A “universalist” policy on brain death holds that brain death is death, and neurologic criteria for death determination are rightly applied to all, without exemptions or opt outs. This essay argues that advocates of a universalist brain death policy defend the same sort of coercive control of end-of-life decision-making as “pro-life” advocates seek to achieve for reproductive decision-making, and both are grounded in an illiberal political philosophy. Those who recognize the serious flaws of this kind of public policy with respect (...) to abortion must apply the same logic to brain death. (shrink)

There are currently two legally established criteria for death: the irreversible cessation of circulation and respiration and the irreversible cessation of neurologic function. Recently, there have been technological developments that could undermine the irreversibility requirement. In this paper, I focus both on whether death should be identified as an irreversible state and on the proper scope of irreversibility in the biological definition of death. In this paper, I tackle the distinction between the commonsense definition of death and the biological definition (...) of death to show that even the commonsense concept of death is specified by biological facts. Resting on this argument, I argue that any definition of death is a posteriori. Thus, irreversibility is part of any definition of death because the actual phenomenon of death is irreversible. In addition, I show that the proper domain of irreversibility in a definition of death is circumscribed by physical possibilities and that irreversibility in the definition of death refers to current possibilities for the reversal of relevant biological processes. I conclude that, despite recent technological advancements, death is still irreversible. (shrink)

Brain death has been accepted worldwide medically and legally as the biological state of death of the organism. Nevertheless, the literature has described persistent problems with this acceptance ever since brain death was described. Many of these problems are not widely known or properly understood by much of the medical community. Here we aim to clarify these issues, based on the two intractable problems in the brain death debates. First, the metaphysical problem: there is no reason that withstands critical scrutiny (...) to believe that BD is the state of biological death of the human organism. Second, the epistemic problem: there is no way currently to diagnose the state of BD, the irreversible loss of all brain functions, using clinical tests and ancillary tests, given potential confounders to testing. We discuss these problems and their main objections and conclude that these problems are intractable in that there has been no acceptable solution offered other than bare assertions of an ‘operational definition’ of death. We present possible ways to move forward that accept both the metaphysical problem - that BD is not biological death of the human organism - and the epistemic problem - that as currently diagnosed, BD is a devastating neurological state where recovery of sentience is very unlikely, but not a confirmed state of irreversible loss of all [critical] brain functions. We argue that the best solution is to abandon the dead donor rule, thus allowing vital organ donation from patients currently diagnosed as BD, assuming appropriate changes are made to the consent process and to laws about killing. (shrink)

Definitions of death are often referred to as legal fictions since brain death was conceived in the mid-twentieth century. Reference to legal fiction is generally paired with bioethicists’ concern that it facilitates post-mortem tissue donation and the health system generally, by determining death earlier on the continuum of dying and availing more viable tissue and therapeutic resources for others. The author argues that spatio-legal theory, drawing from legal geography, can account for the heterogeneity of effects that the fiction has in (...) spatially managing bodies (e.g., physicians, patient, family) at the bedside. The legal fiction is produced in physicians’ socio-legal practices, coordinating decision-making according to geographies of scarcity and severable, self-contained live- and dead-bodies. The determination liminally exists between private and public, enacting a sterile, affectless ordering of bodies but administered in the spectacle of sovereign death-making, conveying authority whilst managing patient’s and family’s consents. Spatialising traces of anatamo-politics and biopolitics thereby congeal and are enacted heterogeneously in and through the legal form of the fiction, securing preferred constructions of the body in the management of mortality. These spatio-legal features of the legal fiction are described from their collision with case law and literature that document competing nomoi produced from or secreted by antinomian bodies. (shrink)

The basic question concerning the compatibility of donation after circulatory death (DCD) protocols with the dead donor rule is whether such protocols can guarantee that the loss of relevant biological functions is truly irreversible. Which functions are the relevant ones? I argue that the answer to this question can be derived neither from a proper understanding of the meaning of the term “death” nor from a proper understanding of the nature of death as a biological phenomenon. The concept of death (...) can be made fully determinate only by stipulation. I propose to focus on the irreversible loss of the capacity for consciousness and the capacity for spontaneous breathing. Having accepted that proposal, the meaning of “irreversibility” need not be twisted in order to claim that DCD protocols can guarantee that the loss of these functions is irreversible. And this guarantee does not mean that reversing that loss is either conceptually impossible or known to be impossible with absolute certainty. (shrink)

The basic question concerning the compatibility of donation after circulatory death protocols with the dead donor rule is whether such protocols can guarantee that the loss of relevant biological functions is truly irreversible. Which functions are the relevant ones? I argue that the answer to this question can be derived neither from a proper understanding of the meaning of the term “death” nor from a proper understanding of the nature of death as a biological phenomenon. The concept of death can (...) be made fully determinate only by stipulation. I propose to focus on the irreversible loss of the capacity for consciousness and the capacity for spontaneous breathing. Having accepted that proposal, the meaning of “irreversibility” need not be twisted in order to claim that DCD protocols can guarantee that the loss of these functions is irreversible. And this guarantee does not mean that reversing that loss is either conceptually impossible or known to be impossible with absolute certainty. (shrink)

In most, if not all, jurisdictions with active organ transplantation programs, there is a persistent desire to increase donation rates because the demand for transplantable organs exceeds the supply. China, in particular, faces an extraordinary gap between the number of organs donated by deceased donors and the number of people seeking one or more transplants. China might look to Western countries with higher donation rates to determine how best to introduce Western practices into the Chinese system. In attempting to increase (...) its organ donation rate, China must not only ensure that its organ donation system reflects different Chinese cultural values, but also that it avoids the ethical problems of the United States and of other Western systems. This article examines four such problems. They concern the family, obtaining permission for organ donation, the definition and diagnosis of “brain death,” and trust. Revisions to the Chinese system should involve a careful look to China and Chinese cultural resources rather than to Western models. (shrink)

John P. Lizza has long been a major figure in the scholarly literature on criteria for death. His searching and penetrating critiques of the dominant biological paradigm, and his defense of a theory of death of the person as a psychophysical entity, have both significantly advanced the literature. In this special issue, Lizza reinforces his critiques of a strictly biological approach. In my commentary, I take up Lizza’s challenge regarding a biological concept of death. He is certainly right to point (...) out that science is not value-free; however, this does not imply that there cannot be a characterization of biological death that can be shown to be superior to other concepts. After characterizing and justifying such a theory of biological death, I show that patients who meet the diagnostic criteria for brain death are unequivocally biologically alive. However, with respect to concepts of personhood and related ideas, I urge the acceptance of a pluralism of such concepts for matters of public policy. (shrink)

The concept of death and its relationship to organ transplantation continue to be sources of debate and confusion among academics, clinicians, and the public. Recently, an international group of scholars and clinicians, in collaboration with the World Health Organization, met in the first phase of an effort to develop international guidelines for determination of death. The goal of this first phase was to focus on the biology of death and the dying process while bracketing legal, ethical, cultural, and religious perspectives. (...) The next phase of the project will include a broader group of stakeholders in the development of clinical practice guidelines and will use expert consensus on biomedical criteria for death from the first phase as scientific input into normative deliberation about appropriate policies and practices. Surely, science alone cannot resolve the normative and philosophical questions intertwined in debates about moral status, legal and moral rights, the ethics of killing, and personhood and the nature of the self; however, scientific input is necessary for informed moral deliberation. An objective and unbiased investigation of the biology of death is independent of, and should be undertaken prior to, an analysis of the normative questions engendered by debate about determination of death. This strategy is explicitly endorsed by the International Guidelines for Determination of Death and reflects the prevailing view of these issues in the mainstream medical literature. However, this mainstream literature, exemplified by the IGDD group's recent report, does not exhibit any of the characteristics usually associated with a scientifically rigorous investigation, such as making empirically testable and falsifiable claims, a commitment to evidence and logic over authoritative assertion, or a willingness to revise hypotheses and theories in light of new evidence. Indeed, the core claims and methodologies of the mainstream medical literature on death, both of which are represented by the IGDD report, are not merely scientifically unjustified; they are not science at all. This situation creates a problem for the integrity of science and the academy, and it unjustly obscures and prevents legitimate democratic and moral deliberation about issues that, at bottom, are normative, not scientific. (shrink)

Brain dead organ donors are the principal source of transplantable organs. However, it is controversial whether brain death is the same as biological death. Therefore, it is unclear whether organ removal in brain death is consistent with the ‘dead donor rule’, which states that organ removal must not cause death. Our aim was to evaluate the public9s opinion about organ removal if explicitly described as causing the death of a donor in irreversible apneic coma. We conducted a cross-sectional internet survey (...) of the American public (n=1096). Questionnaire domains included opinions about a hypothetical scenario of organ removal described as causing the death of a patient in irreversible coma, and items measuring willingness to donate organs after death. Some 71% of the sample agreed that it should be legal for patients to donate organs in the scenario described and 67% agreed that they would want to donate organs in a similar situation. Of the 85% of the sample who agreed that they were willing to donate organs after death, 76% agreed that they would donate in the scenario of irreversible coma with organ removal causing death. There appears to be public support for organ donation in a scenario explicitly described as violating the dead donor rule. Further, most but not all people who would agree to donate when organ removal is described as occurring after death would also agree to donate when organ removal is described as causing death in irreversible coma. (shrink)

I argue that valid informed consent is ethically required for organ donation from individuals declared dead using neurological criteria. Current policies in the U.S. do not require this and, not surprisingly, current practices inhibit the possibility of informed consent. Relevant information is withheld, opportunities to ensure understanding and appreciation are extremely limited, and the ability to make and communicate a free and voluntary decision is hindered by incomplete disclosure and other practices. Current practices should be revised to facilitate valid informed (...) consent for organ donation. (shrink)

End-of-life organ donation is controversial in Islam. The controversy stems from: scientifically flawed medical criteria of death determination; invasive perimortem procedures for preserving transplantable organs; and incomplete disclosure of information to consenting donors and families. Data from a survey of Muslims residing in Western countries have shown that the interpretation of religious scriptures and advice of faith leaders were major barriers to willingness for organ donation. Transplant advocates have proposed corrective interventions: reinterpreting religious scriptures, reeducating faith leaders, and utilizing media (...) campaigns to overcome religious barriers in Muslim communities. This proposal disregards the intensifying scientific, legal, and ethical controversies in Western societies about the medical criteria of death determination in donors. It would also violate the dignity and inviolability of human life which are pertinent values incorporated in the Islamic moral code. Reinterpreting religious scriptures to serve the utilitarian objectives of a controversial end-of-life practice, perceived to be socially desirable, transgresses the Islamic moral code. It may also have deleterious practical consequences, as donors can suffer harm before death. The negative normative consequences of utilitarian secular moral reasoning reset the Islamic moral code upholding the sanctity and dignity of human life. (shrink)

Use of normothermic regional perfusion (NRP) for organ recovery in donation after circulatory death (DCD) raises two crucial, and intertwined, ethical questions. The first is whether the use of NRP...

The literature on the determination of death has often if not always assumed that the concept of human death should be defined in terms of the end of the human organism. I argue that this broadly biological conceptualization of human death cannot constitute a basis for agreement in a pluralistic society characterized by a variety of reasonable views on the nature of our existence as embodied beings. Rather, following Robert Veatch, I suggest that we must define death in moralized terms, (...) as the loss of an especially significant sort of moral standing. Departing from Veatch, however, I argue that we should not understand death in terms of the loss of all moral status whatsoever. Rather, I argue, what we should argue about, when we argue about death, is when and why people lose their rights-claims to the protection and promotion of their basic bodily functioning. (shrink)