The neurological criteria for the determination of death remain controversial within secular and Catholic circles, even though they are widely accepted within the medical community. In Determining Death by Neurological Criteria, Matthew Hanley offers both a practical and a philosophical defense. Hanley shows that the criteria are often misapplied in clinical settings, leading to cases where persons declared dead apparently spontaneously revive. These instances are often connected to a rushed decision to retrieve donated (...) organs, thus undermining the trust of the public in organ donation. Hanley calls on health care institutions to take seriously their obligation to establish strict protocols for the determination of death, including who may conduct the examinations. From a broader perspective, Hanley considers how the criteria rely on a philosophical conception of the person as a living organism whose unity disintegrates at death. This view, he notes, corresponds to the Catholic conviction that the soul is the life-principle of the body, which departs at death, bringing about the destruction of the body-soul composite. The Vatican, recognizing that death is a medical judgment, has generally given its approval to the criteria. Hanley also reviews the many and various objections offered by detractors, including against the use of the apnea test, which is faulted as a practice that sometimes hastens death. The problem of the continued presence of certain vital functions within the deceased body of the brain dead is explored in detail, with reference to particular cases and to solutions proposed by leading physicians and bioethicists. Hanley likewise addresses the dilemma of having two separate standards for death, one neurological and the other cardiopulmonary. Given the possibility of resuscitation following loss of the cardio-circulatory system, he concludes that the neurological criteria must be the true standard. Stoppage of the heart leads swiftly to the final necrosis of the brain. -- Provided by publisher. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Incoherence of Determining Death by Neurological Criteria: A Commentary on Controversies in the Determination of Death, A White Paper by the President’s Council on Bioethics*Franklin G. Miller** (bio) and Robert D. Truog (bio)Traditionally the cessation of breathing and heart beat has marked the passage from life to death. Shortly after death was determined, the body became a cold corpse, suitable for burial (...) or cremation. Two technological changes in the second half of the twentieth century prompted calls for a new, or at least expanded, definition of death: the development of intensive care medicine, especially the use of mechanical ventilators, and the advent of successful transplantation of vital organs. Patients with profound neurological damage, leaving them incapable of breathing on their own and in an irreversible coma, could be maintained for some period of time with the aid of mechanical ventilation. The situation of these patients posed two ethical questions. Is it appropriate to stop life-sustaining treatment? If so, is it acceptable to retrieve vital organs for transplantation to save the lives of others before stopping treatment?In 1968, the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death proposed that death could be determined on the basis of neurological criteria, thus providing a positive answer to these two questions (Ad Hoc Committee 1968). According to the position of this committee, patients diagnosed with the cessation of brain function are dead, despite the fact that they breathe and circulate blood with the aid of mechanical ventilation. [End Page 185] Because they are dead, it is appropriate, indeed imperative, to stop mechanical ventilation. And because they are dead, it becomes ethical to procure vital organs for transplantation before stopping what otherwise would be life-sustaining treatment. Remarkably, this innovative neurological determination of death became, with little debate or controversy, the established position in medical ethics and the law throughout the United States.The Harvard Committee articulated the diagnosis of “irreversible coma,” but merely asserted that this condition constituted death. No explanatory rationale was provided. It fell to the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research to provide an authoritative rationale in its 1981 report, Defining Death. The second paragraph of the report set the stage as follows: “The question addressed here is not inherently difficult or complicated. Simply, it is whether the law ought to recognize new means for establishing that the death of a human being has occurred” (President’s Commission 1981, p. 3). The Commission claimed that “death is a unitary phenomenon” (p. 7) and that the determination of death by neurological criteria, in terms of the absence of all brain function, is consistent with the traditional conception of death as the cessation of vital functioning of the organism as a whole. The key issue is the integrative functioning of the human organism, which ceases to exist, according to the Commission, when the whole brain, including higher cortical areas and the brain stem, fails to function. Although “brain-dead” patients do not appear to be dead—i.e., the reality of their death is “masked” by the activity of mechanical ventilation—the patient’s body has irreversibly lost all capacity for integrative functioning. In the words of the Commission: “When artificial means of support mask this loss of integration as measured by the old methods [cessation of respiration and heart beat], brain-oriented criteria and tests provide a new window on the same phenomenon” (p. 33). The President’s Commission was instrumental in developing and establishing “The Uniform Definition of Death Act”: “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” (p. 2).Although the question posed by the President’s Commission was easy to articulate, the answer, over time, has proved complicated and controversial. The coherence and cogency of determining death by neurological criteria has been challenged. Various experts have demonstrated that “brain-dead” patients maintained on mechanical ventilation display a range of vital, integrative, functioning, which conflicts with the judgment that they are dead (Truog and... (shrink)

Although death by neurologic criteria is legally recognized throughout the United States, state laws and clinical practice vary concerning three key issues: the medical standards used to determine death by neurologic criteria, management of family objections before determination of death by neurologic criteria, and management of religious objections to declaration of death by neurologic criteria. The American Academy of Neurology and other medical stakeholder organizations involved in the determination of death by (...) neurologic criteria have undertaken concerted action to address variation in clinical practice in order to ensure the integrity of brain death determination. To complement this effort, state policymakers must revise legislation on the use of neurologic criteria to declare death. We review the legal history and current laws regarding neurologic criteria to declare death and offer proposed revisions to the Uniform Determination of Death Act and the rationale for these recommendations. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Incoherence of Determining Death by Neurological Criteria: A Commentary on Controversies in the Determination of Death, A White Paper by the President’s Council on Bioethics*Franklin G. Miller** (bio) and Robert D. Truog (bio)Traditionally the cessation of breathing and heart beat has marked the passage from life to death. Shortly after death was determined, the body became a cold corpse, suitable for burial (...) or cremation. Two technological changes in the second half of the twentieth century prompted calls for a new, or at least expanded, definition of death: the development of intensive care medicine, especially the use of mechanical ventilators, and the advent of successful transplantation of vital organs. Patients with profound neurological damage, leaving them incapable of breathing on their own and in an irreversible coma, could be maintained for some period of time with the aid of mechanical ventilation. The situation of these patients posed two ethical questions. Is it appropriate to stop life-sustaining treatment? If so, is it acceptable to retrieve vital organs for transplantation to save the lives of others before stopping treatment?In 1968, the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death proposed that death could be determined on the basis of neurological criteria, thus providing a positive answer to these two questions (Ad Hoc Committee 1968). According to the position of this committee, patients diagnosed with the cessation of brain function are dead, despite the fact that they breathe and circulate blood with the aid of mechanical ventilation. [End Page 185] Because they are dead, it is appropriate, indeed imperative, to stop mechanical ventilation. And because they are dead, it becomes ethical to procure vital organs for transplantation before stopping what otherwise would be life-sustaining treatment. Remarkably, this innovative neurological determination of death became, with little debate or controversy, the established position in medical ethics and the law throughout the United States.The Harvard Committee articulated the diagnosis of “irreversible coma,” but merely asserted that this condition constituted death. No explanatory rationale was provided. It fell to the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research to provide an authoritative rationale in its 1981 report, Defining Death. The second paragraph of the report set the stage as follows: “The question addressed here is not inherently difficult or complicated. Simply, it is whether the law ought to recognize new means for establishing that the death of a human being has occurred” (President’s Commission 1981, p. 3). The Commission claimed that “death is a unitary phenomenon” (p. 7) and that the determination of death by neurological criteria, in terms of the absence of all brain function, is consistent with the traditional conception of death as the cessation of vital functioning of the organism as a whole. The key issue is the integrative functioning of the human organism, which ceases to exist, according to the Commission, when the whole brain, including higher cortical areas and the brain stem, fails to function. Although “brain-dead” patients do not appear to be dead—i.e., the reality of their death is “masked” by the activity of mechanical ventilation—the patient’s body has irreversibly lost all capacity for integrative functioning. In the words of the Commission: “When artificial means of support mask this loss of integration as measured by the old methods [cessation of respiration and heart beat], brain-oriented criteria and tests provide a new window on the same phenomenon” (p. 33). The President’s Commission was instrumental in developing and establishing “The Uniform Definition of Death Act”: “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” (p. 2).Although the question posed by the President’s Commission was easy to articulate, the answer, over time, has proved complicated and controversial. The coherence and cogency of determining death by neurological criteria has been challenged. Various experts have demonstrated that “brain-dead” patients maintained on mechanical ventilation display a range of vital, integrative, functioning, which conflicts with the judgment that they are dead (Truog and... (shrink)

In “An Overview of Ethical Challenges Raised by Medicolegal Challenges to Death by Neurologic Criteria in the United Kingdom and a Comparison to Management of these Challenges in the USA,” Ariane L...

Ariane Lewis reviewed medicolegal challenges to Death by Neurologic Criteria (DNC) in the United Kingdom in order to identify and discuss the ethical issues raised (Lewis 2024). Here I briefly clar...

Although medicolegal challenges to the use of neurologic criteria to declare death in the USA have been well-described, the management of court cases in the United Kingdom about objections to the use of neurologic criteria to declare death has not been explored in the bioethics or medical literature. This article (1) reviews conceptual, medical and legal differences between death by neurologic criteria (DNC) in the United Kingdom and the rest of the world to contextualize (...) medicolegal challenges to DNC; (2) summarizes highly publicized legal cases related to DNC in the United Kingdom, including the nuanced 2022 case of Archie Battersbee, who was transiently considered dead by neurologic criteria, but ultimately determined to be in a vegetative state/unresponsive-wakeful state; and (3) provides an overview of ethical issues raised by medicolegal challenges to DNC in the United Kingdom and a comparison to the management of these challenges in the USA. (shrink)

Human life and death should be defined biologically. It is important not to conflate the definition of death with the criteria for when it has occurred. What is distinctively "human" from a scientific or normative perspective has nothing to do with what makes humans alive or dead. We are biological organisms, despite the fact that what is meaningful about human life is not defined in biological terms. Consequently, as in the rest of the realm of living beings, (...) human beings die when they no longer function biologically as organisms. In contrast, a determination of exactly when death has occurred, required to serve various social purposes, combines social and normative considerations with biological facts. (shrink)

The diagnosis of death by neurological criteria (colloquially known as ‘brain death’) is accepted in some form in law and medical practice throughout the world, and has been endorsed in principle by the Catholic Church. However, the rationale for this acceptance has been challenged by the accumulation of evidence of integrated vital activity in bodies diagnosed dead by neurological criteria. This paper sets out 10 different Catholic responses to the current crisis of confidence and (...) assesses them in relation to a Catholic understanding of philosophical anthropology. Having considered each of these responses, none is found to provide good grounds for the moral certainty about death needed for current transplant practice to be ethically acceptable. Unless adequate grounds for the use of neurological criteria can be restored, current transplantation practice will have become what Pope John Paul II called a ‘furtive, but no less serious and real, form of euthanasia’. (shrink)

Death by neurological criteria (DNC) continues to stir global controversy. Philosophers and theologians contest its moral significance, clinicians and bioscientists debate its probative accuracy, a...

Maddie’s story illustrates the critical importance of healthcare teams (HCTs) having inclusive multidisciplinary provider meetings prior to siloed conversations with families. It is paramount that...

Controversies surrounding the determination of death by neurologic criteria (DNC), also known as brain death, have become increasingly common over the last decade, occasionally leading to parental refusal of all or part of an evaluation or declaration of DNC. We performed a prospective, crosssectional study of pediatric neurologists and intensivists who participate in professional listservs to ascertain perspectives and practices concerning the evaluation of DNC, specifically on obtaining permission for evaluations and managing refusals. Of the 334 respondents (...) who had performed an evaluation for DNC, 35 percent reported they had experienced at least one parental refusal, and 64.4 percent reported that they did not seek permission to perform an evaluation. Pediatric neurologists, careproviders who had less experience doing evaluations, and careproviders who had experienced parental refusal of an evaluation were more likely to obtain permission from parents. Most (80.8 percent) of respondents reported that their institution had a DNC policy. We found variability in many aspects of DNC evaluations and declarations, as well as the handling of refusals. Lack of consistency may make it more difficult for careproviders and families. Greater understanding of parental refusal of DNC evaluation is essential to inform efforts to increase consistency. (shrink)

This commentary challenges the conclusions reached by Franklin Miller and Robert Truog in their criticism of the President's Council's White Paper, "Controversies in the Determination of Death." I agree with much of Miller and Truog's criticism of the rationale offered by the President's Council for accepting neurological criteria for determining death but argue that they too quickly dismiss the alternative rationale of determining death by neurological criteria-i.e., the destruction of the psychophysical integrity of (...) the human being that occurs when the potential for consciousness and every other mental function is lost due to catastrophic injury to the brain. By focusing on the death of bodies instead of human beings, their view absurdly implies that decapitation would not necessarily result in one's death. Since total brain failure is a form of physiological decapitation, the neurological criterion coheres perfectly well with the ordinary understanding of decapitation as death. (shrink)

Volume 20, Issue 6, June 2020, Page 30-32.

Typically, the determination of death by neurological criteria follows a very specific protocol. An apnea test is performed with further confirmation as necessary, and then mechanical ventilation is withdrawn with the consent of the family after they have had an opportunity to “say goodbye,” and at such a time to permit organ retrieval (with authorization of the patient or consent of the next of kin). Such a process maximizes transparency and ensures generalizability. In exceptional circumstances, however, it (...) may be necessary to deviate from this protocol in order to spare family members unnecessary suffering and to reduce moral distress felt by clinical staff. It may also be appropriate, we argue, to refrain from even inquiring about organ donation when the next-of-kin is not only certain to refuse, but lacks the decision-making capacity to potentially consent. The case described in this article calls into question generally reliable assumptions about determination of death by neurological criteria, where the best the clinical team could do for the patient and his family was “the least bad option.”. (shrink)

Volume 20, Issue 6, June 2020, Page 33-35.

Ethical concerns regarding the conceptual framework for the determination of death by neurological criteria, including several clinical and diagnostic practices, are addressed. The significance of a diagnosis of brain death, diagnostic criteria, and certain technical aspects of the brain-death exam are presented. Standard and ancillary tests that typically help achieve prudential certitude that an individual has died are indicated. Ethical concerns surrounding interinstitutional variability of testing protocols are evaluated and considered, as are potential apnea-testing (...) confounders such as hypotension, hypoxemia, hypercarbia, and penumbra effects during ancillary testing. Potential adjustments to apnea-testing protocols involving capnography, thoracic impedance monitors, or spirometers to assess respiratory efforts are discussed. Situations in which individuals determined to be brain dead “wake up,” or fail to manifest the imminent cessation of somatic functioning typically seen when supported only by a ventilator, are also briefly reviewed. (shrink)

Drawing on two years of ethnographic fieldwork in Egypt focused on organ transplantation, this paper examines the ways in which the “scientific” criteria of determining death in terms of brain function are contested by Egyptian doctors. Whereas in North American medical practice, the death of the “person” is associated with the cessation of brain function, in Egypt, any sign of biological life is evidence of the persistence, even if fleeting, of the soul. I argue that this difference (...) does not exemplify an irresolvable culture clash but points to an unsettling aspect of cadaveric organ procurement that has emerged wherever organ transplantation is practiced. Further, I argue that a misdiagnosis of the problem, as one about “religious extremism” or a “civilizational clash,” has obfuscated unresolved concerns about fairness, access, and justice within Egyptian medical spheres. This misdiagnosis has led to the suspension of a cadaveric procurement program for over 30 years, despite Egypt’s pioneering efforts in kidney transplantation. (shrink)

Navigating tragic circumstances in pediatrics requires consideration of parental grief responses. We meet parents where they are, not where we might want them to be. Different parents grieve differ...

In popular culture, death is typically presented as clear and binary- someone is either walking and talking and alive, or very obviously still and dead. Reality is more complicated than the movies,...

The determination of death by neurological criteria (brain death) is practiced in at least 80 countries, though it is a matter of continuing controversy. At the same time, the brain is central to human life, thinking, and behavior; however, a growing “neurocentrism” or a brain‐focused image of human identity became established in most Western and in many non‐Western societies and acts as a forceful ideology. This paper seeks a broader theoretical and sociocultural basis to approaching (...) class='Hi'>death bioethically by analyzing criticisms aimed at a neurologically focussed vision of human life, and then turning these towards the brain death criteria exposed to the criticism. The overall critique of the “neuro‐self” has scope to offer alternative perspectives to the contested issues in brain‐death criteria. Specifically, the paper examines two major shortcomings of a narrow brain view of life and culture. First, it considers the reduction of the individual to the brain: this is the crux of the neurological way of determining death, and is a way that is seemingly context‐independent and culturally neutral. Second, it considers how dimensions of society and culture for humans are detached from the brain and have little impact on clinical practice and thinking in brain‐death criteria; however, a deeper exploration reveals that they actually have direct relevance and that social and cultural factors have greater contributions to make to the current debates. (shrink)

One of the most important questions when determining when it is appropriate to procure organs from a deceased organ donor is what can be considered death. Currently, there is significant debate over whether brain death is an appropriate method of declaring an individual dead. As it would be illicit to cause the death of a patient by removing their organs, a medical professional must be certain that a brain dead patient is, in fact, dead before the procedure. (...) In this paper, the author makes the case in support of considering brain death actual death. (shrink)

In The Gospel of Life, Pope John Paul II encouraged organ donation as a genuine act of charity. Some Catholics reject the notion of vital organ transplantation and the use of neurological criteria to determine a donor’s death before organs are extracted. This article reviews Church teaching on the use of neurological criteria for determining death—including statements by three popes, a number of pontifical academies and councils, and the U.S. bishops—to show that Catholics may (...) in good conscience offer the gift of life through the donation of their organs after death as determined by those criteria, and may in good conscience receive such organs. This article is not a defense of the legitimacy of neurological criteria for determining death but rather a presentation of the moral guidance currently offered by the Church on the legitimacy of organ donation after death has been determined by their use. National Catholic Bioethics Quarterly 11.2 (Summer 2011): 279–299. (shrink)

Prolonged survival after the declaration of death by neurologic criteria creates ambiguity regarding the validity of this methodology. This ambiguity has perpetuated the debate among secular and nondissenting Catholic authors who question whether the neurologic standards are sufficient for the declaration of death of organ donors. Cardiopulmonary criteria are being increasingly used for organ donors who do not meet brain death standards. However, cardiopulmonary criteria are plagued by conflict of interest issues, arbitrary standards for (...) candidacy, and the lack of standardized protocols for organ procurement. Combining the neurological and cardiopulmonary standards into a single protocol would mitigate the weaknesses of both and provide greater biologic and moral certainty that a donor of unpaired vital organs is indeed dead. (shrink)

Some patients who have been diagnosed as “dead by neurologic criteria” continue to exhibit certain brain functions, most commonly, neuroendocrine functions. This preservation of neurologic function after the diagnosis of “brain death” or “brainstem death” is an ongoing source of controversy and concern in the medical, bioethics, and legal literatures. Most obviously, if some brain function persists, then it is not the case that all functions of the entire brain have ceased and hence, declaring such a patient (...) to be “dead” would be a false positive, in any nation with so-called “whole brain death” laws. Furthermore, and perhaps more concerning, the preservation of any brain function necessarily entails the preservation of some amount of brain perfusion, thereby raising the concern as to whether additional areas of neural tissue may remain viable, including areas in the brainstem. These and other considerations cast significant doubt on the reliability of diagnosing either “brain death” or “brainstem death.”. (shrink)

A major appellate court decision from the United States seriously questions the legal sufficiency of prevailing medical criteria for the determination of death by neurological criteria. There may be a mismatch between legal and medical standards for brain death, requiring the amendment of either or both. In South Australia, a Bill seeks to establish a legal right for a defined category of persons suffering unbearably to request voluntary euthanasia. However, an essential criterion of a voluntary (...) decision is that it is not tainted by undue influence, and this Bill falls short of providing adequate guidance to assess for undue influence. (shrink)

The determination of death by neurological criteria—“brain death”—has long been legally established as death in all U.S. jurisdictions. Moreover, the consequences of determining brain death have been clear. Except for organ donation and in a few rare and narrow cases, clinicians withdraw physiological support shortly after determining brain death. Until recently, there has been almost zero action in U.S. legislatures, courts, or agencies either to eliminate or to change the legal status of brain (...) death. Despite ongoing academic debates, the law concerning brain death has remained stable for decades. However, since the Jahi McMath case in 2013, this legal certainty has been increasingly challenged. Over the past five years, more families have been emboldened to translate their concerns into legal claims challenging traditional brain death rules. While novel, these claims are not frivolous. Therefore, it is important to understand them so that we can address them most effectively. (shrink)

In 1968 the authors of the so-called Harvard Report, proposed the recognition of an irreversible coma as a new criterion for death. The proposal was accepted by the medical, legal, religious and political circles in spite of the lack of any explanation why the irreversible coma combined with the absence of brainstem reflexes, including the respiratory reflex might be equated to death. Such an explanation was formulated in the President’s Commission Report published in 1981. This document stated, that (...) the brain is the central integrator of the body, therefore the destruction of the brain results in the lack of that integration and the death of the organism. Therefore, according to that document, the so-called “brain dead” patients are really, biologically dead; strictly speaking they are not any more biological organisms but collections of organs and tissues. Their death was masked by the use of the medical equipment, but it was a real, biological death. Thus, the explanation given by the President’s Commission Report constituted a biological rationale for the new concept of death, known as “brain death.” However, after the long discussion, this rationale was refuted because of the evidence given by many medical authorities, that the bodies of the “brain dead” and “brainstem dead” patients are alive. In the context of the discussion about the neurological criteria for death, some authors follow the idea of Plato, that human being is the soul or mind, and the body does not belong to the human essence. Therefore, the loss of consciousness, which may be identified with the mind, constitutes the loss of personhood and may be interpreted as human death. The other group stresses the Aristotelian and Thomistic concept that the body belongs to the essence of every living creature, including human. Therefore, as long as the body is alive, the human being is alive and we cannot call the given patient dead even if he is deeply comatose. Moreover, in spite of the opinions dominating in the mass-media, these patients should be considered not only alive but also may be conscious to some degree and their state can be reversible. Their brains are lacking the electrical functions, but the neuronal tissue is alive and that state is reversible for at least first 48 hours since the onset of coma; this phenomenon is called “global ischemic penumbra” and is responsible for the regularly happening events interpreted as miracles, when some of the “brain dead” or “brainstem dead” patients turn to be alive and come back to normal life. Therefore, the neurological criteria of death are still lacking generally accepted scientific basis and should not be used in medicine and in the legal systems as a basis for diagnosing comatose/having no brainstem reflexes/apneic patients dead. (shrink)

Berkowitz and Garrett (2020) raise important arguments in favor of consent for apnea testing used in determining death by neurological criteria (DNC); and yet, a fundamental consideration is left u...

In 1968, the Harvard criteria equated irreversible coma and apnea with human death and later, the Uniform Determination of Death Act was enacted permitting organ procurement from heart-beating donors. Since then, clinical studies have defined a spectrum of states of impaired consciousness in human beings: coma, akinetic mutism, minimally conscious state, vegetative state and brain death. In this article, we argue against the validity of the Harvard criteria for equating brain death with human (...) class='Hi'>death. Brain death does not disrupt somatic integrative unity and coordinated biological functioning of a living organism. Neurological criteria of human death fail to determine the precise moment of an organism’s death when death is established by circulatory criterion in other states of impaired consciousness for organ procurement with non-heart-beating donation protocols. The criterion of circulatory arrest 75 s to 5 min is too short for irreversible cessation of whole brain functions and respiration controlled by the brain stem. Brain -based criteria for determining death with a beating heart exclude relevant anthropologic, psychosocial, cultural, and religious aspects of death and dying in society. Clinical guidelines for determining brain death are not consistently validated by the presence of irreversible brain stem ischemic injury or necrosis on autopsy; therefore, they do not completely exclude reversible loss of integrated neurological functions in donors. The questionable reliability and varying compliance with these guidelines among institutions amplify the risk of determining reversible states of impaired consciousness as irreversible brain death. The scientific uncertainty of defining and determining states of impaired consciousness including brain death have been neither disclosed to the general public nor broadly debated by the medical community or by legal and religious scholars. Heart-beating or non-heart-beating organ procurement from patients with impaired consciousness is de facto a concealed practice of physician-assisted death, and therefore, violates both criminal law and the central tenet of medicine not to do harm to patients. Society must decide if physician-assisted death is permissible and desirable to resolve the conflict about procuring organs from patients with impaired consciousness within the context of the perceived need to enhance the supply of transplantable organs. (shrink)

Background There is lack of consensus in the bioethics literature regarding the use of cardiopulmonary resuscitation (CPR) for organ-preserving purposes. In this study, we assessed the perspectives of clinicians in critical care settings to better inform donor management policy and practice.Methods An online anonymous survey of members of the Society of Critical Care Medicine that presented various scenarios about CPR for organ preservation.Results The email was sent to 10,340 members. It was opened by 5,416 (52%) of members and 405 members (...) (4%) completed the survey with few missing data. A majority of respondents (81%) answered that donation status should not influence whether CPR is performed on an imminently dying patient. There was very strong agreement (>85%) that 1) CPR should be performed on a registered donor who experiences a cardiac arrest with an unknown code status before death by neurological criteria (DNC) and 2) CPR should be performed if the patient is not a registered donor and experiences cardiac arrest but the surrogate/power of attorney (POA) has not yet been approached regarding code status and donation. When a registered donor with a DNR order experiences cardiac arrest before DNC, 98% of respondents would not perform CPR. However, after DNC, respondents were evenly divided on whether they would (49%) or would not (51%) perform CPR on a registered donor with an undocumented code status. When asked whether consent should be required for CPR for organ-preserving purposes, 39% answered “Yes” when a patient arrests before DNC and 48% answered “Yes” when a patient arrests after DNC (P = 0.2).Conclusions The majority of respondents did not consider donor status relevant to CPR decisions before DNC, and virtually all would respect a DNR order in a registered donor before DNC. Respondents were divided about the need for an affirmative consent for CPR for organ-preserving purposes both before and after DNC. (shrink)

Brain death, or the determination of death by neurological criteria, has been described as a legal fiction. Legal fictions are devices by which the law treats two analogous things (in this case, biological death and brain death) in the same way so that the law developed for one can also cover the other. Some scholars argue that brain death should be understood as a fiction for two reasons: the way brain death is (...) determined does not actually satisfy legal criteria requiring the permanent cessation of all brain function, and brain death is not consistent with the biological conception of death as involving the irreversible cessation of the functioning of an organism as a whole. Critics counter that the idea that brain death is a legal fiction is deceptive and undemocratic. I will argue that diagnosing brain death as a hidden legal fiction is a helpful way to understand its historical development and current status. For the legal‐fictions approach to be ethically justifiable, however, the fact that brain death is a legal fiction not aligned with the standard biological conception of death must be acknowledged and made transparent. (shrink)

In this article I examine the question of how a liberal state should go about defining death. Plausible standards for a definition of death include a somatic one based on circulatory criteria, death by neurologic criteria (DNC), and higher brain death. I will argue that Rawlsian “burdens of judgment” apply in this process: that is, reasonable disagreement should be expected on important topics, and such disagreement ought not be resolved via the coercive powers of (...) the state. Nevertheless, the state must legislate a definition of death, and in doing so faces a “neutralist dilemma,” that is, when there are multiple reasonable ways to move forward, only one can be chosen. I will examine a possible way to exit this neutralist dilemma. Finally, I will argue for DNC as the normatively preferred default definition of death. To do this, I will employ the Rawlsian heuristic of the “original position” and offer public reasons in favor of using DNC as the preferred default definition of death. (shrink)

The recently published World Brain Death Project aims in alleviating inconsistencies in clinical guidelines and practice in the determination of death by neurologic criteria. However, critics have taken issue with a number of epistemic and metaphysical assertions that critics argue are either false, ad hoc, or confused. In this commentary, I discuss the nature of a definition of death; the plausibility of neurologic criteria as a sensible social, medical, and legal policy; and within a Rawlsian (...) liberal framework, reasons for personal choice or accommodation among neurologic and circulatory definitions. Declaration of human death cannot rest on contested metaphysics or unmeasurable standards, instead it should be regarded as a plausible and widely accepted social construct that conforms to best available and pragmatic medical science and practice. The definition(s) and criteria should be transparent, publicly justifiable, and potentially allow for the accommodation of reasonable choice. This is an approach that situates the definition of death as a political matter. The approach anticipates that no conceptualization of death can claim universal validity, since this is a question that cannot be settled solely on biologic or scientific grounds, rather it is a matter of normative preference, socially constructed and historically contingent. (shrink)

The determination of death by neurological criteria remains controversial scientifically, culturally, and legally, worldwide. In the United Kingdom, although the determination of death by neurological criteria is not legally codified, the Code of Practice of the Academy of Medical Royal Colleges is customarily used for neurological death determination and treatment withdrawal. Unlike some states in the US, however, there are no provisions under the law requiring accommodation of and respect for residents' religious (...) rights and commitments when secular conceptions of death based on medical codes and practices conflict with a traditional concept well-grounded in religious and cultural values and practices. In this article, we analyse the medical, ethical, and legal issues that were generated by the recent judgement of the High Court of England and Wales in Re: A [2015] EWHC 443. Mechanical ventilation was withdrawn in this case despite parental religious objection to a determination of death based on the code of practice. We outline contemporary evidence that has refuted the reliability of tests of brainstem function to ascertain the two conjunctive clinical criteria for the determination of death that are stipulated in the code of practice: irreversible loss of capacity for consciousness and somatic integration of bodily biological functions. We argue that: the tests of brainstem function were not properly undertaken in this case; the two conjunctive clinical criteria set forth in the code of practice cannot be reliably confirmed by these tests in any event; and absent authentication of the clinical criteria of death, the code of practice wrongly invokes a secular definition of death based on the loss of personhood. Consequently, the moral obligation of a pluralistic society to honor and respect diverse religious convictions to the greatest extent possible is being violated. Re A is contrasted with the US case of Jahi McMath in which the court accommodated parental religious objection to the determination of neurological death codified in the Uniform Determination of Death Act. We conclude that the legal system in the United Kingdom should not favour a secular definition of death over a definition of death that is respectful of religious values about the inviolability and sanctity of life. We recommend the legal recognition of religious accommodation in death determination to facilitate cultural sensitivity and compassionate care to patients and families in a pluralistic society. (shrink)

Ariane Lewis provided an insightful review of several controversial cases of death by neurologic criteria (“brain death”) in the UK, focusing on Archie Battersbee, a boy whose tragic illness provok...

Since its inception in 1968, the concept of whole-brain death has been contentious, and four decades on, controversy concerning the validity and coherence of whole-brain death continues unabated. Although whole-brain death is legally recognized and medically entrenched in the United States and elsewhere, there is reasonable disagreement among physicians, philosophers, and the public concerning whether brain death is really equivalent to death as it has been traditionally understood. A handful of states have acknowledged this plurality (...) of viewpoints and enacted “conscience clauses” that require “reasonable accommodation” of religious and moral objections to the determination of death by neurological criteria. This paper argues for the universal adoption of “reasonable accommodation” policies using the New Jersey statute as a model, in light of both the ongoing controversy and the recent case of Jahi McMath, a child whose family raised religious objections to a declaration of brain death. Public policies that accommodate reasonable, divergent viewpoints concerning death provide a practical and compassionate way to resolve those conflicts that are the most urgent, painful, and difficult to reconcile. (shrink)

In the fall of 2021 a news story reported of a successful experimental xenotransplant of a genetically engineered pig kidney in to the circulatory system of a research subject who was dead by neurological criteria. Although not a first of its kind, this case raises the issue of the ethics of research on those declared brain dead. Such possibilities have been discussed in the published literature since 1974, when Willard Gaylin expressed concern over human dignity when he imagined (...) hospital wards filled with “neomorts” used for education, teaching, research, and manufacturing. In this essay, the author explores the nuances of whether such subjects are considered alive, dead, or something in between. Notions of consent/ permission and risk/benefit are determined by this categorization. After discussing the 2005 Consensus Panel Guidelines on Research with the Recently Dead, the essay concludes with the need for a liminal state between living and dead that respects human dignity but also recognizes the utilitarian value of such experiments to protect fully alive humans. Having not just guidelines but oversight structures such as the University of Pittsburgh’s Committee for Oversight of Research Involving the Dead (CORID) and regulations are necessary if such work is to become more common. (shrink)

Brain death, or death by neurological criteria (BD/DNC) is the permanent loss of brain function as defined by an unresponsive coma, loss of brainstem reflexes, and the ability to breathe without me...

The determination of death by neurological criteria remains controversial scientifically, culturally, and legally, worldwide. In the United Kingdom, although the determination of death by neurological criteria is not legally codified, the Code of Practice of the Academy of Medical Royal Colleges is customarily used for neurological death determination and treatment withdrawal. Unlike some states in the US, however, there are no provisions under the law requiring accommodation of and respect for residents' religious (...) rights and commitments when secular conceptions of death based on medical codes and practices conflict with a traditional concept well-grounded in religious and cultural values and practices. In this article, we analyse the medical, ethical, and legal issues that were generated by the recent judgement of the High Court of England and Wales in Re: A [2015] EWHC 443. Mechanical ventilation was withdrawn in this case despite parental religious objection to a determination of death based on the code of practice. We outline contemporary evidence that has refuted the reliability of tests of brainstem function to ascertain the two conjunctive clinical criteria for the determination of death that are stipulated in the code of practice: irreversible loss of capacity for consciousness and somatic integration of bodily biological functions. We argue that: the tests of brainstem function were not properly undertaken in this case; the two conjunctive clinical criteria set forth in the code of practice cannot be reliably confirmed by these tests in any event; and absent authentication of the clinical criteria of death, the code of practice wrongly invokes a secular definition of death based on the loss of personhood. Consequently, the moral obligation of a pluralistic society to honor and respect diverse religious convictions to the greatest extent possible is being violated. Re A is contrasted with the US case of Jahi McMath in which the court accommodated parental religious objection to the determination of neurological death codified in the Uniform Determination of Death Act. We conclude that the legal system in the United Kingdom should not favour a secular definition of death over a definition of death that is respectful of religious values about the inviolability and sanctity of life. We recommend the legal recognition of religious accommodation in death determination to facilitate cultural sensitivity and compassionate care to patients and families in a pluralistic society. (shrink)

The past decade has witnessed escalating legal and ethical challenges to the diagnosis of death by neurologic criteria. The legal tactic of demanding consent for the apnea test, if successful, can halt the DNC. However, US law is currently unsettled and inconsistent in this matter. Consent has been required in several trial cases in Montana and Kansas but not in Virginia and Nevada. In this paper, we analyze and evaluate the legal and ethical bases for requiring consent before (...) apnea testing and defend such a requirement by appealing to ethical and legal principles of informed consent and battery and the right to refuse medical treatment. We conclude by considering and rebutting two major objections to a consent requirement for apnea testing: a justice-based objection to allocate scarce resources fairly and a social utility objection that halting the diagnosis of brain death will reduce the number of organ donors. (shrink)

We describe and analyze 13 cases handled by our ethics consultation service (ECS) in which families requested continuation of physiological support for loved ones after death by neurological criteria (DNC) had been declared. These ethics consultations took place between 2005 and 2013. Patients’ ages ranged from 14 to 85. Continued mechanical ventilation was the focal intervention sought by all families. The ECS’s advice and recommendations generally promoted “reasonable accommodation” of the requests, balancing compassion for grieving families with (...) other ethical and moral concerns such as stewardship of resources, professional integrity, and moral distress. In cases we characterized as finitegoal accommodation, a “reasonable accommodation” strategy proved effective in balancing stakeholders’ interests and goals, enabling steady progress toward resolution. When a family objected outright to a declaration of DNC and asked for an indefinite accommodation, the “reasonable accommodation” approach offered clinicians little practical direction, and resolution required definitive action by either the family or the clinical team. Based on our analysis and reflections on these 13 cases, we propose ethically justified and practical guidelines to assist healthcare professionals, administrators, and ECSs faced with similar cases. (shrink)

The World Brain Death Project clarified many aspects of the diagnosis of brain death/death by neurologic criteria. Clearer descriptions than previously published were presented concerning the etiology, prerequisites, minimum clinical criteria, apnea testing targets, and indications for ancillary testing. Nevertheless, there remained many epistemic and metaphysical assertions that were either false, ad hoc, or confused. Epistemically, the project was not successful in explaining away remaining brain functions, complex reflexes as “spinal,” the risk and lack of (...) utility of the apnea test, the ignored and often present confounders of central endocrine dysfunction and high-cervical-spinal-cord injury, the limitations of ancillary tests, or the cases of reversibility of some findings of brain death/death by neurologic criteria. Metaphysically, the World Brain Death Project variously suggested different concepts of death that were not supported with argument. Concepts offered included simply restating the criterion of brain death/death by neurologic criteria; personhood, without recognizing it is a higher-brain concept; and emergent functions of the organism as a whole, without specifying what these might be, if not biologic anti-entropic integration that actually remains after brain death/death by neurologic criteria. The World Brain Death Project only offered confused metaphysical discussion, and gave no reason why the state they described as brain death/death by neurologic criteria should be considered death itself. The main epistemic and metaphysical problems with brain death/death by neurologic criteria remain untouched by the World Brain Death Project. (shrink)

Looking to Scripture through the eyes of contemporary medical experience, I analyze the meaning of the criteria used for determining death, specifically in the light of Jesus’ final moments and the resurrection of the Shunammite’s son in 2 Kings, chapter 4. I argue that four theses are consistent with, and informed by, these passages that can help guide Christian belief and decision-making about how death is determined in the clinical context: (1) death is neither permanent nor (...) irreversible; (2) something like the “brain dead” state is, at best, a confounding state that requires one to “pace and pray” or let go; (3) that the case for determining death by neurologic criteria depends on the “working togetherness” of the body's parts for the sake of impacting its environment; and (4) that the practice of neurologically-based death determination is a response to the problem of disaggregation of the human form into its organ systems that modern critical care medicine makes possible. I end with advice about how Christians might approach the debates over the law and practice even if they cannot come to a consensus. (shrink)

In 1968, the definition of death in the United States was expanded to include not just death by cardiopulmonary criteria, but also death by neurologic criteria. We explore the way the definition has been modified by the medical and legal communities over the past 50 years and address the medical, legal and ethical controversies associated with the definition at present, with a particular highlight on the Supreme Court of Nevada Case of Aden Hailu.

Traditionally, people were recognized as being dead using cardio-respiratory criteria: individuals who had permanently stopped breathing and whose heart had permanently stopped beating were dead. Technological developments in the middle of the twentieth century and the advent of the intensive care unit made it possible to sustain cardio-respiratory and other functions in patients with severe brain injury who previously would have lost such functions permanently shortly after sustaining a brain injury. What could and should physicians caring for such patients (...) do? Significant advances in human organ transplantation also played direct and indirect roles in discussions regarding the care of such patients. Because successful transplantation requires that organs be removed from cadavers shortly after death to avoid organ damage due to loss of oxygen, there has been keen interest in knowing precisely when people are dead so that organs could be removed. Criteria for declaring death using neurological criteria developed, and today a whole brain definition of death is widely used and recognized by all 50 states in the United States as an acceptable way to determine death. We explore the ongoing debate over definitions of death, particularly over brain death or death determined using neurological criteria, and the relationship between definitions of death and organ transplantation. (shrink)

Nair-Collins and Joffe (2023) highlight the complexities inherent to the clinical diagnosis of death by neurologic criteria and inconsistencies between legal, scientific, and clinical standards for...

BackgroundThe brain death standard allowing a declaration of death based on neurological criteria is legally endorsed and routinely practiced in the West but not in Asia. In China, attempts to legalize the brain death standard have occurred several times without success. Cultural, religious, and philosophical factors have been proposed to explain this difference, but there is a lack of empirical studies to support this hypothesis.Methods476 medical providers from three academic hospitals in Hunan, China, completed a (...) selfadministered survey including a 12-question brain death clinical knowledge assessment and hypothetical vignettes describing brain dead patients.ResultsThe response rate was 95.2 %. Almost all of the providers had heard of the term “brain death.” More than half have encountered presumed brain dead patients. Two-thirds accepted brain death as an ethical standard to determine human death. The mean knowledge score was 8.50 ± 1.83 out of 12. When given the description of a brain dead patient, 50.7 % considered the patient dead, 51.9 % would withdraw life support, and 40.6 % would allow organ procurement. Both provider and patient characteristics contributed to the providers’ decisions. Ethical acceptance was the most important independent predictor for brain death acknowledgement, followed by high knowledge scores, and the belief that the soul lives in the brain. Religious faith and associated beliefs did not have a significant effect.ConclusionsNotwithstanding scarce official accounts, recognition of the brain death standard is not uncommon in China. Chinese medical providers can adequately define the medical characteristics of brain death and accept it in theory, but hesitate to apply it to practice in the vignettes. Legalization is paramount in providing the protection providers need to comfortably declare brain death. However the medical decision-making surrounding brain death is complex and the provider's past experiences and emotions may also influence the process. (shrink)