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1

Permanence can be defended

INTRODUCTION

The modern definition of death is the irreversible cessation of the integrated

functioning of the organism as a whole.1 It is accepted that one criterion which

satisfies this definition is the irreversible cessation of circulation.2 This is reflected

in the first limb of section 1 of the Uniform Determination of Death Act 1981

(UDDA), which provides that ‘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

debate has arisen, however, about what the term ‘irreversible’ means in the

context of the practice of organ donation after circulatory determination of death

(DCDD). In DCDD, an organ donor must be dead before organ procurement from

the donor can proceed. This rule is known as the dead donor rule.3 In DCDD

practice, death is declared, and organs procured, at just five minutes after the

cessation of circulation. An increasingly common view expressed in the literature4

1 See J. Bernat. Whither Brain Death. Am J Bioeth 2014; 14 (8): 3-8, p.5; and F. Miller and R. Truog. Death, Dying and Organ Transplantation. New York: Oxford University Press; 2012, p. 113. 2 The other way the definition has been held to be satisfied is by the irreversible loss of all brain function. There is considerable debate about this alternative criterion that we shall not enter into here. We focus exclusively on the circulatory-respiratory criterion. 3 The dead donor rule has a number of different expressions, but Franklin Miller and Robert Truog accept the common reading that donors must be determined to be dead before organs can be procured. Miller and Truog. op.cit. note 1, p. 113. 4 A. R. Joffe et al. Donation after cardiocirculatory death: a call for a moratorium pending full public disclosure and fully informed consent. Philos Ethics Humanit Med 2011; 6: 1-20, p. 1; R. Truog and F. Miller. Counterpoint: Are Donors After Circulatory Death Really Dead, and Does it Matter? No, and Not Really. Chest 2010; 138: 16-18, p. 17; Miller and Truog. op.cit. note 1, p. 99; D. Marquis. Are DCD Donors Really Dead? Hastings Cent Rep 2010; 40(3): 24-31, p. 31.

2

on DCDD is that we do not know whether, at just five minutes after circulation has

ceased,5 the cessation is irreversible – as required by the definition of death and

the quoted wording from the UDDA.6 A person whose circulatory-respiratory

function has only been inactive for five minutes may in some cases still have that

function restarted by means of cardio-pulmonary resuscitation (CPR) and other

efforts, and so, on this basis, may still be alive. It is claimed that organ

procurement at five minutes following the cessation of circulatory-respiratory

function may, therefore, violate the dead donor rule.7

In order to respond to these doubts, while ensuring compliance with the dead

donor rule and the UDDA definition of death, some authors have claimed that

‘irreversible’ must be interpreted to mean permanent8 and that, in cases where

CPR is required to restart circulation but is not ethically appropriate, we should

rely on the doctor’s intention not to restart circulation in the donor. In these

cases, it is argued, circulatory-respiratory function has, in fact, permanently

ceased. Circulation has therefore ‘irreversibly’ ceased in the sense that

spontaneous circulation will not restart (because no attempt is allowed to be

made to restart it), not that it cannot restart.

Critics of this construal of the term ‘irreversible’ retort that death is not a

normative, but a biological, phenomenon and, correlatively, is always a matter of

5 And sometimes at 2 minutes, though we defend the five minute mark in this paper. 6 See note 4 for references. 7 See note 4. 8 James L. Bernat et al. The circulatory-respiratory determination of death in organ donation. Crit Care Med 2010; 38(3) 972-979. This is a consensus statement on the determination of death in DCDD cases. See also Sam D. Shemie et al. International Guideline Development for the Determination of Death. Intensive Care Med 2014; 40, 788-797.

3

fact.9 Death, they claim, has one univocal meaning, and it means that circulatory-

respiratory function must not only have ceased, but must also not be capable of

being restarted.10 So, if circulatory-respiratory function is still capable of being

restarted, then the cessation of this function remains reversible and the patient

therefore cannot be dead. On these critics’ view, there may well be a moral and

legal obligation not to resuscitate the donor, but this is a rule about what should

or should not be done to the patient and in no way reflects the biological

condition of the patient, which is an ontological rather than a normative issue.11

Furthermore, critics say, to rely on permanence rather than irreversibility in

insisting that DCDD patients are dead, is to confuse a prognosis of death with a

diagnosis of death.12 While it may be the case that, at the time when death is

declared in standard practice, it is almost certain that death (in the sense of the

irreversible cessation of circulatory-respiratory function) will eventuate (because

reversal could only occur by human actions which have already been ruled out),

this does not mean that death has already eventuated. Rather, the declaration

only gives a prognosis that death will inevitably occur.13

Such critics of the belief that irreversibility means permanence differ, amongst

themselves, when considering the consequences of their criticisms for the

practice of DCDD. According to Ari Joffe, we should declare a moratorium on

DCDD, pending full public disclosure of the reality that these patients are not

9 Marquis and Truog and Miller, op. cit. note 4. 10 Joffe et al, op.cit. note 4, p 2; S. Shah, R. Truog and F. Miller. Death and Legal Fictions. J Med Ethics 2011; 37(12): 719-722, p. 720; D. Marquis, op.cit. note 4, p. 31. 11 Miller and Truog, op. cit. note 1, p. 113. 12 Truog and Miller. op. cit. note 4, p.16; Joffe et al, op.cit. note 4, p. 20. 13 Ibid.

4

known to be dead14 at the time death is declared in practice, and at the time that

organs are procured. For Miller and Truog, on the other hand, there is no need for

a moratorium as such, but we should be more transparent about the fact that we

are adopting a moral and legal fiction that such people are dead,15 and we need to

be honest and open with the public about the reality of DCDD practice. So, for

Miller and Truog, unlike for Joffe, the practice of DCDD need not cease, because

these patients are ‘as good as’ dead, and no harm befalls the patient when

procuring their organs as we currently do. We just need to acknowledge that, in

doing so, we are actually violating the dead donor rule, and so, according to Miller

and Truog, we should abandon that rule for the sake of transparency.16

In this paper, we defend the view that ‘irreversibility’ can reasonably be

interpreted to mean permanence. We argue that DCDD candidates can

legitimately be categorised as dead. Our main argument will be that there is a

problem in adopting a criterion for declaring death whose satisfaction is

dependent on actions which are expressly ruled out as inappropriate. This

problem has not been sufficiently acknowledged but, in our view, it proves fatal to

the criticisms of these authors because their criticisms are dependent on the

adoption of such a criterion. We shall also highlight some other problems with the

criticisms we have just canvassed.17 We shall then turn to more recent, and

controversial, practices, such as the procurement of hearts for transplantation

14 Joffe et al, op. cit. note 4, p. 17. 15 Miller and Truog. op.cit. note 1, chapter 7. 16 Ibid, esp chapter 6. 17 We have argued elsewhere that there is a tendency by Miller and Truog, and also Joffe, to slide from the claim that these patients might not be dead, and are not known to be dead, to the very different claim that these patients are not dead, and are known not to be dead. We will not pursue the implications of this slide again here. See A McGee and D Gardiner. Donation after the Circulatory-Respiratory Determination of Death: Some Responses to Recent Criticisms. J Med Philos (forthcoming).

5

which can include the use of extracorporeal membrane oxygenation (ECMO) to

restart the heart inside the donor’s body, discussing the implications of our

analysis for this case.

1. CAN WE APPLY THE WRONG STANDARD OF DECLARING DEATH IN

CERTAIN CASES?

In all jurisdictions in Australia, the definition of death mirrors that in the UDDA in

the USA. In the case of the circulatory criterion, death is ‘the irreversible cessation

of the circulation of blood of the person.’18 As we have outlined above, some

supporters of the view that DCDD patients are dead at the time of organ

procurement have claimed that irreversibility can be construed to mean

permanence. The rationale for this claim has not always been adequately

explained. For instance, James Bernat states that permanence is a ‘valid proxy’ for

irreversibility:

Permanent cessation of circulation constitutes a valid proxy for its

irreversible cessation because it quickly and inevitably becomes

irreversible and because there is no difference in outcome between using

a permanent or irreversible standard.19

18 Criminal Code Act 1995 (Cth) s 4(1) (Dictionary attached to Sch 1, the Criminal Code); Transplant and Anatomy Act 1978 (ACT) s 45(1); Criminal Code Act 2002 (ACT) s 3 (Dictionary attached to the Criminal Code); Human Tissue Act 1983 (NSW) s 33; Transplantation and Anatomy Act (NT) s 23; Transplantation and Anatomy Act 1979 (QLD) s 45; Definition of Death Act 1983 (SA) s 2; Human Tissue Act 1985 (SA) s 27A; Human Tissue Act 1982 (Vic) s 41; Interpretation Act 1984 (WA) s 13C. 19 J L Bernat. Point: Are Donors After Circulatory Death Really Dead? And Does it Matter? Yes and Yes. Chest 2010; 138: 13-16, p. 14.

6

It is this claim that gives rise to the charge of “conflating a prognosis of imminent

death with diagnosis of death”.20 When we diagnose death, we are diagnosing

that death has occurred; we are not making a prediction that it will, with

certainty, occur. That would be a prognosis. So, by claiming that we can declare

death now, on the basis that death will occur later, Bernat is indeed confusing a

prognosis with a diagnosis. When Robert Truog and Franklin Miller point this out

to him, Bernat concedes this point. He refers to Miller and Truog’s reply and says:

They acknowledge that most hospital death determinations are made at

the moment of asystole, which, from a purely ontologic perspective, is

before the patient is dead.21

He then adds:

Our society permits physicians to declare death earlier for social benefits,

rather than awaiting signs of rigor mortis or other unequivocal signs of

circulatory irreversibility.22

Bernat here seems to be conceding that these patients are not dead at the time

death is declared, but ‘quickly and inevitably become…’23 dead shortly thereafter,

so permanence is a ‘valid surrogate marker’24 for irreversibility. In putting the

point this way in response to Miller and Truog, he either remains vulnerable to

the criticism that he confuses a prognosis with a diagnosis, or is actually

20 See Truog and Miller. op. cit. note 4, p. 16. 21 J. Bernat. Rebuttal. Chest 2010; 138: 18-19, p. 19. 22 Ibid. 23 Ibid; emphasis added 24 Ibid.

7

conceding that the patients are not dead at the time death is declared, while

insisting that there is no problem in declaring death when we do. Neither way of

explaining permanence overcomes the charge that, in procuring organs at just five

minutes after asystole, the dead donor rule is being routinely violated.25

Is there another way of defending the claim that ‘irreversible’ can be construed to

mean ‘permanent’? We believe so. It is important to understand that the term

‘irreversible’, as used in the UDDA, and in the legislation that adopts the same

wording, is ambiguous. The term ‘irreversible’ means either or both of two things:

(a) not capable of being resuscitated by CPR or other human action; or (b) not

capable of spontaneous autoresuscitation.26

Joffe, Marquis, Truog and Miller all seem to believe that ‘irreversible’ means both

of these things. They do not entertain the possibility that it might mean either

rather than both. In one sense, once the possibility that autoresuscitation should

occur has passed, the cessation of circulation is irreversible, unless human

resuscitative efforts are made.27 But in cases where resuscitative efforts are

25 In a later paper, Bernat claims that these patients are not biologically dead but are dead if we take the meaning of ‘death’ to be defined by standard medical practice. Bernat, On noncongruence between the concept and determination of death. Hastings Cent Rep 2013; 43(6): 25-33. This way of explaining the point, too, is not adequate, because it concedes that the patient is not biologically dead, and so does not respond in any way to the charge that, at the time organs are procured, the dead donor rule is being violated. 26 It might be objected that ‘irreversible’ is not ambiguous, because it does not, as a term, discriminate between ways in which death can be irreversible. However, our point is about how the term has been construed in medical practice. Since practitioners believe that DCDD patients are dead once autoresuscitation has been ruled out as a possibility, they are construing the term ‘irreversible’ to mean that the patient will no longer spontaneously resuscitate, and will not be brought back to life via resuscitative efforts, these being ruled out. The rest of this paper is a defence of this interpretation. 27 What about the possible restarting of the heart that is not due to conscious resuscitative efforts? If the heart started because the patient was accidentally bumped, for example, this would be a case of resuscitation by human action, even though it is accidental. But such cases are so rare (the authors have found no reported cases), it is

8

unethical and illegal, the time-frame for reversibility via human effort is

inapplicable. After waiting for the chance of auto-resuscitation to pass, doctors do

not need to wait for another, second period of time to pass where that period of

time is only required in order to rule out the possibility of successful CPR. For we

already know that CPR is not permitted, and is therefore irrelevant.

However, let us assume, for the moment, that 'irreversible’ means both (a) and

(b). Our question then is this: How do we tell whether a person's circulatory-

respiratory function has irreversibly ceased? If we believe that both

autoresuscitation and resuscitation by human action must be impossible before

death can be declared, then one way to tell whether irreversible cessation has

been achieved is simply to wait until we know that resuscitative efforts would be

futile. But nobody knows exactly when this point is. Of course, we can say, when

the patient has rigor mortis, that the patient’s circulatory-respiratory function

could not be restarted. But what we want to know is the earliest point at which

the cessation of circulatory-respiratory function is irreversible.28 At what point

does it first become accurate to say that a patient has died? It is very difficult to

pin-point with precision the first moment at which the cessation of cardio-

respiratory function becomes irreversible. There are notoriously different times

reasonable for doctors to declare death without taking into account the possibility that, if the patient were accidentally bumped, the patient’s heart might restart. And clearly there is a norm requiring that accidental resuscitation be avoided. In other cases, measures taken to preserve organs can foreseeably result in the accidental restarting of the heart. Although unintended, these cases should also be construed as resuscitation by human action. An example is lung DCDD, where, in Australia, the re-inflation of the patient’s lungs has resulted in the restarting of the heart. A ten minute period must now pass before these measures can commence (see D Gardiner, Report on the 4th International Meeting on Transplantation from Non-Heart Beating Donors. J Intensive Care Soc 2008; 9(2): 206). We believe that it is entirely appropriate that adverse clinical events lead to an alteration in procedures to maintain compliance with the dead donor rule. If DCDD evolves into more routine retrieval of cardio-thoracic organs (hearts and lungs), additional safeguards to ensure permanence may be required. 28 As Bernat, op.cit. note 21, remarks, timeliness in death declarations is important.

9

given, from minutes to ‘several hours’.29 Nobody really knows the exact point at

which irreversibility in this sense is reached. And even if a general time could be

given, there are likely to be many significant variations. Much will depend on the

individual concerned and the technology and effort committed to their

resuscitation. Patients who receive CPR are obviously more likely to revive than

patients who do not, but the majority will never revive.30

Another way to tell if irreversibility is achieved is to attempt resuscitation and fail

to resuscitate the patient. For here, we verify that the circulation of the actual

patient before us cannot be reversed, and so we fulfil one of the criteria for the

definition of death without having to rely on a general rule about when

irreversibility is taken to be achieved. However, it is clearly inappropriate to adopt

this procedure in every case when declaring death. In many cases, it will not be

ethically appropriate or legally permissible to attempt CPR or other resuscitative

measures. For example, a patient may have made a valid do not attempt

resuscitation (DNAR) order31 or may simply be too frail, so that doctors conclude

that CPR would be damaging and hence inappropriate. Does it make sense, in

29 See the differences given by the following: A. Shewmon. Brainstem death, brain death and death: a critical re-evaluation of the purported equivalence. Issues Law Med 1998; 14(2): 125-145, p. 142 (30 mins); A. Ali et al. Cardiac Recovery in Human Non-Heat-Beating Donor after Extracorporeal Perfusion: Source for Human Heart Donation? J Heart Lung Transplant 2009; 28(3): 290-293 (23 mins); M. DeVita. The Death Watch: Certifying Death using Cardiac Criteria. Prog Transplant 2001; 11: 58-66, p. 65 (several hours). 30 A US retrospective review of CPR attempts found that CPR was only ever successful in 49% of patients: Z. Goldberger et al. Duration of Resuscitation Efforts and Survival after In-Hospital Cardiac Arrest: An Observational Study. Lancet 2012; 380: 1473. In a similar UK review only 34% of patients had return of circulation and survived the immediate CPR attempt: National Confidential Inquiry into Patient Outcomes and Death. 2012. Time to Intervene? A Review of Patients who Underwent a Cardiopulmonary Resuscitation as a result of In-Hospital Cardiopulmonary Arrest. United Kingdom: NCEPOD. Available at: Available at http://www.ncepod.org.uk/2012report1/downloads/CAP_fullreport.pdf [Accessed 7 March 2014]. In both studies survival to hospital discharge was 15%. 31 A do not attempt resuscitation (DNAR) order has an important acknowledgment built into the language that it is not known if the cardiac arrest will be reversible but mandating that the attempt to resuscitate not be made in any case.

10

these cases, to wait until the time has passed at which attempts to resuscitate via

CPR or other resuscitative measures would fail, before declaring death? We do

not believe it does, and neither does current medical practice. This seems to be

completely unnecessary for those patients for whom CPR is inappropriate. Why

would they need to wait for another, second period of time to pass where that

period of time is only required in order to rule out the possibility of successful

CPR? Similarly, a death watch is unnecessary here beyond the need to rule out

autoresuscitation. We certainly do not need to wait up to an hour (itself an

arbitrary time frame, for nobody can say truly when the point of irreversibility is

reached, given how variable that point is among patients) to rule out the

possibility that some misinformed doctor would attempt CPR on, say, a frail, dying

old lady.32 When doctors declare death in a DNAR case, they therefore merely rule

out autoresuscitation.33

32 We discuss the frail old lady example in more detail elsewhere in McGee and Gardiner. op.cit. note 17. One objection raised by an anonymous reviewer is that, in the case of the frail lady and other non-DCDD cases, nothing is going to be done to the body of the patient whose heart has stopped beating before it becomes a cold corpse. The reviewer points out that this is not the case with DCDD patients. After just five minutes, the patient’s organs are going to be procured. Can we really be confident that the donor is dead and cannot be resuscitated at this time? Our claim above, and one we will defend in the rest of this paper, is that we can indeed be confident, because it is not a precondition to declaring death in this patient’s case that this patient cannot be resuscitated. The impossibility of resuscitation, where resuscitation is not appropriate, is not the appropriate standard and timeframe to adopt. Instead, in cases where resuscitation is not appropriate, we can revert to the timeframe and standard accepted when, in 1846, Eugène Bouchut advocated the use of the stethoscope as a way of determining death (which avoided all the fears of premature burial): Bouchut recommended five minutes as a safe time from which death could be declared. For more on Bouchut, see p 12ff and p 19-20. As noted in footnote 27, there are cases where actions taken to preserve organs can result in unintended resuscitation. This happened in Australia in a case where efforts were being made to preserve the lungs for transplantation. In that case, the declaration of death was invalidated. As we have noted, a timeframe of 10 minutes is now required in Australia before lung DCDD can proceed. If this time frame should prove inadequate, it would be necessary to increase it again. 33 There is also debate about how much time must pass before autoresuscitation has been ruled out. The general view, criticised by Joffe et al op.cit. note 4, is that 5 minutes is more than adequate to rule out autoresuscitation. See K. Hornby, L. Hornby, and S. Shemie. A Systematic Review of Autoresuscitation after Cardiac Arrest. Crit Care Med 2010; 38: 1246. It is of interest to note that Miller and Truog have only recently begun to question this

11

The main problem, then, for the criticisms we have been discussing concerns the

rationality of adopting a standard of declaring death which is defined by human

action, but applying that standard to a case where such human action has

expressly been ruled out.

It is for these reasons that, as we have maintained, the concept of ‘irreversibility’,

as used in the UDDA (and the Acts of Parliament in other jurisdictions that are

modelled on it) is ambiguous. It can have either or both of the meanings

mentioned on page 7-8, namely, (a) not capable of being resuscitated by CPR or

other human action; or (b) not capable of spontaneous autoresuscitation. The

reference in these Acts of Parliament to the determination of the issue in

accordance with accepted medical standards34 strengthens this conclusion, for it

means that we have to look and see how medical practitioners actually declare

death as a matter of medical practice.35 And in the cases where resuscitative

measures are not appropriate, only interpretation (b) need apply. When we have

ruled out autoresuscitation, we can say that the cessation of circulatory-

respiratory function is irreversible.

view (Miller and Truog. op. cit. note 1), having accepted it as late as 2010: Truog and Miller. op. cit. note 4. Their U-turn is not based on any new data, but on an attempt to criticize the existing reports in the literature on which the timeframe is based. It is outside the scope of the present paper to enter into this particular issue. 34 Uniform Determination of Death Act 1981 (USA), s 1. 35 The Academy of Medical Royal Colleges gives guidance for medical practitioners in the UK on how to diagnose and confirm all deaths after cardiorespiratory arrest (A Code of Practice for the Diagnosis and Confirmation of Death, 2008, http://www.bts.org.uk/Documents/A%20CODE%20OF%20PRACTICE%20FOR%20THE%20DIAGNOSIS%20AND%20CONFIRMATION%20OF%20DEATH.pdf, accessed 22 Aug 2016)). Regardless of whether the death is in the community or the hospital, for DCD or for non DCD, the same minimum of five minutes’ observation is required to establish that irreversible cardiorespiratory arrest has occurred.

12

2. THE RELATIONSHIP BETWEEN THE CONCEPT OF DEATH AND THE

CONCEPT OF IRREVERSIBILITY

2.1 The significance of advances in technology

It is important to recall that notions of reversibility, as defined by reference to

human conduct such as CPR or other resuscitative efforts, are recent concepts

reflecting recent developments in technology. The possibility of resuscitation is

largely a 20th century phenomenon. Contrary to the assertions of critics, it is by no

means the case that irreversibility, understood as including the failure or

impossibility of resuscitative measures, is an essential precondition to the correct

application of the concept of death. At most, it could only be a precondition to the

correct application of the modern concept of death – a concept that would

thereby depart from that which has applied for most of human history. We had a

concept of death well before we had the concept of resuscitation. Human beings

have been dying for 200,000 years. But the idea of ‘reversing’ the stopping of

someone’s heart could only have gained traction when resuscitation became a

real possibility. When the stethoscope was proposed by Eugène Bouchut in the

19th century as a way of determining death, CPR as we now use it was unknown.36

36 The Parisian Academy of Sciences had offered a prize to the physician who could successfully make the diagnosis of death safe, prompt and easy; thereby allaying societal fears regarding premature burial. Eugène Bouchut won this prize in 1846 for his proposal that by listening to the heart with a stethoscope, if no heartbeat could be heard for five minutes, then it was safe to declare death. What is remarkable is that in his full treatise published in 1849 he at no time makes any mention of the resuscitation techniques of the period, which he surely would have been aware of at least theoretically: E. Bouchut. Traité des signes de la mort et des moyens de prévenir les enterrements prématurés. Paris: J.B. Baillière; 1849. This might be because positive pressure pulmonary resuscitation had effectively been abandoned in France by Bouchut’s time owing to fears that expired air was poisonous and that the use of bellows could damage the lungs. Medical efforts at resuscitation were generally reserved for newborns or drownings and warming was often the recommended first line of treatment, though indirect methods of chest compressions

13

As Bouchut claimed at the time – well before the development of the practice of

organ donation – it is safe to declare death after five minutes if no sounds can be

heard with the stethoscope. We declare death today using the very same method,

and within the very same time frame. However, at the time of Bouchut, the word

‘irreversible’ would not have appeared in “death means … the irreversible

cessation of circulation of blood in a person’s body”. Rather, death was conceived

as simply the cessation of the circulation of blood in a person’s body.37

The definition of death in the 20th century had to be revisited when CPR and

other forms of resuscitation started to become widely practised. As the technique

became more widely used, the notion of ‘irreversibility’, making reference to

human action such as CPR, was introduced into the definition of death for the first

time; otherwise, we would have to have said that we had raised people from the

dead in resuscitating them in this way. But prior to these technological

developments, was it false to say that people were dead, without reference to the

notion of irreversibility? No, not prior to the redefinition. Prior to ‘irreversibility’

being brought into the definition of death, it was an open question whether we

should call these people, before they underwent resuscitation, dead or alive. Only

once the requirement of irreversibility is brought in can we say that these people

were still in use. Cardiac massage was not properly introduced until the 1950s: P. Safar. 1989. History of Cardiopulmonary-Cerebral Resuscitation. In Cardiopulmonary Resuscitation. W. Jaye and N. Bircher eds. Edinburgh: Churchill Livingstone; R. Trubuhovich. History of Mouth-to-Mouth Ventilation Part 3: the 19th to mid-20th centuries and ‘rediscovery’. Crit Care Resusc 2007; 9(2): 221. Or, alternatively, it might be because, even though Bouchut was well aware of the possibility of resuscitation, he and the Parisian Academy who awarded him his prize felt it was immaterial to the declaration of death. 37 Of course it was true, in Bouchut’s time and earlier, that we needed to make sure people were not still alive when we thought they were dead. Much of the 19th century and the preceding one had been marked by fear of premature burial. But what the stethoscope ruled out was mistaken diagnoses of a different kind from irreversibility.

14

are not dead – ‘dead’ now meaning that a person must not be capable of being

brought back by resuscitation through human action.

How far, though, does this definition in terms of irreversibility now extend? The

philosopher Don Marquis has claimed that ‘death is irreversible’.38 But clearly this

claim is not supposed to be a tautology. There would be no point in telling us that

‘death is irreversible’ if it were not meant to convey to us an important point

about death. And if it were meant as a tautology, it would be wrong, because

resurrection from the dead is a logical possibility.39 It is logically possible, for

instance, to raise a stone cold corpse from the dead by restarting circulation, but,

if irreversibility were essential to our concept of death, then it would follow

instead that the person supposedly raised from the dead would never have been

dead in the first place.40 Critics who insist on irreversibility as a necessary

condition of death must deal with this uncomfortable difficulty, because it does

commit them to the implausible position that it is logically impossible to raise

anyone from the dead.41

38 See Marquis, op. cit. note 4, p.28. 39 For an early argument to this effect, see: J. Cole. The Reversibility of Death. J Med Ethics 1992; 18: 26-33. For criticism, see J. Lamb. Reversibility and Death: A Reply to David J Cole. J Med Ethics 1992; 18: 31-33. 40 There may be some limits to this possibility that arise, for some philosophers, out of considerations of personal identity. Jeff McMahan has claimed, for instance, that, once the brain is destroyed, it is not possible for that person to come back to life. If it were technologically possible, for instance, to develop a new brain from that person’s own cells, the new brain would result in a new person. See J McMahan. The Metaphysics of Brain Death. Bioethics 1995; 9: 91–126. It is not clear to us that this is necessarily so. It seems to us that we might instead say that a human being whose brain is destroyed, but who had a new brain grown from that person’s own stem cells, has simply grown a new brain. Even if that person could remember nothing of their past, this would not be any different from total amnesia. But we need not resolve this disagreement, for we can imagine someone who has died before their brain has atrophied sufficiently such that, for McMahan, they could not come back. Under our current definition, including irreversibility by human action, such people are dead. These people could, logically, be brought back to life, even on McMahan’s view. 41 It would certainly be a highly unusual event if someone were raised from the dead, but it is a logically possible event – it is not like trying to think of square circles.

15

We can make these points clearer by considering a thought experiment. Suppose

technology develops dramatically, so that we can revive someone by our actions

after their circulation stops at a much later time than we are currently able to do.

Imagine, for example, that complete rigor mortis has set in to a patient, but that

we are about to test new technology that would allow us to reverse the process of

rigor mortis and restart circulation. We succeed in restarting the circulation in the

patient, for the very first time. Was this person ever dead? Or have we

discovered, with this technology, the means of bringing people back from the

dead? At the time we are first confronted with this question, the answer is that it

is an open question; we would need to decide what we should say, and society is

not compelled to decide the question one way rather than another. We could say

that we had now discovered the means of bringing people back from the dead in

limited circumstances – the ones we are imagining. Alternatively, we could say

they were still alive because circulation had not irreversibly ceased. In doing so,

we push back the point at which we consider it impossible to reverse the

cessation of circulation, thereby maintaining ‘irreversible cessation of circulation’,

but fixing a different stage at which the cessation of circulation can no longer be

reversed, a stage that would come after full rigor mortis. This would mean that

people who were considered to be dead before the technology was used would

not, under the new definition, have been dead at the time their death was

declared. But notice that, if we take this option, we preserve the irreversibility

criterion by a decision; there is nothing in the facts that dictates to us that this is

the “correct” option to choose – that we couldn’t instead opt to say that we had

discovered a way to bring people back from the dead in limited circumstances.

And if we chose this latter option, then irreversible cessation of circulatory-

16

respiratory function will definitely no longer be required as a criterion of death

(permanent cessation might, in that case, suffice).

If irreversibility were, however, essential to the concept of death, it could not be

an open question which way to go in our hypothetical case. By definition, we

would instead be discovering that these people were never dead in the first place.

In other words, with every new advance – even if we could revive circulation in a

stone cold corpse – we would always be forced to say that we had discovered that

people were, previously, not dead at the time we thought they were. We could

never opt to say that we had discovered ways of bringing people back from the

dead. For we would be discovering that, contrary to what we had believed, the

circulation of these people could be restarted, and that the cessation of

circulation was not, therefore, irreversible. But this is not, in our view, the true

position and effectively means that a resurrection from the dead is a logical

impossibility. It also means that we can never be sure when a person is dead.42

Someone who has died and opted to be cryogenically frozen, for example, would

not have really died – or at least, that is what we would be forced to say if they

could be brought back to life when technology has sufficiently advanced. Such a

person would be dead if the technology doesn’t develop, but alive if it does. But

even then we couldn’t know for sure if they were dead. For there could always be

technology, further down the track, that would enable us to revive these people

at a later time than the time at which they could currently be revived. Instead, the

better view is that, in our hypothetical case, it would be open to us to say either

42 Until, perhaps, the person’s brain has completely disintegrated or decayed away. See note 40 and our remarks on McMahan’s view. As we remark in that footnote, if we rejected McMahan’s view and believed that a new brain would not result in a different person, then even this restriction would have to be abandoned. This is not a comfortable consequence for those who, like Marquis, insist that “death is irreversible”.

17

that we have discovered the means to bring certain people back from the dead, or

to say that we have discovered that these people are not dead, contrary to

popular belief, and we would need to make a decision about what we are going to

say.

Once it is accepted that changes in technology can impel us into a position from

which we have some latitude in how we apply those concepts that the changes

challenge, we can actually go a step further. We can also see how we might apply

a concept both in one way and in another at the same time, depending on the

category of patient in question and our interests in categorising them in one way

or another. Consider again our hypothetical case and the new technology we now

have, to revive some of the bodies that have suffered rigor mortis and are cold

and blue. Let us imagine that, in the wake of the successful use of this technology,

society adopted the practice of saying that people who enter rigor mortis are no

longer considered dead at that stage if there is the option of using the new

technology to reverse rigor mortis and restart circulation; this is the path taken,

rather than saying that we had discovered a way of bringing people back to life

from the dead. In that case, we would withhold judgment about whether these

people are dead until we actually try to revive them with the technology, and only

if we try and fail would we then declare death.

Let us next imagine, continuing our thought experiment, that some of those who

could be revived would not recover sufficient brain and other functions to make it

appropriate to revive them. In these cases, pragmatic considerations might lead

us to say that these people should continue to be classified as dead once rigor

mortis begins. We might do so in order to avoid delays in the administration of

18

wills, or in required autopsies or coronial inquests, or to respect some cultural

requirements concerning early burial. We might reason as follows: ‘Before the

invention of this technology, these people would have been classified as dead.

Although we could still in principle revive them with the new technology, the

function to which they could be restored makes reviving them inappropriate. And

we will in many cases need to be able to perform autopsies and inquests on many

who fall into this category, or bury some of them early. So let us continue to treat

those on whom it is not appropriate to use this technology as dead. After all, we

had no problem treating these people as dead in the past – it is only because we

now have this new technology that an issue arises but, since we are not going to

use this technology on these people, we can continue to classify them as dead at

the time they would have been so classified before the advent of this technology.

Only those on whom we will use the technology should be classified as alive, and

we should classify these people as alive until we know that the technology

definitely will not work on them.’

In adopting this way of proceeding, then, we would have a two-tier criterion of

death. We would refuse to call dead those people upon whom we intend to use

the technology unless and until, having used the technology, we failed to revive

them, or unless and until we know that any effort to revive them would now fail.

Only from that point would we declare these people ‘dead’. By contrast, in the

case of those on whom it is not appropriate to use the technology at all, we would

continue to declare them dead at the time and in accordance with the practice

that was current before the advent of this new technology.

19

We cannot see any problem, either logical or ethical, with this way of proceeding.

Some readers will by now have realized where we are taking this argument: the

same point applies to the ‘technology’ we discovered of using CPR and ECMO, and

the above hypothetical is an allegory of current practice in distinguishing between

patients on whom CPR is appropriate, and patients on whom it is not. So, let us

now expressly apply this analogy to DNAR cases (such as our frail old lady

introduced above) and a subclass of these, the DCDD cases. First, we should begin

by winding the clock back a century and a half to the time when Eugène Bouchut

first proposed the use of the stethoscope to diagnose death, that is, prior to the

advent of CPR as we now know and understand it. As noted when we discussed

Bouchut briefly above, patients were diagnosed as dead, using this device, after

five minutes. We contend that it makes sense, just as with our hypothetical case

above, to decide to continue to classify those people who were dead before the

advent of CPR as dead post CPR, just in those cases where CPR is inappropriate

and so does not apply. We do not see any reason to consider such people to be

alive when they would not have been so considered before. Indeed, if we did now

consider them to be alive, we would be defining their death by reference to

possible actions that are inapplicable to them, and this, to our minds, would not

make any sense. It is because this does not make sense that we avoid indexing the

death of a 97 year old frail lady with a DNAR order, to the time at which she could

not possibly be revived via CPR (assuming, contrary to what we have argued, that

there is a precisely specifiable time). The point of no return if we attempt CPR is

irrelevant with this patient, given we are not attempting CPR. In such cases, to

which CPR is not applicable at all, we should only be concerned with the point of

no return as it relates to autoresuscitation.

20

There could, no doubt, be reasons for choosing the option of classifying everyone

as dead, whether CPR is appropriate or not, by reference to the point of no return

with attempted CPR. But our point is that it really is a decision, a choice, that we

are dealing with here and, once that point is conceded, it is open to us to make a

different choice – the only considerations being pragmatic rather than

“ontological”, as our critics would put it. This point is further strengthened by the

fact that, even in cases where the use of technology is appropriate, we still

distinguish between the different technologies we could use. For example, in

many cases, it will be appropriate to attempt CPR, but not appropriate to use

ECMO technology. When we try CPR and fail, we declare death. Our medical

practice is not to think: well, this patient is still not dead because if we were using

ECMO, we might have been able to restart circulation at a later time even than

this. If, as we currently do, we distinguish patients for whom ECMO is appropriate

from patients for whom CPR is appropriate, and accordingly declare death at the

different time-frames applicable with the use and failure of these technologies,

we can also distinguish between patients for whom neither CPR nor ECMO is

appropriate and those for whom one or both of them are.43

We contend that these remarks should help us see that the requirement of

irreversibility, as understood by reference to resuscitative measures we could

take when the patient is otherwise unresponsive, is actually best understood as a

norm. This norm prescribes that, in usual circumstances, anything that can be

done to bring somebody back to life should be done. In the absence of the need

to engage measures to resuscitate, we can rely on permanence, as we always

have (recall, irreversibility appears only in the 20th century). We suggested above

43 We draw on McGee and Gardiner. op. cit. note 17 in making this point.

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that, in our hypothetical case, only those on whom we will use the technology

should be classified as alive, and we should classify these people as alive until we

know that the technology definitely will not work on them. This statement

expresses a norm about how we should classify the patient. It says that, where it

is appropriate to attempt to revive the patient with the new technology, we

should not consider that patient as dead until we know they cannot be revived,

either by trying or by waiting until the point at which we know the technology will

be unsuccessful (too much putrefaction, for example). This is a rule for how we

should approach these patients, and for how we should apply the word ‘death’.

Once we see this, we can see that such a norm might not be appropriate for every

case. In particular, where there are patients on whom it is not appropriate to use

the technology, we can decide to adopt a different rule, one that does not require

us to wait until the time at which use of the technology would be futile has

passed. This view also has the advantage that it avoids saying that people who

are currently dead may not be dead under Marquis’s ‘death is irreversible’ dictum,

if new technology meant that we could revive people even from the grave. For if

we concluded that it would be inappropriate to use the technology, we could

continue to classify such people as dead, thereby relying on permanence as we

have defined it in this paper.

2.2. Is irreversibility essential to the possession of any other property?

There are other grounds for regarding irreversibility as a normative requirement

only, rather than a putatively ontological one. Consider any other natural

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property.44 In no case is irreversible possession of the property a prerequisite for

the application of the predicate describing the property. We could, of course,

make it a rule that nobody shall be called ‘disabled’ unless they are irreversibly so

– the chance of restoration of full health here precluding the application of the

term in favour of some other predicate instead. Or we could decide that nothing

shall be called ‘red’ unless it cannot change colour. And we can imagine, at least in

the case of disability, reasons for adopting such a convention. But a convention it

most certainly would be. Consider the word ‘broken’.45 Must something be

incapable of being mended before we use the word ‘broken’? No. The very

concept of mending implies that the thing mended is broken or otherwise

dysfunctional in some way, so it is not necessary to the state of being broken for

the state to be irreversible, for otherwise ‘mending’ would make no sense. Once

something is mended, it is no longer broken. But that does not mean it never was

broken. We could, however, decide to adopt a new convention such that nothing

shall be called broken unless it cannot be mended.46

The point of these examples is to illustrate our claim that there does not seem to

be any other property which requires its possession to be irreversible before we

can justifiably say of the thing which possesses the property that it does indeed

possess it. If we accept that death is a state, we cannot think of any other state

that an entity can conceivably be in where, in order to be said truly to be in that

44 As used here, ‘natural’ merely refers to properties possessed by an entity’s nature (it is in human nature to breathe and to need to eat), though we do need to restrict our claim to such properties. 45 We owe this suggestion to an anonymous reviewer. We thank the reviewer for pressing us to consider this example. 46 What about ‘destroyed’? Does the concept of destruction imply the irreversibility of the destruction? No. It is logically possible to reconstruct something that has been destroyed. What about ‘extinct? Suppose scientists create a real life Jurassic Park, and successfully bring back the Woolly Mammoth and the Brontosaurus. Does this mean that dinosaurs never became extinct? The better answer seems to be no.

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state, it must irreversibly be in that state.47 And that suggests that, in fact, the

requirement of irreversibility is instead a norm, a rule about what must first be

satisfied before we are willing to apply the predicate ‘death’ to a human being. It

makes sense, in the light of worries about premature burial and the importance of

life to us, to adopt the rule that nobody should be declared dead until all that is

conceivable has been done to ensure that they are, that is, that their state of

lifelessness is permanent.48 In the case of death, we are contending, we have

forgotten that the irreversibility requirement is simply a norm embodying the rule

that we should not give up prematurely on people who appear to have died.

2.3 A possible objection

We have argued above that irreversibility is not an essential precondition to the

correct application of the word ‘dead’ to human beings – we can choose to make

it so, but that would be a decision made by human beings. If it were otherwise,

resurrection from the dead would be a logical impossibility, but it is not.

One objection to our claims is that ‘irreversibility’ is only tied to the state of

current technology and is not in any way a prediction about whether someone

might not be revivable with technology in the future, let alone about whether

someone could be raised from the dead. When we say that someone’s heart has

irreversibly ceased, these objectors might claim, we are only saying that it cannot

47 Perhaps if food is cooked, we can’t conceive of bringing the food back to a state of being uncooked. But it is not as though we have adopted an express requirement that food must be irreversibly cooked before we can consider it to be cooked – but we have done so in the case of death, in the 20th Century. 48 It is noteworthy that some laypeople speak of people who have suffered a cardiac arrest as having been dead and then brought back to life. This way of speaking would mean that not even permanence is a prerequisite for this use of ‘death’ and ‘dead’. We do not go so far as these laypeople, but the point does illustrate that there is room for limited variation in the concept of death. For discussion, see McGee and Gardiner. op. cit. note 17.

24

be restarted given current technology and resuscitation techniques, not that it

could never be restarted by the technology that could apply several centuries into

the future. In this way, it might be said, the claim that irreversibility is part of the

concept of death is different from the claim that not being square is part of the

concept of being a circle, and the claim (that it is part of the concept of death)

would neither apply to resuscitations that could occur using different technology,

nor to ‘a resurrection’ which, presumably, if it is to be consistent with science, will

ultimately be explicable scientifically even if we could not explain it at first. These

possibilities are not ruled out by claiming that death is irreversible.

This objection must still acknowledge that ‘irreversibility’ was only introduced into

the concept of death in the 20th century, and is therefore intrinsically tied to the

resuscitative techniques that were first introduced in that century. It must

thereby acknowledge that the requirement of irreversibility was introduced by a

decision. A further decision is then made, reflecting the position taken in this

objection, to restrict its scope to avoid certain absurd consequences discussed

above. But if these points are acknowledged, we see no difference between such

decisions to introduce and restrict the scope of irreversibility, and any decision to

rely on permanence. Although this notion of irreversibility as tied to current

technology is not a rule about what is ethically appropriate to be done to a

patient, it is a rule about how ‘irreversible’ should be used, or how the concept

should be applied (namely, to what is possible given currently technology), and so

is normative in this wider sense. It is therefore in that respect no different from

the rule about permanence we discussed above, whereby ‘irreversible by human

action’ is stipulated to apply only to those patients for whom such action is

actually appropriate, and not to patients with a DNAR order.

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Indeed, we see no logical basis for distinguishing this restricted notion of

irreversibility from what we are calling permanence. This is because there is no

reason to confine the point about irreversibility only to time, and to whether the

technology has been invented, as opposed to whether the technology exists but is

currently unavailable. For example, if today we say that somebody has died,

whose heart stops in a third world country where no ECMO technology is

available (but who would have been an ECMO candidate if she were in a Western

hospital), we are doing so because it is effectively meaningless to insist that this

person cannot be declared dead until the time at which ECMO would no longer

work on them. ECMO in these countries is simply not available, and may as well

not even have been invented. It would be just as meaningless, in this case, to wait

before declaring death, as it would be to refuse to understand ‘irreversible’ as

meaning ‘irreversible, given current technology’ – as the proponents of this

objection would be doing.

It should be noted that if ‘irreversible’ is understood as ‘irreversible, given current

technology’, the concept of death will still change with every technological

advance that extends the possibilities of reviving someone. On this view, the

concept of death evolves so that what counts as “irreversible” changes with

advances in medicine, and is accordingly defined by different states, depending on

the technology existing at the time death is declared. On this approach, someone

declared dead under technology that was current at the time really would have

been dead, because what counted as ‘irreversible’ (and therefore as ‘dead’) was

defined by reference to what the technology could do at that time. Whereas in

the future under better technology, such a person would not be declared dead at

26

that exact same time, but at a later time, because what counts as ‘irreversible’ is

defined by reference to the new technology. In other words, ‘dead’ has a different

meaning, depending on the paradigms of irreversibility that are accepted by

medical practice. But then if we can evolve what conditions or states count as

irreversible with advances in medicine across time, we can likewise choose among

different conditions at the same time – and so, again, we can justify a two-tiered

criterion of death, depending on the category of patient. This point can be

illustrated in the most dramatic fashion, by considering recent practices in heart

transplantation.

3. Recent developments in heart transplantation

DCDD initially developed to facilitate the procurement of kidneys for

transplantation but its use has rapidly been expanded and now enables retrieval

of the lung, liver, pancreas, and hearts. One particularly controversial practice

which is currently used in the UK in heart DCDD transplantation involves starting

ECMO in the body of the donor after the declaration of death. Profusion is

regionally isolated to all parts of the body except the brain and upper limbs by

virtue of a surgical cross clamp which is placed across the arterial vessels

emerging from the arch of the aorta. Once ECMO circulation commences, the

heart will actually begin to contract within the donor’s body within a few minutes.

This permits detailed assessment of function, optimisation if required and

removal with proposed less warm ischaemic damage. This practice has been

defended as respecting permanence because permanence still applies to cerebral

circulation which remains ceased (provided the clamp is effective in isolating

cerebral circulation). However, under this technique circulation restarts within the

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rest of the body and the heart is beating. Given the current definition of death in

UDDA jurisdictions, as the irreversible cessation of circulatory-respiratory function,

this practice is contrary to the definition of death and therefore violates the dead

donor rule.49 The only way this conclusion could be avoided would be to redefine

death so that it meant, for example, irreversible (permanent) cessation of

circulation in the brain.

We believe that, in principle, this could be done. Given, as we have argued, that

even appeals to irreversibility are based on decisions made in accordance with

human interests, it is possible to adopt new paradigms of irreversibility, including

the paradigm that cessation of circulation in the brain has ceased.

This would represent precisely the kind of transition we have just illustrated in our

previous remarks concerning how, through discoveries and technological

breakthroughs, our paradigms of what counts as “irreversible cessation of

circulation” can shift. Aside from questions concerning the shift from the

circulation in the body to circulation in the brain -- which would require a new

statutory definition of death -- what is particularly controversial about this

practice is the use of the clamp. For this seems to be an active intervention which

ensures permanence by preventing circulation from reaching the brain. Is this not,

then, effectively a case of killing? Given the analysis in the previous sections of

this paper, the answer would have to be no. The reason for this is that, as we have

claimed, in patients whom it is inappropriate to resuscitate, death means the

impossibility of auto-resuscitation. Once auto-resuscitation is no longer possible,

49 It is not contrary to law in the UK, which does not have a statutory definition like the UDDA and the Statutes modeled on the UDDA in Australia.

28

if we can procure organs and desist from resuscitating the patient, we can by that

token use the clamp. The only requirement, as we have noted, is that we would

need to redefine "permanent cessation of circulation" to mean "permanent

cessation of circulation in the brain". But if legislation were introduced to redefine

this limb of the definition of death in the UDDA, we can't see any problem with

this practice. It would simply be another shift in what counts as "irreversible".

True, it would be more than simply a shift in the point at which cessation of

circulation in the body is no longer reversible. We would now be counting

circulation in the brain as the ultimate form of circulation that must be irreversible

(that is, permanently ceased). But it seems to us that this would in principle be

legitimate in patients where the requirement is only that auto-resuscitation is no

longer possible.

The ultimate reason that it is inappropriate to restart circulation in these patients

is simply that it is inappropriate to revive them. A decision has been taken not to

revive the patient. If this condition can be met by preventing circulation from

restarting in the brain, then we see no barrier to moving to such a redefinition of

death.

CONCLUSION: A NOTE OF CAUTION

We want, however, to finish with a warning that stems from some observations

by Ari Joffe et al.50 One pragmatic reason to reject the adoption of different

standards of death, depending on context, is this. There may be a conflict of

interest between the interests of the donor and those of the recipient. If, for

example, the doctor who makes a purportedly independent decision to withdraw

50 Joffe et al, op.cit. note 4.

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treatment and allow a patient to die, is the same doctor who is caring for the

different patient requiring the organ, then clearly a decision to allow the first

patient to die may be contaminated by considerations of the interests of the

recipient. Joffe et al claim that the doctor discussing withdrawal of life-support

will certainly be aware of the future option of DCDD, and may not be able to

prevent this from influencing his or her opinion.51 We can loosen the pressure of

this objection to an extent by recalling how many of the cases in question are

non-DCDD cases where such a conflict does not arise -- eg, the case of the 97 year

old frail lady with the DNAR order. But, on our own logic, the extra risks involved

in those cases where a conflict of interest could indeed exist might mean that we

ought to treat those particular cases differently again. In other words, here our

arguments may in fact lend support to the claim that we should choose not to

classify DCDD patients as dead even if we can classify the 97 year old frail lady as

dead.

In most DCDD programmes, many steps have been taken to avoid such a conflict

of interest.52 There are requirements that the withdrawal team is different from

the transplant team, and structures have been put in place to remove or reduce

the risk of such conflicts of interest arising.53 The fundamental issue is whether we

can regard these measures to be effective in removing the perceived conflict of

51 Joffe et al, op.cit. note 4, p. 26. For further discussion of the conflict of interest problem, see A McGee and B White. Is Providing Elective Ventilation in the Best Interests of Potential Donors? J Med Ethics 2013; 39: 135-138. 52 Department of Health (Welsh Assembly Government). Legal issues relevant to non-heartbeating organ donation. 2009. http://www.dh.gov.uk/en/ Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_108825 (Search: 12962) (accessed Dec 2015), para 2.1; UK Donation Ethics Committee. An ethical framework for controlled donation after circulatory death. London: Academy of Medical Royal Colleges, 2011. http://jme.bmj.com.ezp01.library.qut.edu.au/content/39/3/135.full.pdf+html (accessed Dec 2015) section 1.6. 53 Ibid.

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interest or not. If we cannot regard them as effective, then that would be a reason

for rejecting the decision to adopt these different standards of declaring death --

at least in the case of DCDD patients. Whether it is rational to apply different

standards of death, depending on whether CPR is or is not appropriate, therefore

boils down ultimately to whether we can be sufficiently confident that the

interests of the donor are not being overridden by the interests of the recipient.

We strongly suspect that it is in fact considerations of this kind that ultimately

drive the critics we have discussed to reject the claim that it is rational to call

these people dead. And we believe that it is entirely appropriate to raise concerns

of this kind and to seek to address them in policy and legislation. It is not, in the

end, the definition of death that is in question, but rather the fundamental

practices within which that concept has its life.