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)

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)

Much of the debate over the definition and criteria for determining our death has focused on disagreement over the correct biological account of death, i.e., what it means for any organism to die. In this paper, we argue that this exclusive focus on the biology of death is misguided, because it ignores ethical and social factors that bear on the acceptability of criteria for determining our death. We propose that attention shift from strictly biological considerations to ethical and social considerations (...) that bear on the determination of what we call “civil death.” We argue for acceptance of a neurological criterion for determining death on grounds that it is the most reasonable way to synthesize biological, ethical, and social considerations about our death.. (shrink)

Since the 1960s, organ procurement policies have relied on the boundary of death—advertised as though it were a factual, value‐free, and unobjectionable event—to foster organ donation while minimizing controversy. Death determination, however, involves both discoveries of facts and events and decisions about their meaning (whether the facts and events are relevant to establish a vital status), the latter being subjected to legitimate disagreements requiring deliberation. By revisiting the historical origin of the dead donor rule, including some events that took place (...) in France prior to the report by the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death, I want to recall that those who first promoted the DDR did not take into account any scientific rationale to support the new proposed criteria to determine death. Rather, through a process of factual re‐semantization, they authorized themselves to decide about the meaning of death in order to implicitly prioritize the interests of organ recipients over those of dying people. (shrink)

Singer claims that there are two ways of challenging the fact that brain-dead patients, from whom organs are usually retrieved, are in fact biologically alive. By means of the first, the so called dead donor rule may be abandoned, opening the way to lethal organ donation. In the second, it might be posited that terms such as “life” and “death” do not have any primary biological meaning and are applicable to persons instead of organisms. This second possibility permits one to (...) acknowledge that brain-dead patients are deceased because they are irreversibly unconscious. In the commentary which follows, I will argue that Singer’s second option is preferable since it provides a higher amount of organs available for transplant, and is better suited to the meaning of “death” which occurs in ordinary language. I will also defend such a concept of death against the objections raised by Michael Nair-Collins in the article Can the brain-dead be harmed or wronged? On the moral status of brain death and its implications for organ transplantation. (shrink)

The paper presents different approaches to the relationship of life and death among selected authors as a review of their articles within the last volume of the Ethics & Bioethics (in Central Europe) journal. The resource of the review is an article by Peter Singer The challenge of brain death for the sanctity of life ethics. Firstly, I try to analyze the issue when death occurs and when we can talk about death as a phenomenon that each and every living (...) human being must come to terms within the course of their lives. Ethics of social consequences is used to analyze different approaches and states a conclusion defending the principles of humanity and human dignity within the scope of this ethical theory applied to various problem cases. I strive to support the question of the quality of life through the paternalistic approach of physicians influenced by their humane and dignified understanding of their relationship towards the patients. Ethics of social consequences offers many solutions to the discussed issues throughout the reviewed articles. (shrink)