Whole Brain Death Analysis

The Whole-Brain Concept of Death Remains Optimum Public Policy
James L. Bernat

he definition of death is one of the oldest and most enduring problems in biophilosophy and bioethics. Serious controversies over formally defining death began with the invention of the positive-pressure mechanical ventilator in the 1950s. For the first time, physicians could maintain ventilation and, hence, circulation on patients who had sustained what had been previously lethal brain damage. Prior to the development of mechanical ventilators, brain injuries severe enough to induce apnea quickly progressed to cardiac arrest from hypoxemia. Before the 1950s, the loss of spontaneous breathing and heartbeat (“vital functions”) were perfect predictors of death because
the functioning of the brain and of all other organs ceased rapidly and nearly simultaneously thereafter, producing a unitary death phenomenon. In the pretechnological era, physicians and philosophers did not have to consider whether a human being who had lost certain “vital functions” but had retained others was alive, because such cases were technically impossible. With the advent of mechanical support of ventilation, (permitting maintenance of circulation) the previous unitary determination of death became ambiguous. Now patients were encountered in whom some vital organ functions (brain) had ceased totally and irreversibly, while other vital organ functions (such as ventilation and circulation) could be maintained, albeit mechanically. Their life status was ambiguous and debatable because they had features of both dead and living patients. They resembled dead patients in that they could not move or breathe, were utterly unresponsive to any stimuli, and had lost brain stem reflex activity. But they also resembled living patients in that they had maintained heartbeat, circulation and intact visceral organ functioning. Were these unfortunate patients in fact alive or dead? In a series of scientific articles addressing this unprecedented state, several authors made the bold claim that patients who had totally and irreversibly lost brain functions were dead, despite their continued heartbeat and circulation.1 In the 1960s, they popularized the concept they called “brain death” to acknowledge this idea.2 The intuitive attractiveness of the concept of “brain death” led to its rapid acceptance by the medical and scientific community, and to legislators expeditiously drafting public laws permitting physicians to determine death on the basis of loss of brain functioning.3 Interestingly, largely by virtue of its intuitive apJames L. Bernat, M.D., is Professor of Medicine (Neurology) at Dartmouth Medical School and Director of the Clinical Ethics Program at Dartmouth-Hitchcock Medical Center. His most recent books are Ethical Issues in Neurology, 2nd ed. (Butterworth-Heinemann, 2002) and Palliative Care in Neurology (Oxford, 2004).

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peal, the academy, medical practitioners, governments, and the public accepted the validity of brain death prior to the development of a rigorous biophilosophical proof that brain dead patients were truly dead. Medical historians have emphasized utilitarian factors in this rapid acceptance, because a determination of brain death permitted the desired societal goals of cessation of medical treatment and organ procurement.4 The practice of determining human death using brain death tests has become worldwide over the past several decades. The practice is enshrined in law in all

philosophical and medical task of determining the best criterion of death, a measurable condition that shows that the definition has been fulfilled by being both necessary and sufficient for death; and (3) the medical-scientific task of determining the tests of death for physicians to employ at the patient’s bedside to demonstrate that the criterion of death has been fulfilled with no false positive and minimal false negative determinations. Most subsequent scholars have accepted this method of analysis, if not our conclusions, with two recent exceptions.12

Defining death is the conceptual task of making explicit our understanding of it. It poses an essential question: what does it mean for an organism to die, particularly in our contemporary circumstance in which technology can compensate for the failure of certain vital organs?
50 states in the United States and in approximately 80 other countries, including nearly all of the developed world and much of the undeveloped world.5 A 1995 conference on the definition of death sponsored by the Institute of Medicine concluded that, despite certain theoretical and practical shortcomings, the practice of diagnosing brain death was so successful and so well accepted by the medical profession and the public that no major public policy changes seemed desirable.6 Yet despite this consensus, from its beginning, a persistent group of critics have attacked the concept and practice of brain death as being conceptually invalid or a violation of religious beliefs.7 Recently, through the intellectual leadership of Alan Shewmon, additional critics have concluded that the concept of brain death is incoherent, anachronistic, unnecessary, a legal fiction, and should be abandoned.8 In this essay I show that, despite admitted shortcomings, the classical formulation of whole-brain death remains both conceptually coherent and forms a solid foundation for public policy surrounding human death determination and organ transplantation. Following a series of published critiques and rebuttals of our position over the past two decades, I concluded that much of the disagreement over our account of death resulted from the lack of acceptance by dissenting scholars of the “paradigm of death.” By “paradigm of death” I refer specifically to a set of conditions and assumptions that frame the discussion of the topic of death by identifying the nature of the topic, the class of phenomena to which it belongs, how it should be discussed, and its conceptual boundaries.13 Accepting a paradigm of death permits scholars to rationally analyze and discuss death without falling victim to the fallacy of category noncongruence and consequently talking past each other. But the paradigm remains useful even if scholars do not agree on all its elements, because it can help clarify the root of their disagreement. My paradigm of death comprises seven sequential elements. First, the word “death” is a common, nontechnical word that we all use correctly to refer to the cessation of a human being’s life. The philosophical task of defining death seeks not to redefine it by contriving a new meaning, but rather to divine and make explicit the implicit meaning of death that we all accept but that has been made ambiguous by technological advances. Some scholars have gone astray by not attempting to capture our consensual concept of death and instead redefining death for ideological purposes or by overanalyzing death to a metaphysical level of abstraction – thereby rendering it devoid of its ordinary meaning.14 Second, death is fundamentally a biological phenomenon. We all agree that life is a biological entity; thus also should be its cessation. Accepting that death is a biological phenomenon neither denigrates the richness journal of law, medicine & ethics

An Analysis of Death
Defining death is a formidable task.9 In their rigorous, thoughtful, and highly influential book Defining Death,10 the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research chose as their conceptual foundation the analysis of death that I published with my Dartmouth colleagues Charles Culver and Bernard Gert.11 Our analysis was conducted in three sequential phases: (1) the philosophical task of determining the definition of death by making explicit the consensual concept of death that has been confounded by technology; (2) the
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and beauty of various cultural and religious practices surrounding death and dying, nor denies societies their proper authority to govern practices and establish laws regulating the determination and time of death. But death is an immutable and objective biological fact and not fundamentally a social contrivance.15 For the definition and criterion of death, the paradigm thus exclusively considers the ontology of death and ignores its normative aspects. Third, we restrict our analysis to the death of higher vertebrate species for which death is univocal. That is, we mean the same phenomenon of “death” when we say our cousin died as we do when we say our dog died. Although individual cells within organisms and single celled organisms also die, our analysis of defining human death is simplified by restricting our purview to the death of related higher vertebrate species. Determining the death of cells, organs, protozoa, or bacteria are valid biophilosophical tasks but are not the task at hand here. Fourth, the term “death” can be applied directly and categorically only to organisms. All living organisms must die and only living organisms can die. Our use of language may seem to confuse this point, for example, when we say “a person died.” But by this usage we are referring directly to the death of the living organism that embodied the person, not to a living organism ceasing to be a person. Personhood is a psychosocial construct that can be lost but cannot die, except metaphorically. Similarly, other uses of the term “death” such as “the death of a culture” clearly are metaphorical and fall outside the paradigm.16 Fifth, a higher vertebrate organism can reside in only one of two states, alive or dead: no organism can be in both states or in neither. Based on the theory of fuzzy sets, the concept that the world does not easily divide itself into sets and their complements, Amir Halevy and Baruch Brody proposed that an organism may reside in a transitional state between alive and dead that shares features of both states.17 This claim appears plausible when considering cases of gradual, protracted dying, in which it may be difficult and even appear arbitrary to identify the precise moment of death. But this claim ignores the important distinction between our ability to identify an organism’s biological state and the nature of that state. Simply because we currently lack the technical ability to always accurately identify an organism’s state does not necessitate postulating an in-between state. Using the terminology of fuzzy set theory as a guide, the paradigm requires us to view alive and dead as mutually exclusive (non-overlapping) and jointly exhaustive (no other) sets. Sixth, and inevitably following from the preceding premise, death must be an event and not a process.

If there are only two exclusive underlying states of an organism, the transition from one state to the other, at least in theory, must be sudden and instantaneous, because of the absence of an intervening state. Disagreement on this point, highlighted since the original debate over 30 years ago in Science by Robert Morison and Leon Kass,18 centers on the difference between our ability to accurately measure the presence of a biological state and the nature of that biological state. To an observer, it may appear that death is an ineluctable process within which it is arbitrary to stipulate the moment of death, but such an observation simply underscores our current technical limitations. For technical reasons, the event of death may be determinable with confidence only in retrospect. As my colleagues and I first observed in 1981, death is best conceptualized not as a process but as the event separating the biological processes of dying and bodily disintegration.19 Seventh and finally, death is irreversible. By its nature, if the event of death were reversible it would not be death but rather part of the process of dying that was interrupted and reversed. Advances in technology permit physicians to interrupt the dying process in some cases and postpone the event of death. So-called “near-death experiences,” reported by some critically ill patients who subsequently recovered, do not indicate returning from the dead but are rather recalled experiences that result from alterations in brain physiology during incipient dying that was reversed in a timely manner.20

The Definition of Death
Given the set of assumptions and conditions comprising the paradigm of death, we can now explore the definition, criterion, and tests of death. Defining death is the conceptual task of making explicit our understanding of it. It poses an essential question: what does it mean for an organism to die, particularly in our contemporary circumstance in which technology can compensate for the failure of certain vital organs? We all agree that by “death” we do not require the cessation of functioning of every cell in the body, because some integument cells that require little oxygen or blood flow continue to function temporarily after death is customarily declared. We also do not simply mean the cessation of heartbeat and respiration, though this circumstance will lead to death if untreated. Although some religious believers assert that the soul departs the body at the moment of death, this is not an adequate definition of death because it is not what religious believers fundamentally mean by “death.” Beginning early in the brain-death debate, Robert Veatch advocated a position that became known as the “higher-brain formulation of death.”21 He claimed
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that death should be defined formally as “the irreversible loss of that which is considered to be essentially significant to the nature of man.” He expressly rejected the idea that death should be related to an organism’s “loss of the capacity to integrate bodily function” asserting that “man is, after all, something more than a sophisticated computer.”22 His project attempted not to reject brain death, but to refine the intuitive thinking underlying the brain death concept by emphasizing that it was the cerebral cortex that counted in a brain death concept and not the more primitive integrating brain structures. Irrespective of the attractiveness of this idea, (it has spawned a loyal following23) the higher-brain formulation contains a fatal flaw as a candidate for a definition of death: it is not what we mean when we say “death.” Its logical criterion of death would be the irreversible loss of consciousness and cognition, such as that which occurs in patients in an irreversible persistent vegetative state (PVS). Thus a higher-brain formulation of death would count PVS patients as dead. However, despite their profound and tragic disability, all societies, cultures, and laws consider PVS patients as alive. Thus, despite its potential merits, the higher-brain formulation fails the first condition of the paradigm: to make explicit our underlying consensual concept of death and not to contrive a new definition of death. In 1981, my colleagues and I strove to capture the essence of the concept of human death that formed the intuitive foundation of the brain-based criterion of death. We defined death as “the cessation of functioning of the organism as a whole.”24 This definition utilized a biological concept proposed by Jacques Loeb in 1916.25 Loeb explained that organisms are not simply composites of cells, tissues, and organs, but possess overarching functions that regulate and integrate all systems to maintain the unity and interrelatedness of the organism to promote its optimal functioning and health. The organism as a whole comprises that set of functions that are greater than the mere sum of the organism’s parts. More recently, biophilosophers have advanced the concept of “emergent functions” to explain this type of phenomenon with greater conceptual clarity.26 An emergent function is a property of a whole that is not possessed by any of its component parts, and that cannot be reduced to one or more of its component parts. The physiological correlate of the organism as a whole is the set of emergent functions of the organism. The irretrievable loss of the organism’s emergent functions produces loss of the critical functioning of the organism as a whole and therefore is the death of the organism.

In early writings on brain death, a few scholars proposed similar ideas. Most noteworthy was Julius Korein who asserted that the brain was the “critical system” of the organism whose loss indicated the organism’s death.27 Using thermodynamics theory, Korein argued that once the critical system was irretrievably lost (death), an irreversible and unstoppable process ensued of increasing entropy that constituted the process of bodily disintegration. The concept of the demise of the organism’s critical system relies on concepts analogous to the cessation of functions of the organism as a whole. Examples of critical functions of the organism as a whole include: (1) consciousness, which is necessary for the organism to respond to requirements for hydration and nutrition; (2) control of circulation, respiration, and temperature control, which are necessary for all cellular metabolism; and (3) integrating and control systems involving chemoreceptors, baroreceptors, and neuroendocrine feedback loops to maintain homeostasis. Death is the irreversible and permanent loss of the critical functions of the organism as a whole.

The Criterion of Death
The next task is to identify the criterion of death, the general measurable condition that satisfies the definition of death by being both necessary and sufficient for death. There are several plausible candidates for a criterion of death. Among brain death advocates, three separate criteria have been proposed: (1) the wholebrain formulation, the criterion recommended by the Harvard Committee and the President’s Commission, and accepted throughout the United States and in most parts of the world; (2) the higher-brain formulation, popular in the academy but accepted in no jurisdictions anywhere; and (3) the brain stem formulation accepted in the United Kingdom.28 The whole-brain criterion requires cessation of all brain clinical functions including those of the cerebral hemispheres, diencephalon (thalamus and hypothalamus), and brain stem. Whole-brain theorists require widespread cessation of neuronal functions because each part of the brain serves the critical functions of the organism as a whole. The brain stem initiates and controls breathing, regulates circulation, and serves as the generator of conscious awareness through the ascending reticular activating system. The diencephalon provides the center for bodily homeostasis, regulating and coordinating numerous neuroendocrine control systems such as those regulating body temperature, salt and water regulation, feeding behavior, and memory. The cerebral hemispheres have an indispensable role in awareness that provides the conditions for all

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reticular activating system), have continued control conscious behavior that serves the health and survival of respiration and circulation by the intact medulla, of the organism. and retain other brain stem mediated regulatory funcClinical functions are those that are measurable at the bedside. The distinction between the brain’s clinitions.34 The higher-brain formulation, thus, serves as cal functions and brain activities, recordable electrineither an adequate definition nor criterion of death. cally or though other laboratory means, was made by The criterion of the brain stem formulation is the the President’s Commission in Defining Death though, loss of consciousness and the capacity for breathing.35 for the sake of brevity, it did not appear in the Uniform Diffuse damage to the brain stem that is sufficient to Determination of Death Act proposed by the Commisdestroy the ascending reticular activating system and sion.29 All clinical brain functions measurable at the the medullary breathing center satisfies this criterion. bedside must be lost and the absence must be shown to But the brain stem formulation does not require combe irreversible. But the whole-brain criterion does not mensurate damage to the diencephalon or cerebral require the loss of all neuronal activities. Some neurons hemispheres. It therefore leaves open the possibility of may survive and contribute to recordable brain activimisdiagnosis of death because of a pathological process ties (by an electroencephalogram, for example) but not that appears to destroy brain stem activities but that to clinical functions.30 The precise number, location, permits some form of residual conscious awareness and configuration of the minimum number of critical that cannot be easily detected. It thus lacks the fail-safe neuron arrays remain unknown. Despite the fact that the whole-brain The higher-brain formulation fails to provide criterion does not require the cessation of an adequate criterion of death because its functioning of every brain neuron, it does rely on a pathophysiological process known conditions are insufficient for the loss of the as brain herniation to assure widespread critical functions of the organism as a whole. destruction of the neuron systems responsible for the brain’s clinical functions.31 When the brain is injured diffusely by trauma, hypoxicfeature of whole-brain death to test for and guarantee ischemic damage during cardiorespiratory arrest or asthe irreversible loss of these critical systems. phyxia, meningoencephalitis, or enlarging intracranial As a criterion of death, the circulation formulation mass lesions such as neoplasms,32 brain edema causes fails for precisely the opposite reason of the higherintracranial pressure to rise to levels exceeding mean brain and brain stem formulations. Whereas the higher-brain and brain stem criteria both fail because arterial blood pressure. At this point, intracranial cirthey are necessary but not sufficient for death, the circulation ceases and nearly all brain neurons that were not destroyed by the initial brain injury are secondarily culation criterion fails because it is sufficient but not destroyed by lack of intracranial circulation. Thus the necessary for death. The loss of all systemic circulation whole-brain formulation provides a fail-safe mechaproduces the destruction of all bodily organs and tisnism to eliminate false-positive brain death determisues so it is clearly a sufficient condition for death. But nations and assure the loss of the critical functions of it is unnecessary to require the cessation of functions the organism as a whole. Showing the absence of all inof organs that do not serve the critical functions of the tracranial circulation is sufficient to prove widespread organism as a whole.36 destruction of all critical neuronal systems. Similarly, it satisfies Korein’s requirement for the loss of the irThe Tests of Death replaceable critical system of the organism. Brain death tests must be used to determine death only The higher-brain formulation fails to provide an adin the unusual case in which a patient’s ventilation is equate criterion of death because its conditions are being supported. If positive-pressure ventilation is neiinsufficient for the loss of the critical functions of the ther employed nor entertained, the traditional tests of organism as a whole. Its criterion is the irreversible death – prolonged absence of breathing and heartbeat loss of consciousness and cognition. The most com– can be used successfully. These traditional tests are mon clinical manifestation of this condition is the PVS, absolutely predictive that the brain will be rapidly decaused by diffuse damage to the cerebral hemispheres, stroyed by lack of blood flow and oxygen, at which time thalami, or disconnections between those structures.33 death will have occurred. Traditional examinations for In most cases of PVS, brain stem neurons and their death, in addition to testing for heartbeat and breathfunctions remain intact, so PVS patients, although ing, always included tests for responsiveness and pupilunaware, have retained wakefulness and sleep-wake lary reflexes that directly measure brain function. cycles (through the function of the intact ascending defining the beginning and the end of human life • spring 2006 39

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The bedside tests satisfying the whole-brain criterion of death have been designed with a sufficiently high degree of concordance to permit the drafting of widely accepted clinical practice guidelines on the determination of brain death.37 The tests require demonstrating the loss of all clinical brain functions, irreversibility, and a known structural process sufficient to produce the clinical findings. Laboratory tests showing the absence of intracranial blood flow or the absence of electrical activity in the hemispheres and brain stem can be used to confirm the clinical diagnosis to expedite the determination.38 Irreversibility is an indispensable requirement for brain death. There is general belief that irreversibility can be adequately demonstrated by conducting serial neurological examinations, excluding potentially reversible factors, and demonstrating a structural cause that is sufficient to account for the clinical signs. But, while highly plausible, these conditions have never been proved to assure irreversibility. Two recent factors prompted me to reassess my previous position that irreversibility could be proved solely by clinical factors and to suggest that a laboratory test showing cessation of all intracranial blood flow should become mandatory in brain death determination. There are several published studies documenting the alarming frequency of physician variations and errors in performing brain death tests,39 despite clear guidelines for performing and recording the tests. Patients with “chronic brain death” have been reported who were diagnosed as brain dead but whose circulation and visceral organ functioning were successfully physiologically maintained for months or longer.40 Eelco Wijdicks and I questioned whether all of the reported patients were correctly diagnosed, and if some braindamaged but not brain dead patients were included because of inadequate examinations and resultant incorrect brain death determinations.41 Reacting to both these findings, I proposed that the mere assertion of irreversibility may no longer be sufficient to diagnose brain death and that a test showing cessation of all intracranial blood flow, such as transcranial Doppler ultrasonography, radionuclide angiography, or computed tomographic angiography, should become mandatory, at least if there is any question about the diagnosis or if the examiner is inexperienced.42

Public Policy on Death
Brain death is widely regarded as the prime example of a formerly contentious bioethical and biophilosophical issue that has been resolved to the point of widespread public consensus.43 Evidence for this consensus is the enactment of effective and well-accepted brain death laws and policies throughout the world.44 In the United
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States, the Uniform Determination of Death Act, recommended by the President’s Commission and the National Conference of Commissioners on Uniform State Laws,45 has been enacted in most states, and others have enacted statutes with similar language. Contemporaneously, the Law Reform Commission of Canada produced a similar statute.46 But an observer unaware of this consensus and public acceptance, who relied solely on reading the output of scholarly articles and university conferences on brain death, would reach a far different conclusion. The publication of anti-brain death articles has never been greater than during the past decade. Yet, despite those arguments, the 1995 Institute of Medicine conference on brain death recommended no changes in public laws in the United States,47 no jurisdiction has abandoned its brain death statute, and there is evidence that many additional countries have embraced the practice of determining brain death during the past decade of scholarly dissention.48 What accounts for the mismatch between public acceptance and scholarly agitation? Higher-brain proponents continue to accept brain death but argue that the criterion of death should be changed to the higher-brain formulation. Brain stem death proponents also accept the conceptual validity of brain death but hold that the criterion of death should be the brain stem formulation. Religious authorities continue a debate that has raged for 40 years about whether brain death is compatible with the doctrines of the world’s principal religious traditions.49 Protestantism, including fundamentalism, has accepted brain death.50 The debate in Roman Catholicism was largely settled by Pope John Paul’s 2000 pronouncement embracing brain death as consistent with Catholic teachings.51 In Judaism, brain death is accepted by Reform and Conservative authorities, but an Orthodox rabbinic debate continues between those who declare brain death compatible with Jewish law and those who do not.52 Brain death determination is also practiced in several Islamic societies,53 Hindi societies,54 and in Confucian-Shinto Japan.55 The principal active opponents within the academy are those who reject the concept of brain death outright and promote the concept that a human being is not dead until the systemic circulation ceases and all organs are destroyed. The circulation proponents see no special role for brain functions in a determination of death. Alan Shewmon, the intellectual leader of the circulationists, has written eloquently on the conceptual problems inherent within the whole-brain (or any brain criterion) formulation.56 He cites evidence that the brain performs no qualitatively different forms of integration than the spinal cord and argues that therefore it should enjoy no special status above other journal of law, medicine & ethics

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organs in death determination.
He claims further that his cases of “chronic brain death” show that the concept of brain death is inherently counterintuitive, for how could a dead body gestate infants or grow?57 Another critic, Robert Taylor, has called the brain death concept a “legal fiction” that is accepted by society in a manner analogous to the concept of legal blindness. Taylor explains that legal blindness is a concept invented by society to permit people who are functionally blind from severe visual impairment to receive the same social benefits as those enjoyed by people who are totally blind. We all know that most people who are declared legally blind are not truly blind. But we employ a legal fiction and use the term “blindness” in a biologically incorrect way for its socially beneficial purpose. Taylor argues that, by analogy, we know that people we declare “brain dead” are not truly dead, but we consider them dead for the socially beneficial goal of organ procurement.58 As a longstanding proponent of whole-brain death, I acknowledge that the whole-brain formulation, although coherent, is imperfect, and that my attempts to defend it have not adequately addressed all valid criticisms. But my inadequacies must be viewed within the larger context of the relationship of biology to public policy. Our attempts to conceptualize, understand, and define the complex and subtle natural concepts of life and death remain far from perfect. Perhaps we will never be able to achieve uniform definitions of life and death that everyone accepts and that no one criticizes for conceptual or practical shortcomings. In the real world of public policy on biological issues, we must frequently make compromises or approximations to achieve acceptable practices and laws. For these compromises to be tolerable, generally they should be minor and not affect outcomes. For example, in the current practice of organ donation after cardiac death (formerly known as non-heart-beating organ
donation), I and others raised the question of whether the organ donor patients were truly dead after only five minutes of asystole. The five-minute rule was accepted by the Institute of Medicine as the point at which death could be declared and the organs procured.59 Ours was a biologically valid criticism because, at least in theory, some such patients could be resuscitated after five minutes of asystole and still retain measurable brain function. If that was true, they were not yet dead at that point so their death declaration was premature. But thereafter I changed my position to support programs of organ donation after cardiac death. I decided that it was justified to accept a compromise on this biological point when I realized that donor patients, if not already dead at five minutes of asystole, were incipiently and irreversibly dying because they could not auto-re-

suscitate and no one would attempt their resuscitation. Because their loss of circulatory and respiratory functions was permanent if not yet irreversible, there would be no difference whatsoever in their outcomes if their death were declared after five minutes of asystole or after 60 minutes of asystole. I concluded that, from a public policy perspective, accepting the permanent loss of circulatory and respiratory functions rather than requiring their irreversible loss was justified. The good accruing to the organ recipient, the donor patient, and the donor family resulting from organ donation justified overlooking the biological shortcoming because, although the difference in the death criteria was real, it was inconsequential. Of course Alan Shewmon is correct that not all bodily system integration and functions of the organism as a whole are conducted by the brain (though most are) and that the spinal cord and other structures serve relevant roles. And Robert Taylor is correct that many people view brain death as a legal fiction and regard such patients “as good as dead” but not biologically dead. But despite its shortcomings, the whole-brain formulation remains coherent on the grounds of the critical functions of the organism as a whole and on the additional grounds of Korein’s critical system theory. The whole-brain death formulation comprises a concept and public policy that make intuitive and practical sense and have been well accepted by the public throughout many societies. Therefore, while I am willing to acknowledge that whole-brain death formulation remains imperfect, I continue to support it because on the public policy level its shortcomings are relatively inconsequential. Those scholars attacking the established wholebrain death formulation have a duty to show that their proposed alternative formulations not only more accurately represent biological reality, but also can be translated into successful public policy that is intuitively acceptable and maintains public confidence in physicians’ accuracy in death determination and in the integrity of the organ procurement enterprise. Although I acknowledge certain weakness of the wholebrain death formulation, I hold that it most accurately maps our consensual implicit concept of death in a technological age and, as a consequence, it has been accepted by societies throughout the world. References
1. The early history of “brain death” is discussed in M. S. Pernick, “Brain Death in a Cultural Context: The Reconstruction of Death 1967-1981,” in S. J. Youngner, R. M. Arnold, and R. Schapiro, eds., The Definition of Death: Contemporary Controversies (Baltimore: Johns Hopkins University Press, 1999): 13-33; and M. N. Diringer and E. F. M. Wijdicks, “Brain Death in Historical Perspective,” in E. F. M. Wijdicks, ed., Brain Death (Philadelphia: Lippincott Williams & Wilkins, 2001): 5-27. Early reports from France de-

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SYMPOSIUM scribed coma dépassé (a state beyond coma). See P. Mollaret and M. Goulon, “Le Coma Dépassé (Mémoire Préliminaire)” Revue Neurologique 101 (1959): 3-15. The Harvard Medical School report was the earliest widely publicized article to claim that such patients were dead. See “A Definition of Irreversible Coma: Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death,” JAMA 205 (1968): 337-340. 2. “Brain death” is the colloquial term for human death determination using tests of absent brain functions. But it is an unfortunate term because it is inherently misleading. It falsely implies that there are two types of death: brain death and ordinary death, instead of unitary death tested using two sets of tests. It also wrongly suggests that only the brain is dead in such patients. Robert Veatch stated that because of these shortcomings he uses the term only in quotation marks (personal communication November 4, 1995). 3. In 1970, Kansas became the first state to enact a death statute incorporating the new concept of brain death, a mere two years after the Harvard Medical School report. See I. M. Kennedy, “The Kansas Statute on Death – An Appraisal,” New England Journal of Medicine 285 (1971): 946-950, at 946. 4. See G. S. Belkin, “Brain Death and the Historical Understanding of Bioethics,” Bulletin of the History of Medical Allied Sciences 58 (2003): 325-361; E. F. M. Wijdicks, “The Neurologist and Harvard Criteria for Brain Death,” Neurology 61 (2003): 970-976; M. Giacomini, “A Change of Heart and a Change of Mind? Technology and the Redefinition of Death in 1968,” Social Science & Medicine 44 (1997): 1465-1482; and M. S. Pernick, supra note 1. 5. In nearly all states, brain death is incorporated into the statute of death. In a few jurisdictions, brain death is permitted in administrative regulations. See H. R. Beresford, “Brain Death,” Neurologic Clinics 17 (1999): 295-306. For international practices of brain death, see E. F. M. Wijdicks, “Brain Death Worldwide: Accepted Fact but No Global Consensus in Diagnostic Criteria,” Neurology 58 (2002): 20-25. 6. S. J. Youngner, R. M. Arnold, and R. Schapiro, eds., The Definition of Death: Contemporary Controversies (Baltimore: Johns Hopkins University Press, 1999). 7. See, for example, R. D. Truog, “Is it Time to Abandon Brain Death?” Hastings Center Report 27, no. 1 (1997): 29-37; R. M. Taylor, “Reexamining the Definition and Criterion of Death,” Seminars in Neurology 17 (1997): 265-270; P. A. Byrne, S. O’Reilly, and P. M. Quay, “Brain Death – An Opposing Viewpoint,” JAMA 242 (1979): 1985-1990; and J. Seifert, “Is Brain Death Actually Death? A Critique of Redefinition of Man’s Death in Terms of ‘Brain Death,’” The Monist 76 (1993): 175-202. 8. Alan Shewmon’s recent works on this topic include D. A. Shewmon, “The Brain and Somatic Integration: Insights into the Standard Biological Rationale for Equating ‘Brain Death’ with Death,” Journal of Medicine and Philosophy 26 (2001): 457-478; and D. A. Shewmon, “The ‘Critical Organ’ for the Organism as a Whole: Lessons from the Lowly Spinal Cord,” Advances in Experimental Medicine and Biology 550 (2004): 23-42. Other scholars agreeing with him also published works following his article in the Journal of Medicine and Philosophy. 9. H. K. Beecher, chairman of the landmark 1968 Harvard Medical School Committee report (see note 1), later warned: “Only a very bold man, I think, would attempt to define death.” See H. K. Beecher, “Definitions of ‘Life’ and ‘Death’ for Medical Science and Practice,” Annals of the New York Academy of Sciences 169 (1970): 471-474. 10. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Defining Death: Medical, Legal and Ethical Issues in the Determination of Death (Washington, DC: U.S. Government Printing Office, 1981): at 31-43. 11. J. L. Bernat, C. M. Culver and B. Gert, “On the Definition and Criterion of Death,” Annals of Internal Medicine 94 (1981): 389394. 12. Alan and Elisabeth Shewmon recently claimed that my approach is futile because language constrains our capacity to conceptualize life and death. They regard death as an “ur-phenomenon” that is “…conceptually fundamental in its class; no more basic concepts exist to which it can be reduced. It can only be intuited from our experience of it…” See D. A. Shewmon and E. S. Shewmon, “The Semiotics of Death and its Medical Implications,” Advances in Experimental Medicine and Biology 550 (2004): 89-114. Winston Chiong also rejected my analytic approach claiming that there can be no unified definition of death. Yet, he agreed that the whole-brain criterion of death is the most coherent concept of death. See W. Chiong, “Brain Death Without Definitions,” Hastings Center Report 35 (2005): 20-30. 13. I have discussed these conditions in greater detail in J. L. Bernat, “The Biophilosophical Basis of Whole-Brain Death,” Social Philosophy & Policy 19, no. 2 (2002): 324-342. 14. Robert Veatch exemplifies a scholar who has attempted to redefine death for the purpose of considering patients in persistent vegetative states as dead, despite the fact that all societies consider them alive. See, for example, R. M. Veatch, “The Impending Collapse of the Whole-Brain Definition of Death,” Hastings Center Report 23, no. 4 (1993): 18-24. Linda Emanuel abstracted death to a clinically unhelpful metaphysical level: “there is no state of death…to say ‘she is dead’ is meaningless because ‘she’ is not compatible with ‘dead.’” See L. L. Emanuel, “Reexamining Death: The Asymptotic Model and a Bounded Zone Definition,” Hastings Center Report 25, no. 4 (1995): 27-35. 15. For a scholar who argues that the definition of death is largely a normative social matter, see R. M. Veatch, “The Conscience Clause: How Much Individual Choice in Defining Death Can Our Society Tolerate?” in S. J. Youngner, R. M. Arnold, and R. Schapiro, eds., The Definition of Death: Contemporary Controversies (Baltimore: Johns Hopkins University Press, 1999): 137-160. 16. In this regard, I disagree with Jeff McMahon that there are two types of death: death of the organism and death of the person. See J. McMahon, “The Metaphysics of Brain Death,” Bioethics 9 (1995): 91-126. 17. A. Halevy and B. Brody, “Brain Death: Reconciling Definitions, Criteria, and Tests,” Annals of Internal Medicine 119 (1993): 519525. 18. R. S. Morison, “Death: Process or Event?” Science 173 (1971): 694-698 and L. Kass, “Death as an Event: A Commentary on Robert Morison,” Science 173 (1971): 698-702. The Shewmons (see note 12) recently described the process vs. event argument as “tiresome” because, as a consequence of linguistic constraints, death can be understood only as an event. 19. J. L. Bernat, C. M. Culver, and B. Gert, “On the Definition and Criterion of Death,” Annals of Internal Medicine 94 (1981): 389394. 20. S. Parnia, D. G. Waller, R. Yeates, and P. Fenwick, “A Qualitative and Quantitative Study of the Incidence, Features, and Etiology of Near Death Experiences in Cardiac Arrest Survivors,” Resuscitation 48 (2001): 149-156. 21. R. M. Veatch, “The Whole Brain-Oriented Concept of Death: An Outmoded Philosophical Formulation,” Journal of Thanatology 3 (1975): 13-30; R. M. Veatch, “Brain Death and Slippery Slopes,” Journal of Clinical Ethics 3 (1992): 181-187; and R. M. Veatch, “The Impending Collapse of the Whole-Brain Definition of Death,” Hastings Center Report 23, no. 4 (1993): 18-24. 22. R. M. Veatch, supra note 21, at 23. 23. See, for example, M. B. Green and D. Wikler, “Brain Death and Personal Identity,” Philosophy and Public Affairs 9 (1980): 105133; S. J. Youngner and E. T. Bartlett, “Human Death and High Technology: The Failure of the Whole Brain Formulation,” Annals of Internal Medicine 99 (1983): 252-258; and K. G. Gervais, Redefining Death (New Haven: Yale University Press, 1986). 24. J. L. Bernat, C. M. Culver, and B. Gert, “On the Definition and Criterion of Death,” Annals of Internal Medicine 94 (1981): 389394. I later refined the definition to require only the permanent loss of the critical functions of the organism as a whole, in response to exceptional cases raised, but this is mostly quibbling. See J. L. Bernat, “Refinements in the Definition and Criterion of Death,” in S. J. Youngner, R. M. Arnold, and R. Schapiro, eds., The Definition of Death: Contemporary Controversies (Baltimore: Johns Hopkins University Press, 1999): 83-92.

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James L. Bernat 25. J. Loeb, The Organism as a Whole (New York: G. P. Putnam’s Sons, 1916). 26. See, for example, the explanation of emergent functions in M. Mahner and M. Bunge, Foundations of Biophilosophy (Berlin: Springer-Verlag, 1997): at 29-30. 27. J. Korein, “The Problem of Brain Death: Development and History,” Annals of the New York Academy of Sciences 315 (1978): 19-38. For the most recent refinement of Korein’s argument, see J. Korein and C. Machado, “Brain Death: Updating a Valid Concept for 2004,” Advances in Experimental Medicine and Biology 550 (2004): 1-14. 28. I have discussed these three formulations in greater detail in J. L. Bernat, “How Much of the Brain Must Die in Brain Death?” Journal of Clinical Ethics 3 (1992): 21-26. 29. The text of Defining Death makes clear that the President’s Commission found an important distinction between brain clinical functions and brain activities. See President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Defining Death: Medical, Legal and Ethical Issues in the Determination of Death (Washington, DC: U.S. Government Printing Office, 1981): at 28-29. 30. Residual EEG activity seen on unequivocally brain dead patients has been described by M. M. Grigg, M. A. Kelly, G. G. Celesia, M. W. Ghobrial, and E. R. Ross, “Electroencephalographic Activity after Brain Death,” Archives of Neurology 44 (1987): 948-954. 31. F. Plum and J. B. Posner, The Diagnosis of Stupor and Coma, 3rd ed., (Philadelphia: F. A. Davis, 1980): at 88-101. 32. These are the most common causes of brain death. See D. Staworn, L. Lewison, J. Marks, G. Turner, and D. Levin, “Brain Death in Pediatric Intensive Care Unit Patients: Incidence, Primary Diagnosis, and the Clinical Occurrence of Turner’s Triad,” Critical Care Medicine 22 (1994): 1301-1305. 33. H. C. Kinney and M. A. Samuels, “Neuropathology of the Persistent Vegetative State: A Review,” Journal of Neuropathology and Experimental Neurology 53 (1994): 548-558. 34. Multi-Society Task Force on PVS, “Medical Aspects of the Persistent Vegetative State. Parts I and II,” New England Journal of Medicine 330 (1994): 1499-1508, 1572-1579. 35. Conference of Medical Royal Colleges and their Faculties in the United Kingdom, “Diagnosis of Brain Death,” British Medical Journal 2 (1976): 1187-1188; and C. Pallis, ABC of Brainstem Death (London: British Medical Journal Publishers, 1983). 36. I have provided more extensive arguments with examples to support this claim in J. L. Bernat, “A Defense of the Whole-Brain Concept of Death,” Hastings Center Report 28, no. 2 (1998): 1423 at 18-19. 37. The Quality Standards Subcommittee of the American Academy of Neurology, “Practice Parameters for Determining Brain Death in Adults [Summary Statement],” Neurology 45 (1995): 1012-1014. The tests accepted in various European countries are described and compared in W. F. Haupt and J. Rudolf, “European Brain Death Codes: A Comparison of National Guidelines,” Journal of Neurology 246 (1999): 432-437. 38. The clinical and confirmatory tests for brain death are described in detail in E. F. M. Wijdicks, “The Diagnosis of Brain Death,” New England Journal of Medicine 344 (2001): 1215-1221. 39. See, for example, R. E. Mejia and M. M. Pollack, “Variability in Brain Death Determination Practices in Children,” JAMA 274 (1995): 550-553; and M. Y. Wang, P. Wallace, and J. B. Gruen, “Brain Death Documentation: Analysis and Issues,” Neurosurgery 51 (2002): 731-735. 40. D. A. Shewmon, “Chronic ‘Brain Death’: Meta-analysis and Conceptual Consequences,” Neurology 51 (1998): 1538-1545. 41. E. F. M. Wijdicks and J. L. Bernat, “Chronic ‘Brain Death’: Metaanalysis and Conceptual Consequences,” (letter to the editor) Neurology 53 (1999): 1639-1640. 42. I defend this claim in J. L. Bernat, “On Irreversibility as a Prerequisite for Brain Death Determination,” Advances in Experimental Medicine and Biology 550 (2004): 161-167. 43. This conclusion was reached by Alexander Capron, the former Executive Director of the President’s Commission (see note 10), in A. M. Capron, “Brain Death – Well Settled Yet Still Unresolved,” New England Journal of Medicine 344 (2001): 12441246. 44. E. F. M. Wijdicks, “Brain Death Worldwide: Accepted Fact but No Global Consensus in Diagnostic Criteria,” Neurology 58 (2002): 20-25. 45. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Defining Death: Medical, Legal and Ethical Issues in the Determination of Death (Washington, DC: U.S. Government Printing Office, 1981): at 72-84. 46. Law Reform Commission of Canada, Criteria for the Determination of Death (Ottawa: Law Reform Commission of Canada, 1981). 47. R. A. Burt, “Where Do We Go from Here?” in S. J. Youngner, R. M. Arnold, and R. Schapiro, eds., The Definition of Death: Contemporary Controversies (Baltimore: Johns Hopkins University Press, 1999): 332-339. 48. See E. F. M. Wijdicks, supra note 5, at 22-23. 49. In the early brain death era, commentators asserted that brain death was compatible with the world’s principal religions. See F. J. Veith, J. M. Fein, M. D. Tendler, R. M. Veatch, M. A. Kleiman, and G. Kalkines, “Brain Death: I. A Status Report of Medical and Ethical Considerations,” JAMA 238 (1977): 1651-1655. 50. C. S. Campbell, “Fundamentals of Life and Death: Christian Fundamentalism and Medical Science,” in S. J. Youngner, R. M. Arnold, and R. Schapiro, eds., The Definition of Death: Contemporary Controversies (Baltimore: Johns Hopkins University Press, 1999): 194-209. 51. Some Catholic commentators had long claimed that brain death violated Catholic teachings. See P. A. Byrne, et al., supra note 7. But in August, 2000, in an address to the 18th Congress of the International Transplantation Society meeting in Rome, the Pope asserted that brain death was fully consistent with Catholic doctrine. For a detailed historical discussion of earlier statements on brain death from Vatican academies, an account of the process of Vatican decision making, and an explanation of the Pope’s recent statement, see E. J. Furton, “Brain Death, the Soul, and Organic Life,” The National Catholic Bioethics Quarterly 2 (2002): 455-470. 52. The rabbinic debate is explained in F. Rosner, “The Definition of Death in Jewish Law,” in S. J. Youngner, R. M. Arnold, and R. Schapiro, eds., The Definition of Death: Contemporary Controversies (Baltimore: Johns Hopkins University Press, 1999): 210-221. 53. Saudi Arabia represents a conservative interpretation of Islam and brain death is accepted there. See B. A. Yaqub and S. M. Al-Deeb, “Brain Death: Current Status in Saudi Arabia,” Saudi Medical Journal 17 (1996): 5-10. 54. S. Jain and M. C. Maheshawari, “Brain Death – The Indian Perspective,” in C. Machado, ed., Brain Death (Amsterdam: Elsevier, 1995): 261-263. 55. M. Lock, “Contesting the Natural in Japan: Moral Dilemmas and Technologies of Dying,” Culture, Medicine and Psychiatry 19 (1995): 1-38. 56. See Shewmon, supra note 8. 57. See Shewmon, supra note 40. 58. R. M. Taylor, “Re-examining the Definition and Criterion of Death,” Seminars in Neurology 17 (1997): 265-270. 59. I made this point in a review of a pre-publication draft of the Institute of Medicine report. See, Institute of Medicine, NonHeart-Beating Organ Transplantation: Practice and Protocols (Washington DC: National Academy Press, 2000): at 22-24. The same point was made in reference to an earlier publication of the Institute of Medicine in J. Menikoff, “Doubts about Death: The Silence of the Institute of Medicine,” Journal of Law, Medicine & Ethics 26 (1998): 157-165.

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