Phil 383
SFSU
Rorty
Reading SAL Week 8: Defining Death
I: Introduction (SAL 323-326)
Traditional criteria for death: death occurs when breath stops and the heart ceases to
beat.
It is generally believed that cessation of function of the brain marks the end of any
chance of continuing to live as a human being..
But: modern medical technology (eg.,ventilators) has separated the previously
inseparable link between brain function and cardio-pulmonary death. Technology has
made the traditional indicators invalid for one set of patients. For them we need a
different set of diagnostic measures.
Neurological criteria for death:
Higher brain criterion: death occurs when there is the permanent loss of
consciousness. (Adopted by the Belmont report)
Whole brain criterion: death occurs with the cessation of all the functions of the
brain: consciousness, and also reflexes, autonomic nervous system functions, organic
integration, -- in other words, higher-brain and brain-stem activity. (argued for by
Veatch; the Belmont Report considered it too far away from the traditional definition.)
II; President’s Commission: Defining Death (1982)
Role of technology: stethoscope was invented in the mid-19lth century. (Before
then, the use of a mirror to determine expired breath was useful.) The EKG was
developed in the 20th century.
Anatomy of the brain: cerebrum and cortex considered the ‘higher brain’ and
control thought, consciousness, memory and feeling. Cerebelum and especially the brain
stem control vegetative functions such as swallowing, yawning and sleep-wake cycles,
and unless it is artificially supported, respiration.
Loss of brain functions: direct trauma to the head, bleeding into the brain, and
anoxic damage (deprivation of oxygen to the brain) are the most common causes of loss
of brain function. Some physiological functions can be maintained for short periods even
when all brain function is lost. Less severe injury can allow the brain stem to continue to
function even when all other brain functions are lost, and in PVS or other non-cognitive
states, patients can survive for months or even years with respiratory and ANH support.
(the Commission reports one survival of 37 years.)
The purpose of this report is to distinguish partial brain impairment from
complete and irreversible loss of brain function. The commission considered three
formulations of the meaning of death:
Whole brain formulation: Death is that moment at which the body’s
physiological system ceases to constitute an integrated whole. The brain is not merely
the sponsor of consciousness, but serves a pre-eminent role as the complex organizer and
regulator of bodily functions. Breathing and circulation are necessary but not sufficient
to establish that an individual is alive. If there is neurological evidence that the brain has
ceased to perform this central integrating function (as occurs when the whole brain,
including the brain stem, is damaged) the person is de facto dead.
Oct 15
Notes on assigned reading: week 8
Page 1
Phil 383
SFSU
Rorty
Higher brain formulation: When those brain functions which sponsor
consciousness, feeling and thought are gone, the psychological capacities and properties
which make an individual a “person” are gone. Thus loss of the higher brain functions,
rather than all brain functions, is suggested as adequate to constitute death. “After the
brain has ceased functioning, the body is no longer identical with the person.” (p. 346)
But: there is no agreement about what constitutes an adequate criterion of personal
identity. Further, severely senile or severely retarded people might meet this criterion;
but they ain’t dead; nor are individuals in PVS.
Non-brain formulations: The traditional cardio-pulmonary criterion for death,
the cessation of circulation of blood and air through the body, remains one accepted
standard for declaration of death. Because of the technological advances mentioned
above, cardiac and respiratory function are no longer sufficient determinants of whether a
person is alive or not, because those functions can (at least for a while) be artificially
maintained.
Some people will maintain that even the artificial provision of circulation of fluids
means that the individual is still alive. Under the Uniform Determination of Death Act
(see below), physicians will declare dead those bodies in which respiration and
circulation continued solely as a result of artificial maintenance, in the absence of all
brain function. “Nonetheless (p. 348), people who believe that the continued flow of
fluids in such patients means they are alive would not be forced by the statute to abandon
their beliefs nor to change their religious conduct.”
The Uniform Determination of Death Act
The National Conference of Commissioners on Uniform State Laws in 1980 formulated
the Uniform Determination of Death Act (UDDA). It states that:
"An individual who has sustained either
(1) irreversible cessation of circulatory and respiratory functions, or
(2) irreversible cessation of all functions of the entire brain, including the brain
stem is dead.
A determination of death must be made in accordance with accepted medical standards."
Laws functionally identical to this model have been adopted by all 50 states and c. 80
countries.
Bernat: Whole Brain Concept of Death Remains Optimum Public Policy (2006)
The author was influential in the ‘80s in generating an analysis of death that was
one point of reference for the President’s Commission report and the UDDA. He
reiterates his arguments in this article, which appeared in 2006 at the same time
as the article by McMahan which follows in our text.
Despite the almost universal consensus on the use of neurological criteria to determine
death, controversy remains, although restricted in scope to academics and some religious
groups. He thinks the problem arises because some people fail to accept his “paradigm of
death,” which consists of seven elements:
Oct 15
Notes on assigned reading: week 8
Page 2
Phil 383
SFSU
Rorty
(1) Death is a common non-technical word we all use correctly to refer to the
cessation of a human being’s life. We need to make explicit the meaning that has
been made ambiguous by technological advances.
(2) Life is a biological phenomenon; so is its cessation. Death is biological.
(3) For higher vertebrate species, death is univocal. It may not mean the same thing
for individual cells or unicellular organisms, but it means the same thing for me
and my gerbil.
(4) The term can be applied directly and categorically only to organisms.
(5) ‘Alive’ and ‘dead’ are mutually exclusive and jointly exhausting sets; no inbetweens.
(6) Death is an event, not a process. (That does not mean we can always accurately
measure the event; nor does it deny that dying is a process.)
(7) Death is irreversible.
Bernat’s definition: The cessation of functioning of the organism as a whole. The
definition relies on Loeb’s 1916 claim that an organism is more than the sum of its parts;
and Korein’s 1978 assertion that the brain is the ‘critical system’ of the organism.
Critical functions include consciousness, control of circulation, respiration and
temperature, and systems to maintain physiological homeostasis. Death is the
irreversible and permanent loss of the critical functions of the organism as a whole. (351)
Bernat’s criteria: there are three candidates: the whole brain criterion, a brainstem criterion accepted in England; and “the higher brain formulation, popular in the
academy but accepted in no jurisdiction anywhere.” (352) Including the circulation
criterion, he says of the alternatives: “the higher-brain and brain-stem criteria both fail
because they are necessary but not sufficient for death. The circulation criterion fails
because it is sufficient but not necessary for death.” (He means: in the absence of lifesupport, the organism dies, so absence of circulation is sufficient for death ; but
nowadays circulation can be maintained in an individual who has lost functions
critical to the maintenance of the organism, so it is not necessary for death
according to his definition.)
Tests of death: Bernat goes through various presently-used and possible future
tests that reduce the likelihood of error in determination of death (apart from various
human errors).
Public policy: Bernat discusses the support for the current criterion (wide
national and international adoption, medical association consensus reports as recently as
1996, Pope John Paul’s 2000 acceptance of it as consistent with Catholic teachings) and
dissent from it (Veatch, Taylor). He also inserts a section (355) on Donation after
Cardiac Death—a recent innovation in organ policy which we will discuss at greater
length after Spring Break.
Oct 15
Notes on assigned reading: week 8
Page 3
Phil 383
SFSU
Rorty
Jeff McMahan: An Alternative to Brain Death (2006)
In this article McMahan explicitly targets Bernat and denies many of his
assumptions. He denies (3) that the concept of death is univocal. In particular, it relates
ambiguously to ‘exist’ as well as to ‘functionally integrated.’ An individual might
continue to exist after death. When an amoeba undergoes binary fission, it ceases to exist
(as an individual) but does not die. Further, if the Lazarus (or Christ) stories are true,
death is not (7) irreversible, either.
McMahan is puzzled why Bernat does not prefer ‘irreversible’ to ‘permanent,’ and
by ‘irreversible’ intends in principle, not in practice. If integrated functioning has ceased
but could be revived, your decision whether to revive it or not determines whether the
cessation of function is permanent or not. If in fact it cannot be revived, then maybe it is
irreversible—and that may be what Bernat needs.
[McMahan refers here to an earlier Bernat article in which Bernat had a different
attitude toward DCD than that expressed in the above Bernat article.]
An important part of Bernat’s argument is that nothing can serve as the central
integrator of function except the brain. McMahan suggests two possible alternatives: a
mechanical replacement, or a decentralized interaction. (Sherwon suggests some
examples of the latter.) So if it is not an empirical claim, is it a conceptual one?
McMahan suggests several thought-experiments to test that claim, and suggests that
there’s nothing intuitive in our reaction to them. He also points out that the human
embryo seems to be a living human organism whose somatic functions are not regulated
or integrated by the brain.
McMahan closes with an argument that human beings are not organisms.—or
more precisely, not reducible to organisms. The discussion here is reminiscent of our
discussion of persons a few weeks ago: McMahan evokes psychological or identitynarratives for his claim that the person is not identical with the organism: a hypothetical
about a brain transplant (if my brain were put in the body of my twin whose cerebrum
had been removed, I’d exist “in association with” what was once his organism) and a rare
birth defect, dicephalic twinning, where two heads sprout from the same torso.
His solution is to hypothesize that human beings are (for the most part) embodied
minds, and death consequently has two (not just one) meanings: (1)an organism dies in
the biological sense when it loses the capacity for integrated functioning (for which the
best criterion is the circulatory-respiratory criterion); and (2) the embodied mind (the
psychological, rather than the physiological self) ceases to exist when we irreversibly
lose the capacity for consciousness – ie, when there is irreversible loss of function in
those areas of the brain through which consciousness occurs. Note that PVS thus
represents the survival of the organism past the point at which the mind which it
embodies has already ceased to survive.
Getting right to the heart of the discussion two weeks from now; McMahan asks
if it is permissible to take organs from what he calls “an unoccupied organism,” with the
permission of its prior occupant, and decrees that it’s unproblematic.
Dworkin: Introduction to the Philosopher’s Brief (1997)
Oct 15
Notes on assigned reading: week 8
Page 4
Phil 383
SFSU
Rorty
The laws of all but one state now forbid doctors to prescribe lethal pills for
patients who want to kill themselves.
Two states have argued before their federal appeals courts that this prohibition
should be declared unconstitutional by the US Supreme Court, and the circuit courts
agreed.
If the Supreme Court reverses their decision, it might be on the basis of two
versions of a “slippery slope” argument: one theoretical, one practical.
A. The theoretical slippery slope: That right once granted could not be limited by
any principled line that would restrict it to all and only the appropriate cases
a. But: Every competent person has a right to make momentous personal
decisions about life’s value for himself.
b. It is true that people may make such decisions impulsively; but states may
be allowed to prevent assisted suicide who plausibly might later regret it.
i. Dealing with such cases will be a pain in the neck to the courts—
but it is better that they be inconvenienced than that so many
suffer.
B. The practical slippery slope: States will adopt regulations to assure that any
decision for AS will be informed, competent and free—but such regulations
cannot be adequately enforced, and the most vulnerable patients will be hustled
into unwanted decisions.
a. But under the present system, the more privileged can already get around
the prohibition, leading to a ‘two-tier system’
b. –and if regulations are adopted, the result might actually be more
equitably distributed, better end-of-life care for everyone, including the
more vulnerable.
If the court closes the door to a constitutional right to PAS, it will have to do so by
EITHER
--denying that people do not have, even in principle, the right to control
their own deaths—
calling into question the long-standing right of people to demand
the withdrawal of life-sustaining tx,
OR
--allowing individual states to get out of supporting constitutional rights
because it’s just too hard, either in terms of will or resources.
The Philosopher’s Brief
Introduction
There is an important liberty interest at stake in these cases.
Those who argue against that point do so either by denying there is such a liberty interest,
or claiming that it would be too difficult to recognize it if there were one.
Argument
1. The liberty interest at stake is supported by ‘due process’ clause of the 14th
amendment.:
[“No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
Oct 15
Notes on assigned reading: week 8
Page 5
Phil 383
SFSU
Rorty
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.”]
2.—and previous court cases have cited it in support of similar liberty interests.
Cf. Planned Parenthood v. Casey and Cruzan
Some people claim that the liberty interest upheld by Cruzan –the
right to refuse or have withdrawn treatment—is different than the right to
receive an active intervention to end life; the former is merely an omission
—not a commission. (p. 491) We maintain that there is no
important moral difference between the two.
The difference between acts of omission and acts of commission
has a long history, and is discussed at some length in an article on
active and passive euthanasia by James Rachels. (See “Killing
and Letting Die” on the website, from The End of Life , 1986)
There is one important distinction between the two kinds of case: Patients have in
principle the right to compel the removal of life support machinery from their
body. But they do not have the right to compel a physician to assist in their death.
“The right is only to the help of a willing doctor.” (492)
3--State interests do not justify a categorical prohibition
The Cruzan precedent says the risk of death is not sufficient to override the liberty
interest, and states have not proved incapable of addressing that interest.
Protocols even for withdrawing tx require the patient to be competent, informed
and free—and so will these. Those have been deemed sufficient for withdrawal.
The two risks are that the information on which his consent for PAS might be
wrong, and that a request for PAS may be subject to coercion; and neither of those
are sufficient to override the strong liberty interest this case represents.
Conclusion
Affirming (rather than overriding) the decisions of the courts of appeals establishes
nothing more than that there is a constitutionally protected liberty right in principle to
request the assistance of a physician in achieving a free and informed death.
Battin: Euthanasia: The Way We Do It, the Way They Do It
Battin discusses legal options in three countries: the US, where (with the
exception of Oregon) only withholding and withdrawing LST is allowed; the
Netherlands, where voluntary active euthanasia and physician assistance in suicide are
legal; and Germany, where assistance in suicide (from non-physicians) has not been
illegal since 1742.
Problems with the three models: For the Germans, forbidding physicians to
participate increases the risks of false diagnosis and of undiagnosed impaired judgment.
There are concerns that the Dutch practice reduces incentives for good terminal care
(although there seems no evidence of that); and some fear that the Dutch will gradually
abandon their strong emphasis on the voluntariness of the decision (cf. Battin on the
‘slippery slope,’ p. 503)
The US model is the most dangerous of the three, since (a) non-treatment is less
conspicuous so invites less protections; (b) relying on withholding and withdrawing tx
invites rationing—“a particular problem where health care financing is decentralized,
Oct 15
Notes on assigned reading: week 8
Page 6
Phil 383
SFSU
Rorty
profit oriented and non-universal” (p. 504): and (c) it may be the cruelest of the options
available. The ways diseases kill people can be far more cruel than the ways physicians
kill patients in euthanasia or assisting suicide.
The three models each have advantages and disadvantages. Which should we
adopt? The Dutch have much closer and consistent contact with a physician who knows
them (and pays house visits) than we do. Their model for us would often lead to death at
the hands of strangers. The US has a more confrontational culture, and a more volatile
(and litigious) legal climate than either the Netherlands or Germany. And the biggest
difference: both the other countries have national health care, removing financial
considerations from decisions about how to die.
Oct 15
Notes on assigned reading: week 8
Page 7