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global health governance fall 2010 667

The 1981 Uniform Determination of Death Act(UDDA)1states:

An individual that has sustained either (1) irrevers-ible cessation of circulatory and respiratory func-tions, or (2) irreversible cessation of all functions ofthe entire brain, including the brain stem, is dead.

The whole-brain concept of death, appealed to in theUDDA, has been roundly criticized for many years.However, despite a great deal of legitimate criticism inacademic circles no real clinical or legislative changes

have come about. At least one reason for this inertia isaptly stated by James Bernat, one of the principal andfounding proponents of the brain death doctrine: Inthe real world of public policy on biological issues, wemust frequently make compromises or approxima-tions to achieve acceptable practices and laws.2Whileacknowledging that the brain death doctrine is notflawless and that he and other proponents have beenunable to address all valid criticisms, Bernat nonethe-less maintains that the brain death doctrine is opti-mal public policy. The brain death doctrine providessuccessful public policy[because it] is intuitivelyacceptable and maintains public confidence in phy-sicians accuracy in death determination and in theintegrity of the organ procurement enterprise.3

In this paper I challenge Bernats claim. Policy thatrelies on the whole-brain concept of death as its foun-dation suffers from serious moral failings and so oughtto be abandoned.

On the Diverse Concepts of DeathThe concept of death is not a unitary one, and it isimportant to clarify and distinguish various sensesof the word death. Rhodes, for example, notes thefollowing:

While it may not always have been so, today theword death has three distinct senses. Deathis a rough marker for a complex biological event.Death is also an important marker in the social/legal/political realm. And death indicates distinc-tions in the moral realm.4

This is a good start, but more precision is required.We begin with the commonsense concept. Death isthe cessation of life, and it is realized by all kinds ofthings. The family pet, the insect in the backyard, anda human family member can all die or become dead.The commonsense notion of death is a non-technicalconcept, and dead and its cognates are words that weall use reasonably correctly. As a non-technical term,the colloquial death probably includes most or all ofthe following concepts, and may or may not distin-guish among them, although some imprecise form ofthe biological concept lies at the core of the common-sense concept.

The biological concept of death involves the ces-sation of biological functioning; it is a technical sci-entific concept. The standard elucidation of the bio-logical concept of death is as follows. We begin witha tripartite distinction between the conceptual defini-tion of death, the physiological criteria that must besatisfied for biological death to have occurred, and thediagnostic tests that are used to determine whetherthe physiological criteria have been satisfied. Concep-tually, (biological) death [is] the permanent cessa-

Death, Brain Death, and the Limits ofScience:Why the Whole-Brain Concept

of Death Is a Flawed Public PolicyMike Nair-Collins

Mike Nair-Collins, Ph.D., is in the Clinical Trials SupportDivision at Nathan Kline Institute for Psychiatric Research.


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tion of the functioning of the organism as a whole. 5This notion of biological death involves the loss ofthe integrative unity of the functioning of the organ-ism as a whole, where functioning is taken to mean,at least partially,6the resistance of entropy and the

maintenance of internal homeostasis. When the vari-ous metabolic processes cease to work together in anintegrated fashion in their resistance of entropy, thedying process has ceased and the event of death hasoccurred.

The physiological criterion for biological death isthe state known as brain death. This is the state in

which all functions of the brain have ceased irrevers-ibly. Bernat, Culver, and Gert have made the empiricalclaim that this criterion [of brain death]is perfectly correlated with the permanentcessation of functioning of the organism as

whole.7The diagnostic tests used to deter-

mine whether brain death has occurredinvolve unresponsiveness, apnea, and lackof cranial nerve reflexes.

Divergent from the biological conceptis the personhood concept of death, whichis the event in which the person ceases toexist. This notion of death is relative to thatof a person. One insight into the nature ofpersons involves a focus on psychologicalstates and their continuity. Persons are subjects thatthink or feel; they have experiences. Being a person,on this construal, is to be a self, the subject that hasrelatively continuous psychological states. When that

self, the experiencing subject, ceases to exist, the per-son has died. This notion does not make agency a nec-essary component of what it is to be a person.

By contrast, many conceive of a person as a moralagent. Agency is usually understood in the Kantiansense in which an individual is self-governed (orautonomous), can act in accordance with her owndirectives, has and can give reasons for her behav-ior, and most importantly, is thus able to be heldresponsible for her actions. While all moral agentsmust be subjects of experience and thus persons inthe psychological sense, not all persons in the psy-chological sense are moral agents. For example, anindividual that suffers from severe dementia can still

be a person in the psychological sense: she is still thesubject of experiences, centered on an experiencingself. She still feels pain, for example. By contrast, ifshe has lost the ability to have and give reasons, toact in accordance with her own directives, and thus,cannot be held responsible, then she is no longer amoral agent, and therefore the (moral agency con-strual of the) person has ceased to exist. For a differ-ent example, an infant or very small child is not yet

a person in the agency sense, but is a person in thepsychological sense.

To maintain clarity of word use, I will henceforthuse person to refer solely to the psychological, non-moral concept of personhood. We distinguish this

from the moral agency concept by using moral agentor agent to refer to the latter. This is not an endorse-ment of either concept of a person; we simply needclear and unambiguous language.

Related to the moral agent concept of death, thereis the moral patient concept of death. While a moralagent is one who is autonomous and morally respon-sible for her behavior, a moral patientneed not be anagent, but nonetheless is a member of the moral com-

munity and thus deserving of moral consideration andprotection.8The moral patient concept of death refersto the event in which an individual loses her stand-ing as a member of the moral community, and hence

is no longer granted the typical moral protectionsafforded to such members. For example, a biologicallyliving human is afforded certain protections, suchas the prohibition of autopsies, burial, or cremation

while still biologically living, as a result of her mem-bership in the moral community. But upon biologi-cal death, these protections no longer apply; crema-tion, burial, and autopsy become morally acceptable.Thus, the severely demented individual is no longer amoral agent, hence, the death of the agenthas alreadyoccurred, but she is still a moral patient, deserving ofmoral consideration.

Finally, there is the legal concept of death. This is

the concept that gets explicitly legislatively defined inorder to serve socio-legal purposes. Currently, thereis widespread, international consensus on what thatlegal definition should be, and it is defined in termsof whole-brain death or brainstem death, essentiallyfollowing the lead of the UDDA quoted at the outsetof this paper. The central argument of this article con-cerns this concept. Bernat claims that the whole-brainconcept of death remains optimum public policy, andI challenge that claim. The real disagreement, for the

James Bernat claims that the whole-brain

concept of death remains optimum publicpolicy, and I challenge that claim. The realdisagreement, for the purpose of this paper, isover how we oughtto legally define the worddeath.


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purpose of this paper, is over how we oughtto legallydefine the word death.

Scientific Realism and Biological DeathIt may not always be apparent, but much of the brain

death debate relies on the answer to a far more gen-eral question: How are our words or concepts relatedto the world? Do we construct reality with our con-cepts, in such a way that the world is somehow depen-dent on our minds, thoughts, or concepts? Or should

we say that the world is what it is, independent of whathumans happen to say or think about it? Is the worldout there to be discovered, or is reality just a psycho-social construct?

The theoretical commitments that go with variousanswers to these fundamental metaphysical questionsinform the brain death debate in an important way. If

you are of the scientific realist persuasion, then biolog-

ical death is a natural phenomenon, just like carbonmolecules and electromagnetic fields, and its nature isto be discovered, not stipulated. If, on the other hand,

you are of the non-realistpersuasion, then we do notproperly discover what biological death is, but we(somehow) decide it, construct it, or otherwise havecreative powers with regard to its nature, with regardto what it is.

The underlying metaphysical question is fundamen-tal and encompassing, and I surely cannot do it justicein this concise section. Instead, I will briefly mentionsome reasons why (1) we ought to accept realism, and(2) as a matter of practice, everyone does accept it,

regardless of their explicit theoretical commitments.There are many different ways of thinking about

realism, but for our purposes the basic idea is simple,and it is commonsense: the world is what it is, inde-pendent of anyones thoughts about it. When scientistsinvestigate the world, they do not construct it or agreethat it should be so, thus making it so. Rather, scien-tists discover the world, and our scientific theories areeither true or false depending on whether or not theycorrespond to reality as it is.

The standard argument for scientific realism isknown as the no-miracleargument: our best scientifictheories are remarkably successful in making predic-tions and allowing for the manipulation of manifestphenomena. Our engineers and physicians use thetheories that scientists give them to manipulate realityin very reliable ways, to build bridges and airplanes,to treat diseases, etc. The only explanation for thisremarkable success, short of making it a miracle, isthat those theories at least approximate the (literal)truth. That is, our best theories say something aboutthe world, and the world really is as they say, at least

for the most part. For this reason, we ought to con-clude that scientific realism is true.9

In addition to the positive argument for scientificrealism, we should also note that, every time we getonto an airplane, or into an automobile, we trust our

lives to the truth of various scientific theories. If wedid not at least implicitly believe that various theoriesabout friction, thermodynamics, aerodynamics, andso forth involved more than mere psychosocial con-structions, we would not so readily put our lives in thehands of the engineers who designed these machines,

based on scientific theories. Thus, we all implicitlyaccept scientific realism, which can be seen throughour actions. Finally, we should keep in mind thatrealism, in its various forms, is just plain common-sense, and the various forms of non-realism are so farremoved from commonsense that it becomes difficultto even charitably interpret what they say. How could

we construct the world with our minds?I hope that the above discussion seems trivial, and

that it is obvious that there is a world outside of ourminds whose nature is independent of our concepts.10However, once we have accepted the basic, common-sense notion of realism, some important implicationsfollow. First, life is a natural, biological phenomenon,and thus so is biological death. It follows from this that

we cannot decide on the nature of biological death,thereby making it whatever we agree that it is; it issomething whose nature is to be discovered, not stipu-lated. It also follows from this that it is possible to saysomething that is not true about biological death: a

group of physicians, or group of legislators, or indeedan entire community, can all be wrong about what bio-logical death is, just as they can be wrong about, say,

whether combustion involves releasing phlogiston orconsuming oxygen.

The second implication is that biological death is notthe sort of thing that occurs by fiat. When a physiciandeclares a patient dead, the patient does not therebybecomebiologically dead. Being married, by contrast,is a state that gets instantiated when and only when aperson that plays the appropriate social role, such as a

judge or other officiant, decrees it. Being biologicallyalive is not that kind of state. I cannot be made to bealive because a legislator or physician decrees it if Iam dead; similarly, I cannot be made dead because alegislator or physician has decreed it.

There are a couple of important points in need ofclarification. On the one hand, the world is what it isregardless of what anyone says or thinks about it, andthat world includes biological organisms and biologi-cal states, whose natures are to be discovered. On theother hand, while the world is independent of us, themeanings of our terms are not. For example, a physi-


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cian cannot cure cancer by declaring, by fiat, that herpatient no longer has it. However, what does cancerrefer to? Should we say that a patient has cancer whenshe has a few pre-cancerous cells? How many? Whatkind? The fact is, biological concepts are messy. The

boundaries of the extensions of those concepts arevague, usually indeterminate, and in an importantsense, they are arbitrary. So perhaps my apparentlyobvious claim that the world is what it is and we donot construct it, is misguided. In at least one impor-tant sense, it might be argued that we do construct

biological reality, because there is an element of choiceinvolved in whether cancer means thisor that.11

This objection confuses the social conventionsinvolved in determining the meanings and extensionsof our terms, with the world to which those termsrefer. The meanings of our public language terms aredependent on us (to some extent at least), so if, as a

community of linguistic agents, we all agree to use cer-tain words in a new way, we can certainly change themeanings of those terms. But changing the meaningsof terms does not change the world to which thoseterms refer. For example, if we all agree that SantaClaus refers to the jar of peanut butter in my cabinet,then that is what Santa Claus would mean. However,that would not make Santa Claus, that is, the jolly oldman with a white beard and red suit, exist. All it woulddo is change what Santa Claus refers to. But the orig-inal question about the existence of a man who lives atthe North Pole was never a question about the mean-ing of an arbitrary group of phonemes, nor was it a

question about a jar of peanut butter. It was a questionabout a jolly old man at the North Pole.

By comparison, once we accept scientific realism,we accept that at least one component of the questionconfronting us is about the nature of biological death.It is not a question about the word death. We canmake any group of sounds mean whatever we want,and we can even go so far as to legislate it. But what

we cannot do is alter the underlying reality; we cannotalter biological death itself, by legislating on what the

word death means. All that we can do is change orclarify the meaning of a word, and that is distinct fromdiscovering the nature of what that word refers to.

A second, related worry, deals with the possibilityof vague cases.12 Merely accepting scientific realismand recognizing the important distinction betweenour thoughts or language and the world that our con-cepts and terms refer to, does not imply that for everyindividual thing there is an unambiguous and scien-tifically correct answer of whether that thing is reallyalive or dead. If there are such vague cases, it mightfollow that brain dead individuals fall into the vague-ness category, in which case the purpose for which

we use the concept of death might become relevant,thereby interlinking the underlying biological reality

with social purposes, and blurring the strict line thatI seek to draw between the world as it is and the lan-guage and concepts that we use to describe it.

The possibility of vague intermediate cases, asmentioned above, is compatible with the basic sci-entific realism thesis and with the important distinc-tion between the mind-independent world and ourlanguage. The only sense in which the possibility of

vagueness would be threatening is if it turns out thatbrain dead individuals in fact fall into the vaguenesscategory, inhabiting a place somewhere between beingalive and dead. But establishing that thesis takes sepa-rate argumentation, which is not provided by the merepossibility of vagueness. Additionally, I will shortlydemonstrate that the biological status of brain deadindividuals is not at all vague.

To be clear then, all I seek to establish at this pointis that biological death is a matter to be discovered,not stipulated. Second, whatever biological death is,it does not occur in virtue of a person who plays theappropriate social role declaring it to be so, the waymarriage does. Third, physicians and others can beright or wrong about whether an individual is biologi-cally dead, but this does not imply that for every pos-sible case at every possible moment of time, there is aright or wrong answer. The mere possibility of vague-ness does not threaten any of these basic points.

Here is a related way of making the same basicpoint, which also serves to illustrate the prevalence

of the unfortunate conflation of the meanings ofterms with the world to which those terms refer. Adefinition is an explanation of the meaning of some-thing. The sorts of things that get defined, however,are terms in a language. For example, we can definechair, but we cannot define a chair.We can describea chair, we can sit on it or break it (etc.), but chairs, assuch, do not have definitions because they are not thesorts of things that have meaning. Similarly, we candefine death (the word), but not death (the eventor phenomenon). Death, the biological event, can beexplained, described, prevented, or caused, but it can-not be defined because it is not the sort of thing thathas a meaning in the way that words do. Thus thephrases the definition of death and defining deathare senseless.

This may seem like academic pedantry, but it isrelevant and important. By confusing death, the

word to be defined, with death, the phenomenon tobe explained, we bring properties of definitions tobear in our attempts to explain the mind-independentphenomenon. Namely, definitions are dependent onuse by a community of linguistic agents, and open to


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revision and stipulation. Biological phenomena them-selves are not dependent on use by a linguistic com-munity nor are they open to revision or stipulation.Instead, they bear discovery, description, and expla-nation. This confusion is widespread, but here are two

important examples. Bernat et al. title their seminalpaper, On the Definition and Criterion of Death, 13and the Presidents Commission for the Study of Ethi-cal Problems in Medicine and Biomedical and Biobe-havioral Research title their work Defining Death.14Both of these titles evince the same underlying confu-sion between metaphysics and semantics: death, thephenomenon, is to be discovered and explained, notdefined or stipulated. It is only the word death that

bears definition. But, with respect to biological death,it is not primarily a (mind-dependent) definition that

we are after; it is a description and explanation of themind-independent biological phenomenon.

A final clarification: just as there is a distinctionbetween the social conventionality of the meanings ofour terms and the world to which those terms refer,there is also a distinction between the events or prop-erties in the world, and our epistemic access to thoseevents and properties. Biological death is the eventthat separates the living (or dying) process from theprocess of increasing entropy. However, even assum-ing that this is the best theory of biological death andthus that we ought to accept it, this does not implythat physicians will have epistemic access to whendeath occurred. Instead, what physicians can do isdetermine (after the fact) that the event has indeed

occurred.Whether physicians can ever, even in principle, dis-

cover whenthe process of entropy reversal occurs, isirrelevant to the nature of biological death. Biologi-cal death is what it is, and nothing about its natureis implied by our epistemic access to it. Just as we donot construct the reality of death by deciding on itsnature, we also do not construct the reality of death asa result of what we can know about it. Physicians arequite good at determining thatbiological death hasoccurred, and this is enough for our purposes.

Brain Death Is Not Biological DeathThe claim that brain death is not biological death has

been ably defended in many places. Here I only out-line the strongest argument in its defense.15As Bernat,Culver, and Gert argued in their 1981 article, we shouldconsider the conceptual definition of death to be thepermanent cessation of the functioning of the organ-ism as a whole. The notion of biological functioningof the organism as a whole has been clarified (by Kor-ein and others17) in terms of thermodynamics: living

biological organisms are localized pockets of entropy-

resistance. In their homeostatic maintenance of vari-ous physiological factors, living biological organismsresist thermal and chemical equilibrium with theirenvironment. When this process ceases irreversibly,the organism has died and the entropic process takes

over.The claim that the permanent cessation of all func-tions of the brain (i.e., brain death) is the physiologicalcriterion for biological death is a simple and elegantone, and, fortunately, it is also an empirically testableclaim. Bernat, Culver, and Gert make the followingclaim, which I quote again for its importance: thiscriterion [of brain death] is perfectly correlated withthe permanent cessation of functioning of the organ-ism as whole.18Let us call this H (for the brain deathhypothesis). Using our tried-and-true scientific meth-odology, if H is true, we should expect to observe thefollowing (which I will call O for observable implica-

tion): whenever an individual suffers permanent lossof all brain function, that individual should sufferpermanent cessation of functioning of the organismas a whole (alternatively, the localized pocket of anti-entropy should cease to exist, and the entropic processshould take over).

As it turns out, we do not always observe the per-manent cessation of functioning of the organism as a

whole upon loss of all brain function; or, the localizedpocket of anti-entropy does not cease to exist whenthe brain ceases to function. Specifically, in brain deadindividuals, the following homeostasis-maintainingfunctions have been observed: cellular respiration,

nutrition, wound healing, febrile response to infec-tion, and the elimination, detoxification, and recyclingof waste.19Each of these homeostatic functions serveto resist entropy for the organism as a whole, and,although they are typically modulated by the brain in ahealthy individual, nonetheless they can and do occurin the absence of any brain function.

Bernat has replied that many of Shewmons chron-ically brain dead patients (from whom I draw theexamples above) were not in fact brain dead; they

were simply misdiagnosed.20If this were the case, thenShewmons observations would not count as discon-firming H. However, we do not need any of Shewmonschronically brain dead patients to see that O is false.Brain dead patients can maintain spontaneous circu-lation, gas exchange at the alveoli, and cellular respi-ration. These processes serve to stave off entropy; theyare homeostasis-maintaining functions of the organ-ism as a whole. Thus, not only do we fail to observethat O; rather, we observe that not-O. It follows thatH is false. The empirical hypothesis H, the brain deathhypothesis, claims that the permanent cessation of thefunctioning of the organism as a whole is perfectly


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correlated with the permanent cessation of all brainfunction, and this is false. Therefore, brain death isnot biological death.21

I will briefly pause to address an objection, which isthat gas exchange, circulation, etc., are made possible

by the ventilator, and without it, these processes wouldnot occur. This is both true and irrelevant. Circulation,gas exchange, and cellular respiration are also madepossible by a permanently implanted pacemaker in aperson who needs it, and without the pacemaker, theseprocesses would not occur. But it does not follow fromthis that a person walking around with a pacemaker isalready dead because without the pacemaker her heart

wouldnt circulate oxygenated blood. Similarly, whenan individual with lack of all brain function relies ona ventilator, it does not follow that the homeostasis-maintaining functions that her body still performsnaturally and spontaneously are not really biological

functions. Thus, the brain death hypothesis is false.Lack of all brain function does not perfectly correlate

with the cessation of functioning of the organism as awhole, and brain death is not biological death.

It is worth pointing out that Bernat has implicitlyaccepted this. In subsequent writings he subtly butimportantly shifted the dialectic. The initial discus-sion was about brain death, which is the permanentcessation of all functions of the brain. The UDDA, andthe various state laws based on it, also pertain to braindeath, as they define death in terms of the perma-nent cessation of all functions of the brain. However,in Bernats later writings, he abandons the claim that

brain death is necessary for death, by redefining theterm brain death to mean something like partialbrain dysfunction.

Early on in the brain death literature it was discov-ered that individuals can meet the diagnostic require-ments for brain death in terms of apnea, unresponsive-ness, and lack of cranial nerve reflexes, yet nonethelessmaintain certain neurological functions. The mostobvious of these involves neurohormonal regulation offree water homeostasis and with it, the prevention ofcentral diabetes insipidus. Rather than acknowledgethat the tests produce false positives and recommenda test for neurohormonal function, Bernats new dia-lectic simply attempts to change the medical standardsso that both the definition of death and the criterionof biological death would be in line with the imper-fect diagnostic tests, tests which call people brain deadeven though they clearly maintain some neurologicalfunction (and hence, are not brain dead).

Specifically, Bernat has argued that the new defini-tion of death is the permanent cessation of the criti-calfunctions of the organism as a whole (my empha-sis).22 Critical functions, according to Bernat, are

functions that are necessary for the maintenance oflife, health, and unity of the organism.23The new cri-terion for this redefinition is not brain death. Rather,the criterion for the new definition is the irreversiblecessation of all clinicalfunctions of the entire brain

(my emphasis).24

The modifier clinical refers toimportant functions of the organism that are read-ily observable or measurable on bedside neurologicalexamination.25

Before I address Bernats claims, we must first clar-ify the dialectic. The initial claim was that brain death,that is, the cessation of all functions of the brain, is aphysiological criterion, or is a necessary and sufficientcondition, for biological death. This claim underliesthe UDDA and the state laws based on it. This claimhas been decisively refuted: an organism with com-plete lack of brain function, if maintained on a ven-tilator, can nonetheless maintain certain homeosta-

sis-maintaining biological functions, and so remainbiologically alive. Bernats new claim shifts the dialec-tic from the lack of allbrain function to the lack ofclinically apparent brain function, and this is not rel-evant to the original brain death hypothesis. Addition-ally, since the complete lack of brain function is nota sufficient condition for the death of the organism,neither is the partial lack of brain function. Neither

brain death nor Bernats partial brain dysfunction aresufficient for the biological death of an organism. Thedialectic has been shifted, but the move is fallacious.

More importantly, by shifting the dialectic in thisway, Bernat has already accepted that brain death

does not perfectly correlate with the permanent cessa-tion of the functioning of the organism as a whole. ForBernat, something weaker is now required: he nowclaims that brain death is sufficient but not necessaryfor biological death, whereas the whole-brain conceptof death makes brain death both sufficient and neces-sary for biological death.

Addressing Bernats new dialectic, it is easy to seethat the notion of a critical function is vacuous, andit does not rule out neurohormonal function except

by ad hoc decree. It does no good to define death interms of the cessation of critical functions and thento define critical functions in terms of the functionsnecessary for life. That may be true but it is trivial;to claim that neurohormonal functions are not criti-cal functions is simply to claim that neurohormonalfunctions are not necessary for life, which is to beg thequestion. It is also worth comparing the following twoquotes. The first is from Bernat (1998), the second isfrom Bernat et al. (1981).

While I agree that the secretion of antidiuretichormone counts as a function of the organism as a


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whole, it is not a critical functionbecause patientswithout such secretion can survive for long periodswithout treatment [my emphasis].26

The patients described by Brierley and associ-atesare also in this category [of being biologically

living]. These patientsretained many of the vitalfunctions of the organism as a whole, includingneuroendocrine controland the control of circula-tion and breathing [my emphases].27

Certainly, we may all change our minds over thecourse of a career, and there is nothing wrong withthat. However it is worth noting that this change onlycame about as a result of new findings that demon-strated that the standard diagnostic tests are flawed

because they routinely produce false positives. Afterthis flaw was brought to light, rather than change thetests in order to make them more reliable (specifically,

by incorporating a requirement that neurohormonalfunctions be ruled out), the new claim is that neuro-hormonal control is not a vital or critical function,

and that is ad hoc.Additionally, even if critical function can be non-

trivially defined, surely circulation, cellular respira-tion, gas exchange, etc., are functions necessary forthe life, health, and unity of the organism. Thus, evenif we adopt the new definition of death (and weshould not, because it is essentially undefined), it stilldoes not follow that brain death is biological death. Itis not.

Second, changing the physiological criterion frombrain death to partial brain dysfunction, where therelevant functions are now clinically observablefunctions, is both ad hoc and entirely irrelevant tothe nature of death. Biological death is a naturalphenomenon to be discovered by science. As such,the epistemic access of neurologists is irrelevant.

What possible difference could it make to the under-lying biological reality whether a neurologist needs apenlight or needs a blood test to look for circulatinghormones? Additionally, the ad hoc clinical func-tions test does not even rule out neurohormonalfunctions. The absence of central diabetes insipidus

is clinically apparent through the absence of polyu-ria anyway.28

It has been conclusively demonstrated that braindeath is not biological death. From this it follows thatBernats partial brain dysfunction is not biological

death either. Bernats shifting dialectic is fallaciouswith respect to the original question about biologi-cal death and its relation to brain death. Even should

we accept the shift, critical functions are an unde-fined ad hoc construction; the use of clinical functionsas their physiological criteria is similarly an ad hocmaneuver, and does not even do what it was intendedto do: clinically observable functions do not rule outneurohormonal functions because the lack of centraldiabetes insipidus is clinically apparent through the

lack of polyuria, and this demonstrates the preserva-tion of neurohormonal function.

Although it is clear that brain death is not biologi-cal death, nothing follows with respect to personhood,agency, or the status of a brain dead individual as amoral patient. Those are distinct questions. Let us

now turn to them.

Brain Death and DeathBrain death is not biological death, but as Rhodesnotes,29 the word death is also used to mark dis-tinctions in the moral and socio-legal realms. Thelegal definition is just what is at issue, so we willmomentarily leave that aside. However we may stillask: does brain death correspond to any of the dis-tinctions in the moral/psychological realm earlierdiscussed?

Brain death is sufficient but not necessary for thedeath of the person, in the psychological sense ofperson. The person dies (better: the person ceasesto exist) when the self, the subject of experiences, nolonger exists. This occurs when all psychological statescease. While psychological states have ceased to existin the brain dead individual, this event can also occurprior to brain death, for example (presumably at least)in an individual in a vegetative state (henceforth VS).

Additionally, an anencephalic infant is not brain dead,but (again, presumably at least), lacks all psychologi-cal states, and thus is not a person. Brain death does

Biological death is a natural phenomenon to be discovered by science. As such,the epistemic access of neurologists is irrelevant. What possible differencecould it make to the underlying biological reality whether a neurologist needs a

penlight or needs a blood test to look for circulating hormones?


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not mark the distinction between personhood andnon-personhood.

Similarly, brain death is sufficient but not necessaryfor the death of the moral agent. This occurs whenthe individual loses her autonomy, is no longer able

to have and give reasons, has no preferences or values,and cannot be held responsible for her actions. Peo-ple with severe dementia and individuals in a VS arealready dead, in the moral agency sense of death, butthey are not brain dead. At a different stage, infantsand very young children lack autonomy in this sense,and so they are not yet agents. Nonetheless they arenot brain dead. Brain death does not mark the distinc-tion between agency and lack of agency.

All that is left is the moral patient concept of death,and this is a crucial point: whether brain death marksthe distinction between membership and lack of mem-

bership in the moral community is a normative value

judgment, subject to rational disagreement. The claimthat brain death is the death of the moral patient isequivalent to the claim that brain dead individuals arenot entitled to the moral protections typically affordedthose who are members of the moral community, suchas the prohibition against autopsy, cremation, andmost relevantly, the prohibition against the removal of

vital organs.30However, that question, whether braindead individuals should be afforded the same or simi-lar moral protections as non-brain-dead individuals,is not a scientific question. The answer to it dependson how much value gets assigned to biologically func-tioning individuals in the brain dead state. If little to

none, then brain dead individuals are not members ofthe moral community, and it is morally acceptable toremove their vital organs (thus ending the biologicallife of the individual). Hence, on this value-assign-ment, brain death is the death of the moral patient.If, however, some level of biological functioning con-fers moral value on an individual, then on this distinct

value-assignment, brain death is not the death of themoral patient. Whether brain death corresponds tothe death of the moral patient depends on the norma-tive question of how much (or what kind of) value toassign a biologically functioning individual with com-plete lack of brain function. Science cannot answerthat question.

The Legal Concept of DeathI now defend the central claim of this paper. Namely,the brain death criterion for death is not successfulpublic policy; alternatively, the current legal defini-tion of death, defined in terms of brain death, engen-ders serious moral failings and therefore ought to bechanged.

To understand what is at issue, well need a keyconcept: the legal definition of death is a stipulativedefinition. Hence, it is true by definition, regardlessof what that stipulation is; or, it is impossible for thelegal definition to be false. For example, if the laws

were changed so that the legal concept of death isdefined in terms of the cessation of all functions of thekidneys, then a person would, by definition, be legallydead upon renal failure. There is no sense to be had inasking whether the legal definition of death is trueor not; it is true by definition. Rather, the appropriatequestion is: how shouldwe legally define death? Thisis a normative question about the best way to legallystipulate the conditions under which we will, for socio-legal purposes, call an individual legally dead.31

The legal definition should track one or more of thevarious death-concepts thus far discussed. I foreseeno reasonable argument for legally defining death

in some way that tracks neither the biological con-cept, nor the personhood concept, nor the moral agentor patient concept. As I mentioned above, we mightdefine death in terms of the loss of all kidney func-tion, for example, but why would we?

In what follows, I present several arguments againstthe brain death criterion as the legal standard fordeath. Ultimately, the brain death criterion for legaldeath engenders unsuccessful policy because it is dis-ingenuous, and because it results in serious moralflaws in medical practice. I present these arguments asdistinct, but many of them draw on overlapping pointsand concerns.

The Ad VerecundiamAn ad verecundiamis a fallacy that appeals to an inap-propriate authority. For example, John Madden is anexpert on American football, but not on, say, physics.

Appealing to John Maddens views about football is anappropriate appeal to a relevant authority. But appeal-ing to John Maddens views about physics involves theappeal to an inappropriate authority.

The scientific/medical community, as a whole, is anauthority on biology and medicine. That is, the medi-cal community is authoritative on factual biologicalquestions, and an appeal to the medical communityto resolve factual questions about biology is an appro-priate appeal to a relevant authority. However, amongthe various concepts of death, only one of them is inthe factual, scientific domain, and that is the biologi-cal concept. We have seen that brain death is not bio-logical death; whether brain death marks distinctionsamong the other death-concepts, however, is not inthe purview of science.

A key event in the evolution of public policy thatultimately resulted in our current policy was the pub-


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lication of A Definition of Irreversible Coma in theJournal of the American Medical Association,32 in1968. This was authored by a panel of experts fromHarvard who studied patients in irreversible coma.The subsequent book Defining Death,33by the Presi-

dents Commission for the Study of Ethical Problemsin Medicine and Biomedical and Behavioral Research,adopted the 1968 definition, and this was incorpo-rated into the UDDA and all subsequent state laws

based on the UDDA. However, as we have seen above,the empirical brain death hypothesis is false. Braindeath is not biological death; but that really never wasthe question at issue. The questions have always beenthese: when is it acceptable to remove life-sustainingmachinery in order to free up ICU beds, and when isit acceptable to remove organs? Since solid organs arenot viable after biological death, the answer to this lat-ter question, if we are to obtain organs for transplant

(and respect the dead donor rule), had better be some-time before biological death.

As noted previously, these are not scientific ormedical questions. They are value-laden, normativequestions. However, by putting forth the claim that

brain death is death, backed by such prestigious sci-entific institutions as Harvard Medical School and theJournal of the American Medical Association, the fullweight and force of the scientific medical communitybacks the claim. The claim that brain death is death isput forward by medical scientists as if it were a scien-tific fact that has been discovered, rather than what itis: it is a normative judgment that has been decided.

But medical scientists are not normative experts, andthis is a bald ad verecundiam.

An Obscured Public DebateThe claim that brain death is death is ambiguousamong the several senses of the word death. Morecarefully, there are several distinct words, all of whichare homonyms, and all of them are spelled, death.Like bank (which refers to the financial institution)and bank (which refers to the side of a river), death,death, death (etc.) are all different words. Whencontext does not make clear the distinctions, I will usedeath-b, death-p, death-ma, death-mp, death-l,and death-c to denote, respectively, biological death,death of the person, death of the moral agent, death ofthe moral patient, legal death, and the commonsensenotion of death.

The claim that brain death is death-b is a techni-cal scientific claim for medical scientists to grapple

with. None of the other claims are. The most impor-tant remaining claim is whether brain death is death-mp, because each of the relevant questions, regarding

when it is appropriate to remove vital organs, or when

it is acceptable to remove life-sustaining machineryand free up ICU beds, turn on whether brain deathmarks the distinction between membership and non-membership in a moral community. Like euthanasia,abortion, and the permissibility of stem cell research,

this is a question of grave moral significance, and it isthe sort of question about which the entire communityshould get the chance to deliberate upon.

However, that public debate is obscured and pre-vented. As a result of the ad verecundiamand the vari-ous homonyms, the underlying normative questionsare masked. Rather than having the value judgment that a brain dead individual has lost her standingin the moral community even though she remains bio-logically alive be made explicit as such, instead weonly hear the claim that brain death is death. Withouthaving access to the literature upon which this claimis based, and without engaging in a careful study of

that literature, it is impossible to recognize that claimfor the value judgment that it is. The commonsenseconcept of death, whatever else it involves, clearlyhas biological function at its core. Thus, read fromthe commonsense view, the claim that brain death isdeath-c cannot possibly be interpreted as not involv-ing biological death, and this makes the claim entirelymisleading and therefore disingenuous.

Everyone agrees that autopsies and cremation areacceptable on a dead body. If the medical communityhas discovered that brain dead individuals are dead,then why wouldnt organ removal also be acceptable?

Without making the value judgment that underlies

the brain death doctrine explicit, the general public isin no position to participate in deliberation about afundamentally moral issue, because that issue is notpresented as a moral issue. Rather, it is presented as afactual claim that medical scientists have discovered,and about which the general public has no standing todetermine.

Consider, for example, the following quote from theNew York State Department of Healths Guidelines onDetermining Brain Death34:

Hospitals must establish written procedures forthe reasonable accommodation of the individualsreligious or moral objections to use of the braindeath standard to determine death. Since objec-tions to the brain death standard based solely uponpsychological denial that death has occurred or onan alleged inadequacy of the brain death determi-nation are not based upon the individuals moralor religious beliefs, reasonable accommodation isnot required in such circumstances. However, hos-pital staff should demonstrate sensitivity to theseconcerns and consider using similar resources to


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help family members accept the determination andfactof death[my emphasis].

This policy is based on a misunderstanding, but thatis to be expected for the reasons laid out above. The

claim that brain death is death is put forward as if itwere a fact that has been discovered. But, among allof the various concepts of death and their associatedhomonyms, only one of them is factual, and that is the

biological concept. It has been decisively shown, timeand again, that brain death is not biological death;

hence, contrary to the Department of Health, thebrain death standard is inadequate as a determina-tion of biological death, and the fact is that the braindead individual is not biologically dead. But somehow

this claim is impervious to evidence: the fact that thetests are unreliable in that they produce false positives

by missing neurohormonal function has not resultedin a change in the diagnostic tests but in a change inthe criteria so that the criteria fit the flawed tests. Thefact that homeostasis-maintaining, entropy-resistingfunctions of the organism as a whole can remain inthe brain dead has not resulted in the abandonmentof the brain death hypothesis, as it would for anyempirical scientific claim that has been refuted by evi-dence. Rather, that fact has simply been ignored, andfor good reason: the claim that brain death is deathis not a scientific claim about the facts. It is a judg-ment about values, and this is why it is impervious toevidence.

I should make clear that I do not disagree with theunderlying value judgment, that organ removal fromthe brain dead is morally acceptable under certainconditions. But without having done a careful study ofthe medical and bioethics literature upon which theseclaims are based, the rest of the general public is notprivy to that discussion nor can the public play any rolein the decision whether to allow this (with consent)

or not. Without clarifying that the claim, brain deathis death really means, brain death is death-mp, it isto be expected that everyone, including the New YorkState Department of Health, is going to interpret aclaim made by the medical community as a factual,

medical claim, even though it isnt.Thus, a relatively small group of physicians andbioethicists have made a normative judgment about afundamental moral issue involving life, death, and the

value of biologically living human beings at the end oflife. But they have presented that value judgment as a

medical fact that no one outside the medical commu-nity has the expertise or authority to challenge. This isdisingenuous, and it has prevented the possibility ofany meaningful public debate about that fundamental

moral issue. Maintaining the legal definition of deathin terms of brain death only serves to perpetuate thisserious moral problem.

The Lack of Informed ConsentRespect for autonomy, or for the right of self-determi-nation, is deeply grounded in both our common lawtraditions as well as our medical ethics. One of the

ways that this principle appears is through the require-ment of informed consent for medical procedures. Aninformed consent is given when the consenter has ade-quate understanding of the relevant facts, and volun-tarily, without coercion, consents to some procedure.

When an individual lacks autonomy and has not givenprior directives, her autonomy can still be respected,in a sense, by respecting the decisions of her surrogatedecision-maker. In this case, the surrogate decision-maker acts as a proxy or stand-in for the patient. Justas if the patient herself were making a decision, thesurrogates consent must be informed: it must be madein the presence of adequate understanding of the rel-evant facts, and in the absence of coercion.

It has been decisively shown, time and again, that brain death is notbiological death; hence, contrary to the New York Sate Department of Health,

the brain death standard isinadequate as a determination of biologicaldeath, and the fact is that the brain dead individual is not biologically dead.

But somehow this claim is impervious to evidence: the fact that the tests areunreliable in that they produce false positives by missing neurohormonal

function has not resulted in a change in the diagnostic tests but in a changein the criteria so that the criteria fit the flawed tests.


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Consents for organ donation are practically neverinformed consents. There are two ways that consentsare typically given for organ removal from the braindead. The first, more frequent way, is through a con-

versation between family members and the physi-

cian, after the patient has already been declared braindead. The second occurs when people fill out consentforms at their state Department of Motor Vehicles, orthrough online consent forms with their states OrganProcurement Organization (OPO). I will address thepost-brain death conversation with family membersfirst.

The implementation of informed consent is achievedthrough a conversation between patient or surrogatedecision-maker and physician, where the physicianexplains the relevant facts to the decision-maker. Forthis conversation to result in the successful communi-cation of information, both the physician (the speaker)

and the decision-maker (the hearer) must play theirrespective communicative roles appropriately. For thephysician, that means that she must understand herown subject matter clearly, before she can communi-cate that to the hearer.

Unfortunately, many physicians do not understandthe conceptual difficulties, inadequacies, and falla-cious reasoning surrounding the brain death doctrine.I make this claim on the following four grounds. First,the literature upon which the brain death doctrine is

based is riddled with non sequiturs. Discussions ofcritical vs. non-critical functions are irrelevant; con-sciousness is a red herring, as the difference between

life and death is not the presence or absence of con-sciousness; there is confusion between diagnosis andprognosis; the creation of various homonyms distortsthe issue and obscures the underlying value judg-ments; and there is confusion between the normativequestions about organ donation with the factual ques-tions about biological life and death.35We can hardlyexpect that great clarity will arise from such a confusedprimary literature, and it is no surprise to find a lack ofunderstanding about death, brain death, and the rela-tions between them.

Second, Shewmon, Halevy, and Youngner all agreewith my assessment. Shewmon writes, the conceptualbasis for equating a dead brain with a dead humanindividual remains as confused and controversial todayas ever.36Halevy concurs: many health profession-als, including those actively involved in organ trans-plantation, are confused about the current definition,criteria, and tests for determining brain death37(myemphasis). Youngner et al. provide an empirical studythat supports the claim of inadequate understanding

by health professionals.38 Of course, this is a datedstudy at this point (it is from 1989). However, the

confusion in the literature remains, as does the wide-spread acceptance of the conceptually confused braindeath doctrine, therefore it is reasonable to concludethat the confusion among health professionals them-selves remains as well.

Third, the quote from the New York State Depart-ment of Health about the fact that brain death is deathprovides further evidence for the claim that there is

widespread confusion among the medical community.Fourth and finally, the mere fact that the brain deathdoctrine is so widely accepted, when it is so clearlyconfused, is evidence enough that there is widespreadconfusion, even among physicians, about brain death,death, and the conceptual relations between the two.Therefore the physician, the speaker, is going to have adifficult time communicating with the family.39

The communicative difficulties for the hearer, thedecision-maker, are far worse than for the physician.

As a result of our acceptance of the dead donor rule,and as a result of the legal definition of death in termsof brain death, the physician, as Miller and Truognote,40must insist that brain death equals death. Thusthe physician must inform the family member that herloved one is dead. But what does that mean, sincethere are at least six different homonyms, all of whichare spelled, and sound like, dead? Presumably thefamily member will interpret dead in the colloquialsense of the word. Whatever other connotations might

be involved in the commonsense word dead, someversion of the biological concept, of cessation of func-tioning, clearly lies at the core of the commonsense

concept. Therefore, when the physician tells the deci-sion-maker, your family member has died, that state-ment is not true. On the biological concept, and henceon at least part of the commonsense concept, the braindead patient is still biologically alive. Therefore thedecision-maker does not have adequate understand-ing of the relevant facts; namely, the decision-makeris misinformed about whether the brain dead patientis biologically alive or not.

In the real world, physicians have difficult conversa-tions with family members, and do their very best toexplain to the family member something that is nottrue, and something about which the physician herselfis possibly unclear. The family member, for her part,does her best to understand what the physician triesto explain, but that understanding is near to impos-sible, since the physicians word dead might meanany of a number of things. If it means dead-b, thenthe claim that the family member is dead is false. If itmeans dead-p or dead-ma then the claim is true

but misleading. If dead means dead-mp, then thephysician has unwittingly taken the moral decisionout of the hands of the person who should be making


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that decision, and anyway the claim is again mislead-ing because no matter how you analyze it, the collo-quial word dead involves an imprecise, non-techni-cal version of dead-b. All of these various confusionsresult in the near impossibility of obtaining or giv-

ing informed consent for organ donation, and all ofthese confusions arise because the legal word dead isdefined in terms of the brain death standard.

On the other hand, patients can give consent fororgan removal through an advance directive, eitherthrough the Motor Vehicle Department or on theregions OPO website. For the various reasons dis-cussed above, including the ad verecundiamand allthe reasons that public debate is obscured, the generalpublic is in no position to make a truly informed choiceabout what they would like to happen to their bod-ies before they have biologically died but after brainfunction has ceased. The situation is even worse in this

scenario than in the conversation scenario discussedabove. In the conversation scenario, the doctor at leastattempts to inform the family about the relevant factssurrounding the decision (even though that attempt ispractically doomed to fail). In the case of internet con-sent forms, virtually no attempt at providing relevantinformation is made.

Woien et al. studied the websites of every OPO inthe U.S., and scored each site based on, among otherthings, donation promotion and informed consent.41To score informed consent, they used the minimalinformation recommended by the United StatesDepartment of Health and Human Services recom-

mendations for informed consent,42as percentages ofthe recommended data elements. For example, recom-mended data elements for informed consent includecriteria for brain death and cardiac death, organ donorend-of-life care, medical tests necessary for organprocurement, and disclosure of confidential medicalrecords to OPOs. They found that not even a single

website (out of the 60 in total, for each OPO regionof the U.S.) provided any information at all on any ofthese recommended data elements. Not a single statedisclosed information about aspects of end-of-life careincompatible with organ donation, options availablefor hospice care and organ donation, or changes tomedical care at the end of life with organ donation.

On the other hand, the scores for donation promo-tion and donor consent reinforcement were very high.The websites include altruistic reasons to donate, reli-gious views condoning donation, tips for persuasion ofdonors family to consent, claims that the donors fam-ilys grief is alleviated by donation, and that the familyis not responsible for organ procurement expenses.

Woien et al. write,

Our findings showed that the disclosure on OPOWeb sites and in online consent forms lacked per-tinent information required for informed enroll-

ment for deceased organ donation The Web sitespredominantly provide positive reinforcement andpromotional information rather than the transpar-ent disclosure of the organ donation process.43

In other words, the online consent forms and OPOwebsites serve as mere advertisements designed toconvince people to donate organs. They do not serveas reliable sources of information about the relevantfacts surrounding the organ donation process. Advancedirectives made through online consent forms, OPO

websites, and Motor Vehicle Departments (check thisbox to donate your organs upon your death), most

certainly do not constitute informed consents.Therefore, whether it is through the sort of advance

directives discussed above, or through a discussionbetween family members and the physician afterbrain death has occurred, consent for organ donationis almost never informed. This is inconsistent with thepurpose of living wills and surrogate decision-makers:the raison dtre of these things is to preserve the abil-ity of autonomous agents to determine the course oftheir lives, even after their autonomy has been lost.But in the absence of crucially relevant information,autonomous agents cannot direct the course of theircare at the end of life. This situation will continue

so long as public policy remains as it is, with deathlegally defined in terms of the brain death standard.

The Rejection of PluralismReasonable, morally serious people of good will canreasonably differ in some of their fundamental value

judgments. This is not an endorsement of relativism,but a simple recognition of the fundamental natureof certain value judgments. For example, someonesympathetic to the Kantian tradition will claim thatintrinsic moral value is had only by rational agents,

because only things that do value things, and havethe ability to pursue what they value based on rea-sons, have moral value. By contrast, those sympa-thetic to the utilitarian tradition will claim that thesimple ability to suffer confers intrinsic moral value,irrespective of the ability to think or to have reasons.Others will claim that being a biologically function-ing human confers intrinsic moral value, and others

yet will take a religious view, which is probably exten-sionally (but not intensionally) equivalent to one ofthe above.


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For the very reason of their fundamental nature, wedo and should accept a pluralism of value-assignments.This is, emphatically, not to say that we should accepta pluralism of biological concepts of death. Biologicaldeath is what it is, and our concepts either correspond

to it as it is, or they do not. On the other hand, reason-able people can reasonably make differing value judg-ments. In fact, we already do, to some extent at least,accept this: recall the reasonable accommodationrequirement from the New York State Department ofHealth.

While mistaken about the difference between thefacts and values surrounding this issue, nonetheless,the New York State Department of Healths reason-able accommodation requirement for religious ormoral objections to the brain death standard is appro-priate, and it is explained and justified by the follow-

ing consideration. Since the brain death standard doesnot reflect a factual judgment about biological death,

but does reflect a normative judgment about whichreasonable people can reasonably disagree, it is sen-sible to make room for reasonable differences in value

judgments.However, by defining the legal term death in

terms of the brain death standard, we have implicitlyrejected the value-pluralism that underlies the reason-able accommodation requirement. To see why, recallthat brain death is neither biological death, nor per-sonhood death, nor death of the moral agent. Rather,

the legal definition of death in terms of the braindeath standard is simply the value judgment that bio-logically functioning human beings with completelack of brain function are not members of the moralcommunity.

This value judgment, however, is only one amongseveral reasonable value-assignments. But by codi-fying that value judgment into law, we have rejectedall other value-assignments. Legislators, basing theirdecision on the inappropriate authority of their medi-

cal advisors, have forced their own fundamental valuejudgment onto everyone else, without ever giving thepublic the opportunity to participate in deliberation.The current legal definition of death therefore rejectsthe possibility that there might be distinct yet reason-

able fundamental conceptions of the determinants ofhuman moral worth.

Unnecessarily Obscure LanguageWhile there are indeed several different concepts ofdeath, using the word death to describe each of themserves no good purpose. Using death in these vari-ous ways, as homonyms, elides distinctions that needseparation and confuses issues that need clarification.It is further unjustified because we already have clear,relatively colloquial language to say everything thatneeds saying, without using confusing homonyms to

do so.

Instead of using death to mark vari-ous distinctions in the social, political, andmoral realms, we can say the following. Theperson and the moral agent have ceased toexist. The individual is no longer a mem-

ber of the moral community. The only dis-tinction that we need the word death tomark is the distinction in the biologicalrealm, between anti-entropy and entropy.The colloquial word dead, whatever elseit involves, has this concept of the cessa-tion of biological functioning at its core,and therefore, partially at least, tracks the

same distinction. By using clearer, morecareful language, much of the confusions noted abovecan be avoided or clarified.

For example, the ad verecundiambecomes obvious:the medical community tells us about biological facts,including biological death, but scientists qua scientistsare not normative experts. Thus, the value judgmentthat brain dead but living individuals are not mem-

bers of the moral community is made obvious. Simi-larly, the debate about this crucial moral issue can bemade public and open to forthright discussion, justas the other moral issues surrounding life and deathare. Informed consent will become possible as well,

because we will no longer disingenuously claim thatbrain dead individuals are already dead. Instead, wecan say that they are biologically alive, but that theperson that they once were, the moral agent, the locusof rationality, consciousness, and personality traits, nolonger exists. Depending on ones fundamental value

judgments, an informed decision can be made aboutwhether to donate organs, even though doing so willresult in the (biological) death of the brain dead butliving individual.44

The colloquial word dead, whatever elseit involves, has this concept of the cessationof biological functioning at its core, andtherefore, partially at least, tracks the samedistinction. By using clearer, more carefullanguage, much of the confusions noted can

be avoided or clarified.


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Organ Donation Kills the DonorBrain dead organ donors are biologically alive beforethe organ recovery process and dead afterwards; organremoval from a brain dead donor kills the donor. I haveargued elsewhere that, ifthis were consented to based

on an adequate understanding of the relevant facts,it would be morally acceptable.45However, remov-ing organs, and thereby killing the donor in the pro-cess, in the absence of consent, is an egregious moral

violation.Many if not most organ donors might nonetheless

consent to donation if they ever became brain deadeven if they knew the relevant facts (that is, that a

brain dead individual is biologically alive but all tracesof the person and the agent are gone). However, thispresumption does not exonerate our current systemfrom its failure to allow people to make that choicefor themselves. So long as death is legally defined

in terms of brain death, because of all of the numer-ous sources of confusion discussed above, it is nearlyimpossible for people to give a legitimately informedconsent to their being killed by organ removal. Andthat is morally intolerable.

All of the above arguments, while distinct, share thesame overlapping concerns. Legally defining deathin terms of the brain death standard unacceptablyobscures a moral judgment about the value of biologi-cally living human beings that not all reasonable peo-ple would accept. This is disingenuous, and it resultsin the failure to respect the right of autonomousagents to decide what happens to their bodies before

they have died. This failure is so egregious that it evenresults in biologically living individuals being killed

without their consent, either via an informed advancedirective or an informed surrogate decision. As I saidabove, this situation is morally intolerable, and it must

be changed.

Policy RecommendationFor all of the reasons discussed above, public policy

based on the brain death standard is far from optimal;rather, it suffers from serious moral flaws that demandrectification. In this brief section I propose a policyshift that aims for correction of these flaws.

Since the legal definition of death is stipulative, theappropriate question to ask is: how shouldwe legallydefine death? Given the arguments above, it is clearthat at least one way that we should notdefine deathis in terms of brain death. Rather, the legal definitionof death should track the biological concept.

The biological concept of death involves the ces-sation of functioning of the organism as a whole inits unified maintenance of internal homeostasis andresistance of entropy. The permanent cessation of all

functions of the brain does not correlate with this.However, the permanent cessation of all circulatoryand respiratory functions does. Therefore, the criteriafor the biological, and hence the legal concept, oughtto be reverted to the older cardio-respiratory criteria.

When the legal definition tracks the biological con-cept, the unnecessary confusions that engender allof the moral flaws discussed above will be removed.Clearer language, as discussed previously, can beused to say everything that needs saying. Further,

we should not accept an anything-goes conceptionof death, and having the legal concept track the bio-logical concept allows for this, since the biologicalconcept is governed by biological reality, not by nor-mative value judgments or cultural norms. Addition-ally, legally defining death in terms of the biologicalconcept does not obscure normative value judgments,nor does it rule out any of the value judgments that we

currently make implicitly.After public acknowledgement of the biological

fact that brain dead individuals are biologically alive,forthright public debate can ensue on the underly-ing moral issue that has always been at the heart ofthe brain death debate: when is it morally acceptableto remove vital organs, and when is it acceptable toremove brain dead individuals from the ventilator,thus allowing them to die? I advocate, along withthe proponents of the brain death criteria, that braindead organ removal (with consent) is morally accept-able. However, to legally allow this, homicide laws

would need to be revised in order to allow exceptions

for the case of transplant surgeons, since brain deadorgan donors are in fact killed by the process of organremoval.46

Although it is clear that the current public policy ondeath and brain death is seriously unacceptable, thereis an important objection to my call for drastic change.Given the political climate of many countries, it isaltogether likely that many people will be dismayed tofind out that brain dead organ donors are killed forthe purpose of organ removal. Once this fact is pub-licly acknowledged and the legal definition of deathis changed as I advocate, it is very likely that the fur-ther changes I propose, allowing revisions to homicidelaws so that brain dead organ removal would be legal,

would not take place. If this occurred, the entire trans-plantation enterprise might suffer a near-collapse, as a

very large majority of organs are removed from braindead donors, but this would no longer be allowed inthe scenario envisioned here. The organ shortage that

we suffer from today would be greatly exacerbated.With fewer organs available, many more people will

die from organ failure. As a direct result of the policychanges I recommend (assuming, that is, that further


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revisions to homicide laws do not also take place),thousands of people will die. This is not a consequenceto be ignored or taken lightly, and I do neither of thesethings. However, it is also crucial to understand thisargument: it is an argument from utility that advo-

cates the intentional deception of the public by themedical community.The argument from utility under consideration goes

like this. Suppose the medical community publiclyadmits its error, and acknowledges that brain deathis not biological death, thus resulting in the redefini-tion of the legal term death in terms of the biologi-cal concept, whose criterion is cardio-respiratory, notneurological. Then, it is very likely that the killing of

brain dead donors for the purpose of organ recoverywill not also become legal. Then fewer organs will beavailable, and more people will die as a result. It is bet-ter to continue making a disingenuous claim than to

allow so many to die. Therefore we should maintainpublic policy as it is.

This is a compelling argument at first glance, andit is the only argument for maintaining the status quothat is not grounded in one or another fallacy. Unfortu-nately, it is also unacceptable. Biological reality is whatit is, whether we like it or not. This is the main pointmade in the section Scientific Realism and Biologi-cal Death. The fact is that brain death is not biologi-cal death, and nothing that anyone says or agrees tois going to change the underlying biological reality to

which our words refer. What the argument advocates,however, is for the medical community to intention-

ally deceive the public about the biological reality ofdeath. Mistakenly claiming something that is not trueis one thing, and it is morally excusable; intentionallydeceiving the whole community is entirely different.

Trust is at the foundation of medicine. Nothing ismore important to the existence of the medical fielditself than trust, by the patient, of the physician andmedical community. We trust our doctors with pri-

vate and sometimes embarrassing information, withvarious states of undress and forms of touch that wewould not allow anyone else, and we ingest potentiallyhazardous chemicals at the behest of our physicians,

because we trust them. We allow our physicians torender us unconscious and cut into our bodies, and wego so far as to allow, and even expect, our physiciansto occasionally override our decisions if they judgeour decision-making to be unreasonably clouded bypain, emotional distress, or metabolic disturbances.None of this is possible without the single foundationof medicine, which is trust. As Rhodes writes, from

whom I borrow the argument above, seek trust anddeserve itis the fundamental moral imperative fordoctors.47

The fundamental moral imperative, to seek trustand deserve it, is clearly violated by intentional, wide-spread public deception on the part of the medicalcommunity. While the argument from utility men-tioned above seems compelling at first, we must

recognize that it advocates doing something that isantithetical to the very existence of the institution ofmedicine, and therefore we cannot accept it. Ratherthan using utility as an argument for deception, utilitycan and should be used as an argument for allowingtransplant surgeons to remove vital organs from braindead but living donors.

Beyond the Limits of ScienceThe debate over brain death and death was never ascientific debate, and recognition of this is crucial forremoving and correcting the serious moral flaws thatthis misconception has engendered. This debate is

beyond the limits of science in at least three ways.First, right from the start, nothing even resembling

the scientific method of inquiry was used to determinethe relation of brain death to death. I can say this no

better than it has already been said; I quote here fromByrne and Weaver (all emphases in the original)48:

Brain death was not propagated via a medicalscientific method. A committee of experts wasconvened to deal with issues that could affect dis-position and/or utilization of these patients. Thefirst words of the Report of the Ad Hoc Commit-tee of the Harvard Medical School to Examine the

Definition of Brain Deathare as follows: Ourprimary purpose is to define irreversible coma as anew criterion for death.

The primary purpose of the Committee was notto determineIF irreversible coma was an appropri-ate criterion for death but to see to itthatIT WASestablished as a new criterion for death. Withan agenda like that at the outset, the data could

be made to fit the already arrived at conclusion.It seems that there was a serious lack of scientificmethod in this process.

Second, after the brain death hypothesis was estab-lished, no amount of evidence could refute it. The

brain death hypothesis has been impervious to evi-dence in at least two ways. As discussed above, thediagnostic tests used to determine if all functions ofthe brain have ceased routinely produced false posi-tives, claiming that individuals were brain dead whenthey were not. Rather than revise the testing proce-dure, the medical standards were simply changed sothat the criteria for death would fit the imperfect tests.Once it was discovered that the tests do not reveal


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neurohormonal function, neurohormonal functionsbecame insignificant or not critical.

It is abundantly obvious that cellular respiration,alveolar gas exchange, and circulation are functionsof the organism of the whole that maintain internal

homeostasis and resist entropy. Although the progno-sis of a brain dead individual is quite poor, nonethe-less, while maintained on a ventilator these functionsdo continue. This provides incontrovertible evidencethat refutes the brain death hypothesis. Any empiricalscientific hypothesis that has been so decisively andobviously refuted would have been discarded long ago.But somehow the brain death hypothesis survives, somuch so that it is considered medical fact. The braindeath hypothesis is so completely impervious to evi-dence that it does not matter whatwe find even

brain dead mothers gestating fetuses and brain deadchildren growing and sexually maturing.49Somehow,

the brain death standard tenaciously holds on, in theface of clearly refuting evidence. It is therefore beyondthe limits of science.

Third and finally, what lie at the heart of this debateare moral questions. They are questions about themoral value of biologically living human individualsthat have lost all brain function. But these questions,like questions about euthanasia and the just distri-

bution of resources in the face of scarcity, are moralquestions, not scientific questions. Only when we rec-ognize the brain death standard for the non-scientific,non-factual moral judgment that it is, will we be ableto address and rectify the serious moral failings engen-

dered by our current public policy, a policy which is farfrom optimal.

AcknowledgementsI presented an early version of this paper at the 2009 Oxford-Mount Sinai Consortium on Bioethics, in New York City. I amgrateful to the participants for a great deal of thoughtful conversa-tion. I am also grateful to an anonymous reviewer of theJournal of

Law, Medicine & Ethics for insightful and helpful commentary.

References1. See Presidents Commission for the Study of Ethical Problems

in Medicine and Biomedical and Biobehavioral Research,Defining Death: Medical , Legal, and Ethical Issues in theDetermination of Death(Washington, D.C.: U.S. GovernmentPrinting Office, 1981): at 119.

2. J. L. Bernat, The Whole-Brain Concept of Death RemainsOptimum Public Policy, Journal of Law, Medicine & Ethics34, no. 1 (2006): 35-43, at 41.

3. Id., at 41.4. R. Rhodes, Death and Dying, Encyclopedia of Life Sciences

(2003): 1-7, at 1.5. J. L. Bernat, C. Culver, and B. Gert, On the Definition and Cri-

terion of Death,Annals of Internal Medicine94, no. 3 (1981):389-394, at 390.

6. Bernat et al., id., do not explain the concept of functioningof the organism as a whole in terms of entropy-resistance,but in terms of the integration of the functions of smaller

subsystems (see id., at 390). However, they do mention, withapproval, Koreins early attempts to define the brain as thecritical system controlling the organism as a whole in termsof thermodynamics and the resistance of entropy [at 391, cit-ing J. Korein, The Problem of Brain Death: Development andHistory,Annals of the New York Academy of Sciences315, no.1 (1978): 19-38]. Therefore Bernat et al. hold the followingtheses in their 1981: (i) the brain is the critical system control-ling the organism as a whole, (ii) without a functioning brainthe organism does not function as a whole, and (iii) the brainis critical in virtue of its integrative role in resisting entropy.From (i)-(iii), we can conclude that the idea that function-ing of the organism as a whole should at least partially beunderstood in terms of homeostasis and entropy, is implicitin Bernat et al 1981. Additionally, Bernat later made this ideaexplicit: Critical functions of the organism as a whole com-prise three distinctcategories[of which one is:] integratingfunctions that assure homeostasis of the organism The criti-cal functions in all three categories must be permanently lostfor the organism to be dead. J. L. Bernat, A Defense of theWhole-Brain Concept of Death,Hastings Center Report 28,no. 2 (1998): 14-23, at 17.

7. See Bernat et al., supranote 5, at 391.8. All sentient creatures are moral patients; the ability to feel pain

puts one in the moral community, deserving of moral consid-eration (this is a controversial claim of course, but it is alsoirrelevant to any point made in the text so I make no attemptto defend it here). However, for the purposes of this paper weare only interested in the subset of humanmoral patients. Iwill henceforth use moral patient to refer solely to humanmoral patients, but I should be understood as not ruling outanimals as deserving of moral consideration.

9. The canonical no-miracle argument is from H. Putnam, Whatis Mathematical Truth? in H. Putnam, ed.,Mathematics, Mat-ter, and Method: Philosophical Papers(Cambridge: CambridgeUniversity Press, 1975). For a defense of scientific realism seeS. Psillos, Scientific Realism: How Science Tracks Truth (Lon-don and New York: Routledge, 1999). For different versionsof non-realism see B. C. Van Fraassen, The Scientific Image(Oxford: Clarendon Press, 1980) and N. Goodman, Ways ofWorldmaking (Indianapolis: Hackett Publishing Company,1978).

10. I do not mean to trivialize this important debate. It is a deepand central issue in metaphysics, and many serious philoso-phers have devoted a great deal of careful, rigorous thought toit. Nonetheless, the overwhelming rational support seems to beon the side of realism, and that should not be ignored.

11. I thank Dr. Lynne Richardson for pressing me on this pointduring a presentation at the 2009 Oxford-Mount Sinai Con-sortium on Bioethics.

12. I am grateful to an anonymous reviewer for helping me to clar-ify this section on scientific realism through several interre-lated objections; among them is the concern about vagueness.

13. See Bernat, supranote 5.14. See Bernat, supranote 6.15. For a more thorough defense see M. Collins, Reevaluating

the Dead Donor Rule, Journal of Medicine and Philosophy35, no. 2 (2010): 154-179 , from which I draw the followingdiscussion.

16. See Bernat et al., supranote 5, at 391.17. See J. Korein and C. Machado, Brain Death Updating a

Valid Concept for 2004, in C. Machado and D. A. Shewmon,eds., Brain Death and Disorders of Consciousness (New York:Springer, 2004). See also J. Korein, Brain Death: InterrelatedMedical and Social Issues,Annals of the New York Academy of

Science315, no. 1 (1978): 1-454.18. See Bernat, supranote 5, at 391.19. D. A. Shewmon, The Brain and Somatic Integration: Insights

into the Standard Biological Rationale for Equating BrainDeath with Death, Journal of Medicine and Philosophy 26,no. 5 (2001): 457-478.


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20. J. L. Bernat, On Irreversibility as a Prerequisite for BrainDeath Determination, in C. Machado and D. A. Shewmon,eds.,Brain Death and Disorders of Consciousness (New York:Springer, 2004).

21. In his 1998, Bernat wrote that integrating functions thatassure homeostasis of the organism [are critical functions ofthe organism as a whole][Further], the presence of [these]functions constitutes sufficient evidence for life [J. L. Bernat,A Defense of the Whole-Brain Concept of Death, HastingsCenter Report28, no. 2 (1998): 14-23, at 17]. Therefore evenBernat should accept that the presence of homeostasis-main-taining functions such as circulation, cellular respiration, andalveolar gas exchange clearly demonstrate that brain deadindividuals are not necessarily dead. Additionally, the worryabout vague cases discussed previously can be further allevi-ated: the brain dead individual with spontaneous circulation,gas exchange, etc. resists entropy and maintains homeostasisand is therefore not a vague case; she is clearly in the categoryof being biologically alive.

22. See supranote 21, at 17.23. Id.24. Id.25. Id.26. Id.27. See supranote 5, at 390.28. This should not be taken to imply that I endorse the ad hoc

clinical function criterion, as I do not. As F. G. Miller and R.D. Truog write in An Apology for Socratic Bioethics, Ameri-can Journal of Bioethics8, no. 7 (2008): 3-7, at 3, Most phy-sicians have been taught to regard the equivalence of braindeath and death as a medical fact on a par with the Krebscycle. I only point out that clinical functions do not rule outneurohormonal functions to show the persistently fallaciousreasoning that is routinely appealed to, and that forms thebasis for what is accepted as the medical fact that brain deathis death.

29. See supranote 4, at 1.30. An anonymous reviewer pointed out that some people who

are not dead might nonetheless be willing to forgo the protec-tions afforded the living, such as the prohibition against theremoval of vital organs. This is correct, and it is consistentwith my thesis here, which is simply that whether a brain deadindividual is a moral patient is a normative value judgment.Affording living individuals certain moral protections does notimply that those individuals may not voluntarily revoke thoseprotections.

31. In an earlier paper (see note 15), I stated that the UDDA hadgotten it wrong, because death is not brain death, and thusthe claim made by the UDDA is false. What I should have saidis that the legal definition got it wrong because it does not, butshould, correspond to biological death. Defending this latterclaim is in essence the central goal of this paper.

32. H. K. Beecher et al., A Definition of Irreversible Coma: Reportof the Ad Hoc Committee of the Harvard Medical School toExamine the Definition of Brain Death, JAMA 205, no. 6(1968): 337-340.

33. See also supranote 1.34. Department of Health, New York State, Guidelines for Deter-

mining Brain Death (2005), at 2-3, available at (last visited August 3, 2010).

35. See M. Collins, Consent for Organ Retrieval Cannot be Pre-sumed,HEC Forum 21, no. 1 (2009): 71-106, where I providea more detailed defense of the claim that consents for organ

removal are not informed, and upon which this discussion isbased. I provide textual evidence for each of the listed sourcesof confusion there.

36. See supranote 19, at 457-458.37. A. Halevy, Beyond Brain Death? Journal of Medicine and

Phil

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