition is the irreversible cessation of all clinical functions of the entire brain (my emphasis).24 The modifier clinical refers to important functions of the organism that are readily observable or measurable on bedside neurological examination.25 Before I address Bernats claims, we must rst clarify the dialectic. The initial claim was that brain death, that is, the cessation of all functions of the brain, is a physiological criterion, or is a necessary and sufficient condition, for biological death. This claim underlies the UDDA and the state laws based on it. This claim has been decisively refuted: an organism with complete lack of brain function, if maintained on a ventilator, can nonetheless maintain certain homeostasis-maintaining biological functions, and so remain biologically alive. Bernats new claim shifts the dialectic from the lack of all brain function to the lack of clinically apparent brain function, and this is not relevant to the original brain death hypothesis. Additionally, since the complete lack of brain function is not a sufficient condition for the death of the organism, neither is the partial lack of brain function. Neither brain death nor Bernats partial brain dysfunction are sufficient for the biological death of an organism. The dialectic has been shifted, but the move is fallacious. More importantly, by shifting the dialectic in this way, Bernat has already accepted that brain death does not perfectly correlate with the permanent cessation of the functioning of the organism as a whole. For Bernat, something weaker is now required: he now claims that brain death is sufficient but not necessary for biological death, whereas the whole-brain concept of death makes brain death both sufficient and necessary for biological death. Addressing Bernats new dialectic, it is easy to see that the notion of a critical function is vacuous, and it does not rule out neurohormonal function except by ad hoc decree. It does no good to dene death in terms of the cessation of critical functions and then to dene critical functions in terms of the functions necessary for life. That may be true but it is trivial; to claim that neurohormonal functions are not critical functions is simply to claim that neurohormonal functions are not necessary for life, which is to beg the question. It is also worth comparing the following two quotes. The rst is from Bernat (1998), the second is from Bernat et al. (1981).  hile I agree that the secretion of antidiuretic W hormone counts as a function of the organism as a
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whole, it is not a critical function because patients without such secretion can survive for long periods without treatment [my emphasis].26 The patients described by Brierley and associatesare also in this category [of being biologically living]. These patientsretained many of the vital functions of the organism as a whole, including neuroendocrine control and the control of circulation and breathing [my emphases].27 Certainly, we may all change our minds over the course of a career, and there is nothing wrong with that. However it is worth noting that this change only came about as a result of new ndings that demonstrated that the standard diagnostic tests are awed

is clinically apparent through the absence of polyuria anyway.28 It has been conclusively demonstrated that brain death is not biological death. From this it follows that Bernats partial brain dysfunction is not biological death either. Bernats shifting dialectic is fallacious with respect to the original question about biological death and its relation to brain death. Even should we accept the shift, critical functions are an undened ad hoc construction; the use of clinical functions as their physiological criteria is similarly an ad hoc maneuver, and does not even do what it was intended to do: clinically observable functions do not rule out neurohormonal functions because the lack of central diabetes insipidus is clinically apparent through the

Biological death is a natural phenomenon to be discovered by science. As such, the epistemic access of neurologists is irrelevant. What possible difference could it make to the underlying biological reality whether a neurologist needs a penlight or needs a blood test to look for circulating hormones?
because they routinely produce false positives. After this aw was brought to light, rather than change the tests in order to make them more reliable (specically, by incorporating a requirement that neurohormonal functions be ruled out), the new claim is that neurohormonal control is not a vital or critical function, and that is ad hoc. Additionally, even if critical function can be nontrivially dened, surely circulation, cellular respiration, gas exchange, etc., are functions necessary for the life, health, and unity of the organism. Thus, even if we adopt the new denition of death (and we should not, because it is essentially undened), it still does not follow that brain death is biological death. It is not. Second, changing the physiological criterion from brain death to partial brain dysfunction, where the relevant functions are now clinically observable functions, is both ad hoc and entirely irrelevant to the nature of death. Biological death is a natural phenomenon to be discovered by science. As such, the epistemic access of neurologists is irrelevant. What possible difference could it make to the underlying biological reality whether a neurologist needs a penlight or needs a blood test to look for circulating hormones? Additionally, the ad hoc clinical functions test does not even rule out neurohormonal functions. The absence of central diabetes insipidus lack of polyuria, and this demonstrates the preservation of neurohormonal function. Although it is clear that brain death is not biological death, nothing follows with respect to personhood, agency, or the status of a brain dead individual as a moral patient. Those are distinct questions. Let us now turn to them.

Brain Death and Death


Brain death is not biological death, but as Rhodes notes,29 the word death is also used to mark distinctions in the moral and socio-legal realms. The legal denition is just what is at issue, so we will momentarily leave that aside. However we may still ask: does brain death correspond to any of the distinctions in the moral/psychological realm earlier discussed? Brain death is sufficient but not necessary for the death of the person, in the psychological sense of person. The person dies (better: the person ceases to exist) when the self, the subject of experiences, no longer exists. This occurs when all psychological states cease. While psychological states have ceased to exist in the brain dead individual, this event can also occur prior to brain death, for example (presumably at least) in an individual in a vegetative state (henceforth VS). Additionally, an anencephalic infant is not brain dead, but (again, presumably at least), lacks all psychological states, and thus is not a person. Brain death does 673

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not mark the distinction between personhood and non-personhood. Similarly, brain death is sufficient but not necessary for the death of the moral agent. This occurs when the individual loses her autonomy, is no longer able to have and give reasons, has no preferences or values, and cannot be held responsible for her actions. People with severe dementia and individuals in a VS are already dead, in the moral agency sense of death, but they are not brain dead. At a different stage, infants and very young children lack autonomy in this sense, and so they are not yet agents. Nonetheless they are not brain dead. Brain death does not mark the distinction between agency and lack of agency. All that is left is the moral patient concept of death, and this is a crucial point: whether brain death marks the distinction between membership and lack of membership in the moral community is a normative value judgment, subject to rational disagreement. The claim that brain death is the death of the moral patient is equivalent to the claim that brain dead individuals are not entitled to the moral protections typically afforded those who are members of the moral community, such as the prohibition against autopsy, cremation, and most relevantly, the prohibition against the removal of vital organs.30 However, that question, whether brain dead individuals should be afforded the same or similar moral protections as non-brain-dead individuals, is not a scientic question. The answer to it depends on how much value gets assigned to biologically functioning individuals in the brain dead state. If little to none, then brain dead individuals are not members of the moral community, and it is morally acceptable to remove their vital organs (thus ending the biological life of the individual). Hence, on this value-assignment, brain death is the death of the moral patient. If, however, some level of biological functioning confers moral value on an individual, then on this distinct value-assignment, brain death is not the death of the moral patient. Whether brain death corresponds to the death of the moral patient depends on the normative question of how much (or what kind of ) value to assign a biologically functioning individual with complete lack of brain function. Science cannot answer that question.

To understand what is at issue, well need a key concept: the legal denition of death is a stipulative denition. Hence, it is true by denition, regardless of what that stipulation is; or, it is impossible for the legal denition to be false. For example, if the laws were changed so that the legal concept of death is dened in terms of the cessation of all functions of the kidneys, then a person would, by denition, be legally dead upon renal failure. There is no sense to be had in asking whether the legal denition of death is true or not; it is true by denition. Rather, the appropriate question is: how should we legally dene death? This is a normative question about the best way to legally stipulate the conditions under which we will, for sociolegal purposes, call an individual legally dead.31 The legal denition should track one or more of the various death-concepts thus far discussed. I foresee no reasonable argument for legally dening death in some way that tracks neither the biological concept, nor the personhood concept, nor the moral agent or patient concept. As I mentioned above, we might dene death in terms of the loss of all kidney function, for example, but why would we? In what follows, I present several arguments against the brain death criterion as the legal standard for death. Ultimately, the brain death criterion for legal death engenders unsuccessful policy because it is disingenuous, and because it results in serious moral aws in medical practice. I present these arguments as distinct, but many of them draw on overlapping points and concerns.

The Ad Verecundiam
An ad verecundiam is a fallacy that appeals to an inappropriate authority. For example, John Madden is an expert on American football, but not on, say, physics. Appealing to John Maddens views about football is an appropriate appeal to a relevant authority. But appealing to John Maddens views about physics involves the appeal to an inappropriate authority. The scientic/medical community, as a whole, is an authority on biology and medicine. That is, the medical community is authoritative on factual biological questions, and an appeal to the medical community to resolve factual questions about biology is an appropriate appeal to a relevant authority. However, among the various concepts of death, only one of them is in the factual, scientic domain, and that is the biological concept. We have seen that brain death is not biological death; whether brain death marks distinctions among the other death-concepts, however, is not in the purview of science. A key event in the evolution of public policy that ultimately resulted in our current policy was the pubjournal of law, medicine & ethics

The Legal Concept of Death


I now defend the central claim of this paper. Namely, the brain death criterion for death is not successful public policy; alternatively, the current legal denition of death, dened in terms of brain death, engenders serious moral failings and therefore ought to be changed.

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lication of A Denition of Irreversible Coma in the Journal of the American Medical Association,32 in 1968. This was authored by a panel of experts from Harvard who studied patients in irreversible coma. The subsequent book Dening Death,33 by the Presidents Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, adopted the 1968 denition, and this was incorporated into the UDDA and all subsequent state laws based on the UDDA. However, as we have seen above, the empirical brain death hypothesis is false. Brain death is not biological death; but that really never was the question at issue. The questions have always been these: when is it acceptable to remove life-sustaining machinery in order to free up ICU beds, and when is it acceptable to remove organs? Since solid organs are not viable after biological death, the answer to this latter question, if we are to obtain organs for transplant (and respect the dead donor rule), had better be sometime before biological death. As noted previously, these are not scientific or medical questions. They are value-laden, normative questions. However, by putting forth the claim that brain death is death, backed by such prestigious scientic institutions as Harvard Medical School and the Journal of the American Medical Association, the full weight and force of the scientic medical community backs the claim. The claim that brain death is death is put forward by medical scientists as if it were a scientic fact that has been discovered, rather than what it is: it is a normative judgment that has been decided. But medical scientists are not normative experts, and this is a bald ad verecundiam.

An Obscured Public Debate


The claim that brain death is death is ambiguous among the several senses of the word death. More carefully, there are several distinct words, all of which are homonyms, and all of them are spelled, death. Like bank (which refers to the nancial institution) and bank (which refers to the side of a river), death, death, death (etc.) are all different words. When context does not make clear the distinctions, I will use death-b, death-p, death-ma, death-mp, death-l, and death-c to denote, respectively, biological death, death of the person, death of the moral agent, death of the moral patient, legal death, and the commonsense notion of death. The claim that brain death is death-b is a technical scientic claim for medical scientists to grapple with. None of the other claims are. The most important remaining claim is whether brain death is deathmp, because each of the relevant questions, regarding when it is appropriate to remove vital organs, or when

it is acceptable to remove life-sustaining machinery and free up ICU beds, turn on whether brain death marks the distinction between membership and nonmembership in a moral community. Like euthanasia, abortion, and the permissibility of stem cell research, this is a question of grave moral signicance, and it is the sort of question about which the entire community should get the chance to deliberate upon. However, that public debate is obscured and prevented. As a result of the ad verecundiam and the various homonyms, the underlying normative questions are masked. Rather than having the value judgment that a brain dead individual has lost her standing in the moral community even though she remains biologically alive be made explicit as such, instead we only hear the claim that brain death is death. Without having access to the literature upon which this claim is based, and without engaging in a careful study of that literature, it is impossible to recognize that claim for the value judgment that it is. The commonsense concept of death, whatever else it involves, clearly has biological function at its core. Thus, read from the commonsense view, the claim that brain death is death-c cannot possibly be interpreted as not involving biological death, and this makes the claim entirely misleading and therefore disingenuous. Everyone agrees that autopsies and cremation are acceptable on a dead body. If the medical community has discovered that brain dead individuals are dead, then why wouldnt organ removal also be acceptable? Without making the value judgment that underlies the brain death doctrine explicit, the general public is in no position to participate in deliberation about a fundamentally moral issue, because that issue is not presented as a moral issue. Rather, it is presented as a factual claim that medical scientists have discovered, and about which the general public has no standing to determine. Consider, for example, the following quote from the New York State Department of Healths Guidelines on Determining Brain Death34:  ospitals must establish written procedures for H the reasonable accommodation of the individuals religious or moral objections to use of the brain death standard to determine death. Since objections to the brain death standard based solely upon psychological denial that death has occurred or on an alleged inadequacy of the brain death determination are not based upon the individuals moral or religious beliefs, reasonable accommodation is not required in such circumstances. However, hospital staff should demonstrate sensitivity to these concerns and consider using similar resources to 675

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help family members accept the determination and fact of death [my emphasis]. This policy is based on a misunderstanding, but that is to be expected for the reasons laid out above. The claim that brain death is death is put forward as if it were a fact that has been discovered. But, among all of the various concepts of death and their associated homonyms, only one of them is factual, and that is the biological concept. It has been decisively shown, time and again, that brain death is not biological death;

or not. Without clarifying that the claim, brain death is death really means, brain death is death-mp, it is to be expected that everyone, including the New York State Department of Health, is going to interpret a claim made by the medical community as a factual, medical claim, even though it isnt. Thus, a relatively small group of physicians and bioethicists have made a normative judgment about a fundamental moral issue involving life, death, and the value of biologically living human beings at the end of life. But they have presented that value judgment as a

It has been decisively shown, time and again, that brain death is not biological death; hence, contrary to the New York Sate Department of Health, the brain death standard is inadequate as a determination of biological death, and the fact is that the brain dead individual is not biologically dead. But somehow this claim is impervious to evidence: the fact that the tests are unreliable in that they produce false positives by missing neurohormonal function has not resulted in a change in the diagnostic tests but in a change in the criteria so that the criteria t the awed tests.

hence, contrary to the Department of Health, the brain death standard is inadequate as a determination of biological death, and the fact is that the brain dead individual is not biologically dead. But somehow this claim is impervious to evidence: the fact that the tests are unreliable in that they produce false positives by missing neurohormonal function has not resulted in a change in the diagnostic tests but in a change in the criteria so that the criteria t the awed tests. The fact that homeostasis-maintaining, entropy-resisting functions of the organism as a whole can remain in the brain dead has not resulted in the abandonment of the brain death hypothesis, as it would for any empirical scientic claim that has been refuted by evidence. Rather, that fact has simply been ignored, and for good reason: the claim that brain death is death is not a scientic claim about the facts. It is a judgment about values, and this is why it is impervious to evidence. I should make clear that I do not disagree with the underlying value judgment, that organ removal from the brain dead is morally acceptable under certain conditions. But without having done a careful study of the medical and bioethics literature upon which these claims are based, the rest of the general public is not privy to that discussion nor can the public play any role in the decision whether to allow this (with consent) 676

medical fact that no one outside the medical community has the expertise or authority to challenge. This is disingenuous, and it has prevented the possibility of any meaningful public debate about that fundamental moral issue. Maintaining the legal denition of death in terms of brain death only serves to perpetuate this serious moral problem.

The Lack of Informed Consent


Respect for autonomy, or for the right of self-determination, is deeply grounded in both our common law traditions as well as our medical ethics. One of the ways that this principle appears is through the requirement of informed consent for medical procedures. An informed consent is given when the consenter has adequate understanding of the relevant facts, and voluntarily, without coercion, consents to some procedure. When an individual lacks autonomy and has not given prior directives, her autonomy can still be respected, in a sense, by respecting the decisions of her surrogate decision-maker. In this case, the surrogate decisionmaker acts as a proxy or stand-in for the patient. Just as if the patient herself were making a decision, the surrogates consent must be informed: it must be made in the presence of adequate understanding of the relevant facts, and in the absence of coercion.

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Consents for organ donation are practically never informed consents. There are two ways that consents are typically given for organ removal from the brain dead. The rst, more frequent way, is through a conversation between family members and the physician, after the patient has already been declared brain dead. The second occurs when people ll out consent forms at their state Department of Motor Vehicles, or through online consent forms with their states Organ Procurement Organization (OPO). I will address the post-brain death conversation with family members rst. The implementation of informed consent is achieved through a conversation between patient or surrogate decision-maker and physician, where the physician explains the relevant facts to the decision-maker. For this conversation to result in the successful communication of information, both the physician (the speaker) and the decision-maker (the hearer) must play their respective communicative roles appropriately. For the physician, that means that she must understand her own subject matter clearly, before she can communicate that to the hearer. Unfortunately, many physicians do not understand the conceptual difficulties, inadequacies, and fallacious reasoning surrounding the brain death doctrine. I make this claim on the following four grounds. First, the literature upon which the brain death doctrine is based is riddled with non sequiturs. Discussions of critical vs. non-critical functions are irrelevant; consciousness is a red herring, as the difference between life and death is not the presence or absence of consciousness; there is confusion between diagnosis and prognosis; the creation of various homonyms distorts the issue and obscures the underlying value judgments; and there is confusion between the normative questions about organ donation with the factual questions about biological life and death.35 We can hardly expect that great clarity will arise from such a confused primary literature, and it is no surprise to nd a lack of understanding about death, brain death, and the relations between them. Second, Shewmon, Halevy, and Youngner all agree with my assessment. Shewmon writes, the conceptual basis for equating a dead brain with a dead human individual remains as confused and controversial today as ever.36 Halevy concurs: many health professionals, including those actively involved in organ transplantation, are confused about the current denition, criteria, and tests for determining brain death37 (my emphasis). Youngner et al. provide an empirical study that supports the claim of inadequate understanding by health professionals.38 Of course, this is a dated study at this point (it is from 1989). However, the

confusion in the literature remains, as does the widespread acceptance of the conceptually confused brain death doctrine, therefore it is reasonable to conclude that the confusion among health professionals themselves remains as well. Third, the quote from the New York State Department of Health about the fact that brain death is death provides further evidence for the claim that there is widespread confusion among the medical community. Fourth and nally, the mere fact that the brain death doctrine is so widely accepted, when it is so clearly confused, is evidence enough that there is widespread confusion, even among physicians, about brain death, death, and the conceptual relations between the two. Therefore the physician, the speaker, is going to have a difficult time communicating with the family.39 The communicative difficulties for the hearer, the decision-maker, are far worse than for the physician. As a result of our acceptance of the dead donor rule, and as a result of the legal denition of death in terms of brain death, the physician, as Miller and Truog note,40 must insist that brain death equals death. Thus the physician must inform the family member that her loved one is dead. But what does that mean, since there are at least six different homonyms, all of which are spelled, and sound like, dead? Presumably the family member will interpret dead in the colloquial sense of the word. Whatever other connotations might be involved in the commonsense word dead, some version of the biological concept, of cessation of functioning, clearly lies at the core of the commonsense concept. Therefore, when the physician tells the decision-maker, your family member has died, that statement is not true. On the biological concept, and hence on at least part of the commonsense concept, the brain dead patient is still biologically alive. Therefore the decision-maker does not have adequate understanding of the relevant facts; namely, the decision-maker is misinformed about whether the brain dead patient is biologically alive or not. In the real world, physicians have difficult conversations with family members, and do their very best to explain to the family member something that is not true, and something about which the physician herself is possibly unclear. The family member, for her part, does her best to understand what the physician tries to explain, but that understanding is near to impossible, since the physicians word dead might mean any of a number of things. If it means dead-b, then the claim that the family member is dead is false. If it means dead-p or dead-ma then the claim is true but misleading. If dead means dead-mp, then the physician has unwittingly taken the moral decision out of the hands of the person who should be making 677

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that decision, and anyway the claim is again misleading because no matter how you analyze it, the colloquial word dead involves an imprecise, non-technical version of dead-b. All of these various confusions result in the near impossibility of obtaining or giving informed consent for organ donation, and all of these confusions arise because the legal word dead is dened in terms of the brain death standard. On the other hand, patients can give consent for organ removal through an advance directive, either through the Motor Vehicle Department or on the regions OPO website. For the various reasons discussed above, including the ad verecundiam and all the reasons that public debate is obscured, the general public is in no position to make a truly informed choice about what they would like to happen to their bodies before they have biologically died but after brain function has ceased. The situation is even worse in this scenario than in the conversation scenario discussed above. In the conversation scenario, the doctor at least attempts to inform the family about the relevant facts surrounding the decision (even though that attempt is practically doomed to fail). In the case of internet consent forms, virtually no attempt at providing relevant information is made. Woien et al. studied the websites of every OPO in the U.S., and scored each site based on, among other things, donation promotion and informed consent.41 To score informed consent, they used the minimal information recommended by the United States Department of Health and Human Services recommendations for informed consent,42 as percentages of the recommended data elements. For example, recommended data elements for informed consent include criteria for brain death and cardiac death, organ donor end-of-life care, medical tests necessary for organ procurement, and disclosure of condential medical records to OPOs. They found that not even a single website (out of the 60 in total, for each OPO region of the U.S.) provided any information at all on any of these recommended data elements. Not a single state disclosed information about aspects of end-of-life care incompatible with organ donation, options available for hospice care and organ donation, or changes to medical care at the end of life with organ donation. On the other hand, the scores for donation promotion and donor consent reinforcement were very high. The websites include altruistic reasons to donate, religious views condoning donation, tips for persuasion of donors family to consent, claims that the donors familys grief is alleviated by donation, and that the family is not responsible for organ procurement expenses.

Woien et al. write,  ur ndings showed that the disclosure on OPO O Web sites and in online consent forms lacked pertinent information required for informed enrollment for deceased organ donation The Web sites predominantly provide positive reinforcement and promotional information rather than the transparent disclosure of the organ donation process.43 In other words, the online consent forms and OPO websites serve as mere advertisements designed to convince people to donate organs. They do not serve as reliable sources of information about the relevant facts surrounding the organ donation process. Advance directives made through online consent forms, OPO websites, and Motor Vehicle Departments (check this box to donate your organs upon your death), most certainly do not constitute informed consents. Therefore, whether it is through the sort of advance directives discussed above, or through a discussion between family members and the physician after brain death has occurred, consent for organ donation is almost never informed. This is inconsistent with the purpose of living wills and surrogate decision-makers: the raison dtre of these things is to preserve the ability of autonomous agents to determine the course of their lives, even after their autonomy has been lost. But in the absence of crucially relevant information, autonomous agents cannot direct the course of their care at the end of life. This situation will continue so long as public policy remains as it is, with death legally dened in terms of the brain death standard.

The Rejection of Pluralism


Reasonable, morally serious people of good will can reasonably differ in some of their fundamental value judgments. This is not an endorsement of relativism, but a simple recognition of the fundamental nature of certain value judgments. For example, someone sympathetic to the Kantian tradition will claim that intrinsic moral value is had only by rational agents, because only things that do value things, and have the ability to pursue what they value based on reasons, have moral value. By contrast, those sympathetic to the utilitarian tradition will claim that the simple ability to suffer confers intrinsic moral value, irrespective of the ability to think or to have reasons. Others will claim that being a biologically functioning human confers intrinsic moral value, and others yet will take a religious view, which is probably extensionally (but not intensionally) equivalent to one of the above.

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For the very reason of their fundamental nature, we do and should accept a pluralism of value-assignments. This is, emphatically, not to say that we should accept a pluralism of biological concepts of death. Biological death is what it is, and our concepts either correspond to it as it is, or they do not. On the other hand, reasonable people can reasonably make differing value judgments. In fact, we already do, to some extent at least, accept this: recall the reasonable accommodation requirement from the New York State Department of Health. While mistaken about the difference between the facts and values surrounding this issue, nonetheless, the New York State Department of Healths reasonable accommodation requirement for religious or moral objections to the brain death standard is appropriate, and it is explained and justied by the follow-

cal advisors, have forced their own fundamental value judgment onto everyone else, without ever giving the public the opportunity to participate in deliberation. The current legal denition of death therefore rejects the possibility that there might be distinct yet reasonable fundamental conceptions of the determinants of human moral worth.

Unnecessarily Obscure Language

While there are indeed several different concepts of death, using the word death to describe each of them serves no good purpose. Using death in these various ways, as homonyms, elides distinctions that need separation and confuses issues that need clarication. It is further unjustied because we already have clear, relatively colloquial language to say everything that needs saying, without using confusing homonyms to do so. Instead of using death to mark various distinctions in the social, political, and The colloquial word dead, whatever else moral realms, we can say the following. The person and the moral agent have ceased to it involves, has this concept of the cessation exist. The individual is no longer a memof biological functioning at its core, and ber of the moral community. The only distherefore, partially at least, tracks the same tinction that we need the word death to mark is the distinction in the biological distinction. By using clearer, more careful realm, between anti-entropy and entropy. language, much of the confusions noted can The colloquial word dead, whatever else be avoided or claried. it involves, has this concept of the cessation of biological functioning at its core, and therefore, partially at least, tracks the same distinction. By using clearer, more ing consideration. Since the brain death standard does careful language, much of the confusions noted above not reect a factual judgment about biological death, can be avoided or claried. but does reect a normative judgment about which For example, the ad verecundiam becomes obvious: reasonable people can reasonably disagree, it is senthe medical community tells us about biological facts, sible to make room for reasonable differences in value including biological death, but scientists qua scientists judgments. are not normative experts. Thus, the value judgment However, by defining the legal term death in that brain dead but living individuals are not memterms of the brain death standard, we have implicitly bers of the moral community is made obvious. Simirejected the value-pluralism that underlies the reasonlarly, the debate about this crucial moral issue can be able accommodation requirement. To see why, recall made public and open to forthright discussion, just that brain death is neither biological death, nor peras the other moral issues surrounding life and death sonhood death, nor death of the moral agent. Rather, are. Informed consent will become possible as well, the legal denition of death in terms of the brain because we will no longer disingenuously claim that death standard is simply the value judgment that biobrain dead individuals are already dead. Instead, we logically functioning human beings with complete can say that they are biologically alive, but that the lack of brain function are not members of the moral person that they once were, the moral agent, the locus community. of rationality, consciousness, and personality traits, no This value judgment, however, is only one among longer exists. Depending on ones fundamental value several reasonable value-assignments. But by codijudgments, an informed decision can be made about fying that value judgment into law, we have rejected whether to donate organs, even though doing so will all other value-assignments. Legislators, basing their result in the (biological) death of the brain dead but decision on the inappropriate authority of their mediliving individual.44
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Organ Donation Kills the Donor


Brain dead organ donors are biologically alive before the organ recovery process and dead afterwards; organ removal from a brain dead donor kills the donor. I have argued elsewhere that, if this were consented to based on an adequate understanding of the relevant facts, it would be morally acceptable.45 However, removing organs, and thereby killing the donor in the process, in the absence of consent, is an egregious moral violation. Many if not most organ donors might nonetheless consent to donation if they ever became brain dead even if they knew the relevant facts (that is, that a brain dead individual is biologically alive but all traces of the person and the agent are gone). However, this presumption does not exonerate our current system from its failure to allow people to make that choice for themselves. So long as death is legally dened in terms of brain death, because of all of the numerous sources of confusion discussed above, it is nearly impossible for people to give a legitimately informed consent to their being killed by organ removal. And that is morally intolerable. All of the above arguments, while distinct, share the same overlapping concerns. Legally dening death in terms of the brain death standard unacceptably obscures a moral judgment about the value of biologically living human beings that not all reasonable people would accept. This is disingenuous, and it results in the failure to respect the right of autonomous agents to decide what happens to their bodies before they have died. This failure is so egregious that it even results in biologically living individuals being killed without their consent, either via an informed advance directive or an informed surrogate decision. As I said above, this situation is morally intolerable, and it must be changed.

Policy Recommendation
For all of the reasons discussed above, public policy based on the brain death standard is far from optimal; rather, it suffers from serious moral aws that demand rectication. In this brief section I propose a policy shift that aims for correction of these aws. Since the legal denition of death is stipulative, the appropriate question to ask is: how should we legally dene death? Given the arguments above, it is clear that at least one way that we should not dene death is in terms of brain death. Rather, the legal denition of death should track the biological concept. The biological concept of death involves the cessation of functioning of the organism as a whole in its unied maintenance of internal homeostasis and resistance of entropy. The permanent cessation of all 680

functions of the brain does not correlate with this. However, the permanent cessation of all circulatory and respiratory functions does. Therefore, the criteria for the biological, and hence the legal concept, ought to be reverted to the older cardio-respiratory criteria. When the legal denition tracks the biological concept, the unnecessary confusions that engender all of the moral aws discussed above will be removed. Clearer language, as discussed previously, can be used to say everything that needs saying. Further, we should not accept an anything-goes conception of death, and having the legal concept track the biological concept allows for this, since the biological concept is governed by biological reality, not by normative value judgments or cultural norms. Additionally, legally dening death in terms of the biological concept does not obscure normative value judgments, nor does it rule out any of the value judgments that we currently make implicitly. After public acknowledgement of the biological fact that brain dead individuals are biologically alive, forthright public debate can ensue on the underlying moral issue that has always been at the heart of the brain death debate: when is it morally acceptable to remove vital organs, and when is it acceptable to remove brain dead individuals from the ventilator, thus allowing them to die? I advocate, along with the proponents of the brain death criteria, that brain dead organ removal (with consent) is morally acceptable. However, to legally allow this, homicide laws would need to be revised in order to allow exceptions for the case of transplant surgeons, since brain dead organ donors are in fact killed by the process of organ removal.46 Although it is clear that the current public policy on death and brain death is seriously unacceptable, there is an important objection to my call for drastic change. Given the political climate of many countries, it is altogether likely that many people will be dismayed to nd out that brain dead organ donors are killed for the purpose of organ removal. Once this fact is publicly acknowledged and the legal denition of death is changed as I advocate, it is very likely that the further changes I propose, allowing revisions to homicide laws so that brain dead organ removal would be legal, would not take place. If this occurred, the entire transplantation enterprise might suffer a near-collapse, as a very large majority of organs are removed from brain dead donors, but this would no longer be allowed in the scenario envisioned here. The organ shortage that we suffer from today would be greatly exacerbated. With fewer organs available, many more people will die from organ failure. As a direct result of the policy changes I recommend (assuming, that is, that further
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revisions to homicide laws do not also take place), thousands of people will die. This is not a consequence to be ignored or taken lightly, and I do neither of these things. However, it is also crucial to understand this argument: it is an argument from utility that advocates the intentional deception of the public by the medical community. The argument from utility under consideration goes like this. Suppose the medical community publicly admits its error, and acknowledges that brain death is not biological death, thus resulting in the redenition of the legal term death in terms of the biological concept, whose criterion is cardio-respiratory, not neurological. Then, it is very likely that the killing of brain dead donors for the purpose of organ recovery will not also become legal. Then fewer organs will be available, and more people will die as a result. It is better to continue making a disingenuous claim than to allow so many to die. Therefore we should maintain public policy as it is. This is a compelling argument at rst glance, and it is the only argument for maintaining the status quo that is not grounded in one or another fallacy. Unfortunately, it is also unacceptable. Biological reality is what it is, whether we like it or not. This is the main point made in the section Scientic Realism and Biological Death. The fact is that brain death is not biological death, and nothing that anyone says or agrees to is going to change the underlying biological reality to which our words refer. What the argument advocates, however, is for the medical community to intentionally deceive the public about the biological reality of death. Mistakenly claiming something that is not true is one thing, and it is morally excusable; intentionally deceiving the whole community is entirely different. Trust is at the foundation of medicine. Nothing is more important to the existence of the medical eld itself than trust, by the patient, of the physician and medical community. We trust our doctors with private and sometimes embarrassing information, with various states of undress and forms of touch that we would not allow anyone else, and we ingest potentially hazardous chemicals at the behest of our physicians, because we trust them. We allow our physicians to render us unconscious and cut into our bodies, and we go so far as to allow, and even expect, our physicians to occasionally override our decisions if they judge our decision-making to be unreasonably clouded by pain, emotional distress, or metabolic disturbances. None of this is possible without the single foundation of medicine, which is trust. As Rhodes writes, from whom I borrow the argument above, seek trust and deserve itis the fundamental moral imperative for doctors.47

The fundamental moral imperative, to seek trust and deserve it, is clearly violated by intentional, widespread public deception on the part of the medical community. While the argument from utility mentioned above seems compelling at first, we must recognize that it advocates doing something that is antithetical to the very existence of the institution of medicine, and therefore we cannot accept it. Rather than using utility as an argument for deception, utility can and should be used as an argument for allowing transplant surgeons to remove vital organs from brain dead but living donors.

Beyond the Limits of Science


The debate over brain death and death was never a scientic debate, and recognition of this is crucial for removing and correcting the serious moral aws that this misconception has engendered. This debate is beyond the limits of science in at least three ways. First, right from the start, nothing even resembling the scientic method of inquiry was used to determine the relation of brain death to death. I can say this no better than it has already been said; I quote here from Byrne and Weaver (all emphases in the original)48:  Brain death was not propagated via a medical scientic method. A committee of experts was convened to deal with issues that could affect disposition and/or utilization of these patients. The rst words of the Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Denition of Brain Deathare as follows: Our primary purpose is to dene irreversible coma as a new criterion for death. The primary purpose of the Committee was not to determine IF irreversible coma was an appropriate criterion for death but to see to it that IT WAS established as a new criterion for death. With an agenda like that at the outset, the data could be made to t the already arrived at conclusion. It seems that there was a serious lack of scientic method in this process. Second, after the brain death hypothesis was established, no amount of evidence could refute it. The brain death hypothesis has been impervious to evidence in at least two ways. As discussed above, the diagnostic tests used to determine if all functions of the brain have ceased routinely produced false positives, claiming that individuals were brain dead when they were not. Rather than revise the testing procedure, the medical standards were simply changed so that the criteria for death would t the imperfect tests. Once it was discovered that the tests do not reveal 681

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IND EPEND ENT subsystems (see id., at 390). However, they do mention, with approval, Koreins early attempts to dene the brain as the critical system controlling the organism as a whole in terms of thermodynamics and the resistance of entropy [at 391, citing J. Korein, The Problem of Brain Death: Development and History, Annals of the New York Academy of Sciences 315, no. 1 (1978): 19-38]. Therefore Bernat et al. hold the following theses in their 1981: (i) the brain is the critical system controlling the organism as a whole, (ii) without a functioning brain the organism does not function as a whole, and (iii) the brain is critical in virtue of its integrative role in resisting entropy. From (i)-(iii), we can conclude that the idea that functioning of the organism as a whole should at least partially be understood in terms of homeostasis and entropy, is implicit in Bernat et al 1981. Additionally, Bernat later made this idea explicit: Critical functions of the organism as a whole comprise three distinctcategories[of which one is:] integrating functions that assure homeostasis of the organism The critical functions in all three categories must be permanently lost for the organism to be dead. J. L. Bernat, A Defense of the Whole-Brain Concept of Death, Hastings Center Report 28, no. 2 (1998): 14-23, at 17. 7.  See Bernat et al., supra note 5, at 391. 8.  All sentient creatures are moral patients; the ability to feel pain puts one in the moral community, deserving of moral consideration (this is a controversial claim of course, but it is also irrelevant to any point made in the text so I make no attempt to defend it here). However, for the purposes of this paper we are only interested in the subset of human moral patients. I will henceforth use moral patient to refer solely to human moral patients, but I should be understood as not ruling out animals as deserving of moral consideration. 9.  The canonical no-miracle argument is from H. Putnam, What is Mathematical Truth? in H. Putnam, ed., Mathematics, Matter, and Method: Philosophical Papers (Cambridge: Cambridge University Press, 1975). For a defense of scientic realism see S. Psillos, Scientic Realism: How Science Tracks Truth (London and New York: Routledge, 1999). For different versions of non-realism see B. C. Van Fraassen, The Scientic Image (Oxford: Clarendon Press, 1980) and N. Goodman, Ways of Worldmaking (Indianapolis: Hackett Publishing Company, 1978). 10.  I do not mean to trivialize this important debate. It is a deep and central issue in metaphysics, and many serious philosophers have devoted a great deal of careful, rigorous thought to it. Nonetheless, the overwhelming rational support seems to be on the side of realism, and that should not be ignored. 11.  I thank Dr. Lynne Richardson for pressing me on this point during a presentation at the 2009 Oxford-Mount Sinai Consortium on Bioethics. 12.  I am grateful to an anonymous reviewer for helping me to clarify this section on scientic realism through several interrelated objections; among them is the concern about vagueness. 13.  See Bernat, supra note 5. 14.  See Bernat, supra note 6. 15.  For a more thorough defense see M. Collins, Reevaluating the Dead Donor Rule, Journal of Medicine and Philosophy 35, no. 2 (2010): 154-179 , from which I draw the following discussion. 16.  See Bernat et al., supra note 5, at 391. 17.  See J. Korein and C. Machado, Brain Death Updating a Valid Concept for 2004, in C. Machado and D. A. Shewmon, eds., Brain Death and Disorders of Consciousness (New York: Springer, 2004). See also J. Korein, Brain Death: Interrelated Medical and Social Issues, Annals of the New York Academy of Science 315, no. 1 (1978): 1-454. 18.  See Bernat, supra note 5, at 391. 19.  D. A. Shewmon, The Brain and Somatic Integration: Insights into the Standard Biological Rationale for Equating Brain Death with Death, Journal of Medicine and Philosophy 26, no. 5 (2001): 457-478.

neurohormonal function, neurohormonal functions became insignicant or not critical. It is abundantly obvious that cellular respiration, alveolar gas exchange, and circulation are functions of the organism of the whole that maintain internal homeostasis and resist entropy. Although the prognosis of a brain dead individual is quite poor, nonetheless, while maintained on a ventilator these functions do continue. This provides incontrovertible evidence that refutes the brain death hypothesis. Any empirical scientic hypothesis that has been so decisively and obviously refuted would have been discarded long ago. But somehow the brain death hypothesis survives, so much so that it is considered medical fact. The brain death hypothesis is so completely impervious to evidence that it does not matter what we nd even brain dead mothers gestating fetuses and brain dead children growing and sexually maturing.49 Somehow, the brain death standard tenaciously holds on, in the face of clearly refuting evidence. It is therefore beyond the limits of science. Third and nally, what lie at the heart of this debate are moral questions. They are questions about the moral value of biologically living human individuals that have lost all brain function. But these questions, like questions about euthanasia and the just distribution of resources in the face of scarcity, are moral questions, not scientic questions. Only when we recognize the brain death standard for the non-scientic, non-factual moral judgment that it is, will we be able to address and rectify the serious moral failings engendered by our current public policy, a policy which is far from optimal. Acknowledgements
I presented an early version of this paper at the 2009 OxfordMount Sinai Consortium on Bioethics, in New York City. I am grateful to the participants for a great deal of thoughtful conversation. I am also grateful to an anonymous reviewer of the Journal of Law, Medicine & Ethics for insightful and helpful commentary.

References

1.  See Presidents Commission for the Study of Ethical Problems in Medicine and Biomedical and Biobehavioral Research, Defining Death: Medical, Legal, and Ethical Issues in the Determination of Death (Washington, D.C.: U.S. Government Printing Office, 1981): at 119. 2.  J. L. Bernat, The Whole-Brain Concept of Death Remains Optimum Public Policy, Journal of Law, Medicine & Ethics 34, no. 1 (2006): 35-43, at 41. 3.  Id., at 41. 4.  R. Rhodes, Death and Dying, Encyclopedia of Life Sciences (2003): 1-7, at 1. 5.  J. L. Bernat, C. Culver, and B. Gert, On the Denition and Criterion of Death, Annals of Internal Medicine 94, no. 3 (1981): 389-394, at 390. 6.  Bernat et al., id., do not explain the concept of functioning of the organism as a whole in terms of entropy-resistance, but in terms of the integration of the functions of smaller

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Mike Nair-Collins 20.  J. L. Bernat, On Irreversibility as a Prerequisite for Brain Death Determination, in C. Machado and D. A. Shewmon, eds., Brain Death and Disorders of Consciousness (New York: Springer, 2004). 21.  In his 1998, Bernat wrote that integrating functions that assure homeostasis of the organism [are critical functions of the organism as a whole][Further], the presence of [these] functions constitutes sufficient evidence for life [J. L. Bernat, A Defense of the Whole-Brain Concept of Death, Hastings Center Report 28, no. 2 (1998): 14-23, at 17]. Therefore even Bernat should accept that the presence of homeostasis-maintaining functions such as circulation, cellular respiration, and alveolar gas exchange clearly demonstrate that brain dead individuals are not necessarily dead. Additionally, the worry about vague cases discussed previously can be further alleviated: the brain dead individual with spontaneous circulation, gas exchange, etc. resists entropy and maintains homeostasis and is therefore not a vague case; she is clearly in the category of being biologically alive. 22.  See supra note 21, at 17. 23.  Id. 24.  Id. 25.  Id. 26.  Id. 27.  See supra note 5, at 390. 28.  This should not be taken to imply that I endorse the ad hoc clinical function criterion, as I do not. As F. G. Miller and R. D. Truog write in An Apology for Socratic Bioethics, American Journal of Bioethics 8, no. 7 (2008): 3-7, at 3, Most physicians have been taught to regard the equivalence of brain death and death as a medical fact on a par with the Krebs cycle. I only point out that clinical functions do not rule out neurohormonal functions to show the persistently fallacious reasoning that is routinely appealed to, and that forms the basis for what is accepted as the medical fact that brain death is death. 29.  See supra note 4, at 1. 30.  An anonymous reviewer pointed out that some people who are not dead might nonetheless be willing to forgo the protections afforded the living, such as the prohibition against the removal of vital organs. This is correct, and it is consistent with my thesis here, which is simply that whether a brain dead individual is a moral patient is a normative value judgment. Affording living individuals certain moral protections does not imply that those individuals may not voluntarily revoke those protections. 31.  In an earlier paper (see note 15), I stated that the UDDA had gotten it wrong, because death is not brain death, and thus the claim made by the UDDA is false. What I should have said is that the legal denition got it wrong because it does not, but should, correspond to biological death. Defending this latter claim is in essence the central goal of this paper. 32.  H. K. Beecher et al., A Denition of Irreversible Coma: Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Denition of Brain Death, JAMA 205, no. 6 (1968): 337-340. 33. See also supra note 1. 34.  Department of Health, New York State, Guidelines for Determining Brain Death (2005), at 2-3, available at <http://www. health.state.ny.us/professionals/doctors/guidelines/determination_of_brain_death/docs/determination_of_brain_death. pdf> (last visited August 3, 2010). 35.  See M. Collins, Consent for Organ Retrieval Cannot be Presumed, HEC Forum 21, no. 1 (2009): 71-106, where I provide a more detailed defense of the claim that consents for organ removal are not informed, and upon which this discussion is based. I provide textual evidence for each of the listed sources of confusion there. 36.  See supra note 19, at 457-458. 37.  A. Halevy, Beyond Brain Death? Journal of Medicine and Philosophy 26, no. 5 (2001): 493-501, at 496. 38.  S. J. Youngner, S. Landeeld, C. J. Coulton, B. W. Juknialis, and M. Leary, Brain Death and Organ Retrieval: A CrossSectional Survey of Knowledge and Concepts Among Health Professionals, JAMA 261, no. 15 (1989): 2205-2210. 39.  Robert Truog, a pediatric critical care physician who does have these conversations with family members, is not confused about the conceptual difficulties involved in the brain death doctrine. But even for someone like Dr. Truog, the communication difficulties remain, as Miller and he note: [The] dead donor rule also poses problems of professional integrity for clinicians who (rightly in our opinion) do not believe that brain dead patients are really dead. Under the conventional wisdom, they must insist on the ction that brain death equals death in their efforts to encourage patients and family members to donate organs (see supra note 28, at 6). Thus, even for the many physicians who do not uncritically accept that brain death is death, communication difficulties remain. 40.  Id. 41.  S. Woien, M. Y. Rady, J. L. Verheijde, and J. McGregor, Organ Procurement Organizations Internet Enrollment for Organ Donation: Abandoning Informed Consent, BMC Medical Ethics 7 (2006): 14. 42.  Centers for Medicare and Medicaid Services Department of Health and Human Services, Medicare and Medicaid Programs; Conditions for Coverage for Organ Procurement Organizations (OPOs); Final Rule, 42 CFR Parts 413, 441, 486 and 498. Federal Register 71, no. 104 (2006): 30981-31054. 43. See supra note 41, at 14. 44.  The dead donor rule states that individuals must be dead prior to organ removal and that organ removal cannot be the proximal cause of death; this rule currently has widespread acceptance. In the context of the dead donor rule, the informed decision to donate ones organs prior to biological death is not allowed. Thus we must either abandon the dead donor rule or discontinue the removal of vital organs from brain dead but living individuals. I have argued elsewhere that the dead donor rule should be abandoned; see supra note 15. 45.  See supra note 15. 46.  As my reviewer pointed out, in addition to changes in the laws, there would also have to be changes in all of the policies surrounding donation, the attitudes among surgeons, anesthesiologists, nurses, administrators, lawyers, and members of the public. This is true; I do not claim that I propose a simple change. However, the serious moral aws that our current policy engenders demand it. 47.  R. Rhodes, Justice in Transplant Organ Allocation, in R. Rhodes, M. P. Battin and A. Silvers, eds., Medicine and Social Justice (Oxford: Oxford University Press, 2002): 345-361, at 347. See also R. Rhodes, The Professional Responsibilities of Medicine, in R. Rhodes, L. P. Francis and A. Silvers, eds., The Blackwell Guide to Medical Ethics (London: Blackwell Publishing, 2007), for more on this. 48.  P. A. Byrne and W. F. Weaver, Brain Death Is not Death, in C. Machado and D. A. Shewmon, eds., Brain Death and Disorders of Consciousness (New York: Springer, 2004): 43-49, at 43. 49.  See supra note 19.

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