2016/10/04 by Ben Sarbey · 2 citations
Medicine · Psychology · #Organ Donation and Transplantation #Grief, Bereavement, and Mental Health #Palliative Care and End-of-Life Issues
paper · pdf · doi:10.1093/jlb/lsw054
openalex publication_date 2016/10/04 · openalex created_date 2025/10/10 · openalex updated_date 2026/07/30
Our concepts and practices relating to death will inevitably be influenced by our values and social practices. Our definitions of what constitutes death affect not only what we consider to count as death, but also questions of grieving, medical treatment, estate planning, organ donation, and a myriad of other legal and ethical issues. As I will argue, what we think of as constituting death is shaped by what we value in persons. However, there is a mismatch between our values and our legal definition of death. The current legal standard of total brain death is inconsistent with what we value in persons. In Section II, I discuss our legal and medical standards for what constitutes death. These definitions include historical and current standards, but also proposed alternative standards. In Section III, I examine what we care about in the death of a person. This will include not only what we currently value in persons, but also what we would value if our beliefs were fully consistent. Finally, in Section IV, I explore ways of synthesizing our definitions of death with what we care about. Traditionally, death has been determined by the medical profession using basic assumed cardiopulmonary standards.1 These standards took the form of using either a heart or lung functioning criteria for death.2 To determine death, physicians would ‘feel for the pulse, listen for breathing, hold a mirror before the nose to test for condensation, and look to see if the pupils were fixed’.3 These medical criteria resulted in determinations which largely mirrored the popular conception of death,4 as there was virtually complete agreement and overlap between the state of medical technology and our conceptions of death. Death went hand in hand with the loss of the capacity to breathe or cessation of the heart pumping blood. However, as medical technology developed, a gap began to form between traditional cardiopulmonary standards and our conceptions of death. For instance, the traditional tests did not suffice as a standard for death in cases of heart transplants.5 Testing for a heartbeat would be unhelpful when a patient did not currently have a heart. Along similar lines, testing for breathing would be insufficient for patients who were in the interim period waiting for lung transplants. To further complicate matters, respiratory and circulatory bodily functions can now be performed artificially, for instance by use of a respirator.6 One of the most significant early pushes toward a precise definition of death occurred in the 1960s, when concerns about advances in technology led an ad hoc committee of Harvard Medical School to develop a set of criteria for what constituted a permanently non-functioning brain—what was called ‘irreversible coma’.7 However, these ‘Harvard criteria’ came to be equated with criteria for brain death.8 The criteria included unreceptivity and unresponsitivity, no movements or breathing, no reflexes, and a flat electroencephalogram.9 However, there was not ‘scientific, philosophical, or logical justification for why the state of irreversible coma could be equated with death’.10 Several states were concerned with issues of transplantation and the legal battle concerning Karen Ann Quinlan, a patient in a persistent vegetative state.11 The Harvard criteria then served as the inspiration for several state laws defining death in response to these issues.12 Further precision in our definitions of death occurred when the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research issued a report on defining death which called for a uniform definition of death based on a ‘total brain’ standard.13 This standard defines death as the death of the entire brain of a person. The Commission sought to address a need for a legal definition of death which could incorporate advances made by new technologies that could perform necessary bodily functions.14 There was a wide agreement between physician testifiers to the Commission that a definition of death which referred to irreversible loss of brain functions was required.15 Among the reasons given for such a definition included the following: Such a law would establish the legality of pronouncing death based on brain criteria. The use of the brain-based standard when the heart–lung standard is not applicable would protect patients against ill-advised, idiosyncratic pronouncements of death. Legal recognition of the brain-based standard would remove the doubt that exists in some states over the use of patients without brain functions as organ donors. A single set of standards for death pronouncements is appropriate for all legal purposes (encompassing inheritance, taxes and criminal trials, as well as medical treatment). Maintaining a dead body on artificial support systems consumes scarce medical resources and may unnecessarily deplete the family's emotional and financial resources.16 It was thus legal problems in several fields which prompted the need for a definition of death, and in particular one which would be uniform throughout the 50 states. The Commission heard testimony from individuals in many disciplines, including medicine, religion, and philosophy.17 It then relied on wide agreement among the testifiers that total brain death is ‘sufficient to determine death of the organism’ to adopt total brain death as its definition of death.18 The Commission's definition of death as total brain death was considered to be ‘sufficient’ in part because ‘patients declared dead pursuant to the statute recommended by the Commission would be also considered dead by those who believe that a body without higher brain functions is dead’.19 While total brain death may not be necessary for death, it may be sufficient in the sense that all cases of total brain death are cases of death. The reverse statement, that all cases of death are cases of total brain death, is thus not addressed. For practical purposes, cases in which there is total brain death can definitively be classified as cases of death, as anyone holding a brain-based standard would assent to such a classification. Every case of ‘total brain’ death would be a case of ‘higher brain’ death, in which case both standards would be met. The total brain standard is what every group espousing a brain-based definition can agree on, in which case it is adopted as a politically pragmatic way of distinguishing the dead from the living. The Commission ultimately recommended a Uniform Determination of Death Act (UDDA) which aimed to make the total brain standard into law in the states.20 This recommendation has been adopted by the American Bar Association and American Medical Association,21 and made into law in some form in all 50 states.22 The UDDA simply states: ’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’.23 This standard, through (1), incorporates the traditional cardiopulmonary test into the modern definition of death. It is (2) which serves as the ‘sufficient’ definition of death which can address more complex cases. Incorporating the cardiopulmonary test thus allows the traditional medical standards to continue to operate, so that doctors need not do an EEG before issuing a death certificate in every individual case. The total brain standard for death represents an advance in the precision with which we have defined death. The total brain standard even helps explain the relevance of the traditional cardiopulmonary criteria for death. As the Commission notes: “the traditional “vital signs” of heartbeat and respiration were merely surrogate signs with no significance in themselves.24 On this view, the heart and lungs are not important as basic prerequisites to continued life but rather because the irreversible cessation of their functions shows that the brain had ceased functioning.”25 Insofar as the traditional criteria indicated the change that really mattered, they were helpful in determining death. With the further development of technology, these criteria have become more imperfect as measures of death. For instance, with the use of respirators and heart-lung machines, the traditional cardiopulmonary criterion is insufficient on its own as a definition of death, as heat and lung functions can now be performed artificially. As I will argue, the total brain criterion represents an advance over the old criteria in the sense that the brain is what matters in death. However, as we shall see, this does not definitively settle the question regarding death. For instance, some states have taken an individualized approach to defining death, while keeping the UDDA as the baseline standard.26 New Jersey has a Declaration of Death Act which provides a statutory exemption which allows religious individuals and families to halt official declaration of death under the brain death criterion.27 The exemption states that: The death of an individual shall not be declared upon the basis of neurological criteria … when the licensed physician authorized to declare death, has reason to believe, on the basis of information in the individual's available medical records, or information provided by a member of the individual's family or any other person knowledgeable about the individual's personal religious beliefs that such a declaration would violate the personal religious beliefs of the individual. In these cases, death shall be declared, and the time of death fixed, solely upon the basis of cardio-respiratory criteria …28 This exemption has earned New Jersey the dubious appellation of being the ‘best place for brain-dead patients’.29 While the state has retained the brain death standard, through this statute certain families are allowed to in effect change the legal definition of death in particular case to match the more traditional criteria. This has led to cases such as that of Jahi McMath, a 13 year old who was kept on a respirator in New Jersey despite brain death and a death certificate in California.30 Jahi's father has also filed a medical malpractice suit, which alleges that Jahi is still alive even by California's standards, as Jahi retains hypothalamic function.31 This shows one of the flaws of the total brain standard, which requires the death of every part of the brain, regardless of the importance of any particular part. By allowing for religious exemptions, New Jersey has created a situation in which ‘At least in New Jersey there can be living people with dead brains’.32 Doing so confuses discussions about death that we should strive to make clear, and pokes holes in a definition that is most helpful when it is uniform.33 More importantly, however, the New Jersey Declaration of Death Act provides an excellent illustration of what kind of issues are involved when we define death. The idea that what constitutes death can change with jurisdiction points to the role that individuals and institutions have in forming the notion of death. As I will discuss later in this paper, death is a value-laden concept, one which we form both explicitly and implicitly. Instead of looking at the death of the total brain, some standards look only to certain parts of the brain. Of this type of standard, I will focus on a common version which identifies cerebral death as the death of a person.34 This version of the standard holds that key functions of the brain such as memory, consciousness, and personality are what make us a person, and since those functions originate in the cerebral hemispheres, it is the death of those portions of the brain that count as death of the person.35 Robert Veatch helpfully summarizes this as the view that ‘Death is the irreversible loss of that which is essentially significant to the nature of man’.36 Veatch argues for the higher brain standard in part through a comparison between human death and the death of plants or non-human animals.37 As he argues: When we say that an amoeba has died, we mean that cellular respiration has ceased, or mobility of the cellular protoplasm has ceased, and nothing more. When we speak of human death, however, we mean something radically different. We are making a practical statement with policy implications. We are saying that it is now appropriate to behave toward the individual in a different way.38 Human death is described as being different from the death of other life forms, in part because of the different types of functioning that persons have and in part because of certain duties and customs we (at least in the West) have toward other persons. Jeff McMahan further elucidates the higher brain standard for death; he summarizes the view by saying that ‘each of us is essentially a mind’.39 As support for this view, he utilizes a distinction between the human self and the human organism.40 The self is the person whom we are concerned with—who they are and whatever attributes make them a person. The organism is the physical body, the ‘housing’ of the person and what is left behind after a person dies. As McMahan says: ‘only the organism has biological life and only the self has a biography’.41 In a person the self is the mind, which in some way will be his brain. The organism is the body, which is not essential to who a person is. For McMahan, we are connected to, but not identical with, our organisms/bodies.42 For the higher brain theorists what matters is the death of a particular part of the brain, namely the death of the cerebral hemispheres, as those areas are what constitute the key parts of what make us into selves—our memories, consciousness, beliefs, desires, and overall psychology. The death of the total brain is sufficient for brain death, but under this standard, not necessary. The death of certain key parts of the brain is what matters. The higher brain standard of death identifies key aspects of what makes us persons, and then identifies the death of the source of those aspects as the death of the person. The higher brain account thus functions by identifying our personal identity with the cerebral hemispheres in some way. This is essentially an application of the identity theory of mind. The identity theory of mind holds that ‘states and processes of the mind are identical to states and processes of the brain’.43 If ‘each of us is essentially a mind’,44 and our minds are identical with our brains, then the death of the brain will be the death of the mind and by consequence also the death of the person. This will be true for the total brain standard when the entire brain is dead. For the higher brain standard, the death of the cerebral hemispheres will be sufficient for the death of the person, as those are the parts of the brain which constitute the mind. One of the fundamental problems with the identity theory of mind and thus with both the total brain and the higher brain standards is that the mind is not necessarily identical with the brain. The mind can be instantiated in more than one way.45 This means that the mind and its operations can be produced in many ways, not just by the human brain. As an of a particular because it is not produced only by the brain state in but also by brain states in and in In the the mind is not produced only by our brains, but also in the of and in It is this in particular that a fundamental with identity such as the total or higher brain conceptions of death. To see why this is the we must with a conception of mind. A version of this would be to as that has a physical and is with the this is the we may to see the brain in ways that could in a different way. The aspects of the mind that we care memory, consciousness, and so thus in some way to particular operations of the brain, operations which can be performed in other This could in the by our minds in a way that would our to even if our brain dies. The idea would be that our would be because our minds are in some way our and our through physical processes which can be the to memories, between memories, and even and the that make us be through and without This to theory of mind that makes something a any other type of not on its but solely on its The theory of mind at the entire mind in this mind as a has certain functions and these functions are what rather than the particular means by which those functions are the mind is because it can be instantiated without a brain. The brain, is not what what matters are certain functions the brain In the of cases, traditional cardiopulmonary standards for death will be as the Commission in its Death brain-based standard is after merely to the standard, which will continue to be in the of cases in the it will be in the cases that a brain-based standard necessary. Such cases will when medical technology a gap between the body and death. In these cases, the total brain standard serves a more precise definition of death given our currently concepts of death and what we value in persons. Further precision would be if we were to one to the higher brain criterion As we have this is because we do not value all parts of the brain, and thus total brain death is not necessary for death of the person, only The higher brain standard will more mirror what we care as it the portions of the brain which memories, consciousness, and all of which constitute what we ultimately care about in persons. The personal identity standards even to what we care and to those standards would us as as to criteria for death. However, there are practical problems with the criteria we the total brain There are problems with the higher brain the personal identity criteria. The Commission this in its report and to its to adopt the total brain standard on problems with the higher brain brain standards problems given currently medical and brain standards also these in the President's on went so as to for a ‘total brain as to the total brain death standard, in part for However, given the current medical technology it that neurological criteria the most pragmatic set of standards for what constitutes death. As has neurological criteria currently policy as they functions of the organism as a identity would be even more to test and would in any case value regarding what matters in a person so that we would what to look for in the However, these and other practical problems in determining higher brain death do not us from defining death. In virtually every case death may be determined by what I shall the criteria of total brain, and higher brain criteria. In cases, cardiopulmonary criteria In cases, total brain death would be but higher brain death would be necessary. This is as has been all cases of total brain death will be cases of higher brain death. higher brain death more in on what parts of the brain what we value in our memories, consciousness, beliefs, desires, and overall psychology. for our current purposes and given the current state of technology, the precise of total brain, and higher brain death suffice for in cases such as proposed the criteria suffice to determine what as death. The idea of these as of not is to a on to the body of a is brain In such a the death of the brain in some way is what as the death of the person. This also some of the as to such operations would be or If the brain is in some way what matters, then what matters in such a is the not the would thus be more as the body would be part such as a or While the death criteria currently they will not permanently be sufficient for determining death. that our concepts and practices relating to death are with what we value in persons, as our values change so will we to death. For instance, in a become more will be similar as In such a it is that we may to value the personality of persons more. to in new and ways may be and to have a more important place in we think of We may that this of persons is a of many and may for that reason be or to artificially. It is that in such a persons may be of as the only persons and the gap between biological death and the death of persons will become Such a change in our values could also affect our of the of persons who have as we may that personality still through even when If or when such in our values and practices our conceptions of personal identity may thus as There are over organ As it only are made year from despite a of It is that an of people in the to a of that they need in to One of the in the way of the of is the which doctors from for in a way which This requires death for organ and thus our conception of what constitutes death will be the current death standard, a patient must be brain dead in to that they would not be to However, if we were to use a criterion for death, more would be available for given the standard of what constitutes our definitions of death make the between life and death for patients in need of While the need for does not the of the matters as to what we value in persons or what constitutes death, our legal and social institutions must the need for into account in social medical technology new problems for our old standards of what constitutes death. Our values inevitably what we think of as the death of a person, and death is not merely a concept, but The of death us to questions of persons and in a way which will us to address It is that we examine the in our concepts and practices relating to death, and on what it is that we value or should value in persons. The neurological criteria for death a advance in our ways of to in death and However, as medical technology and life we must also develop precise of what aspects of our neurological are the most While the current total brain death standard currently in the of cases, the standard does not fully with what we value in persons. we the current brain death standard despite its mismatch with our values and despite in determining death and in organ advances as if they will inevitably make this question