Bioethic Extract8

CH A PT ER SEV EN
A SU M M A RY OF T H E COU N CIL’S
DEBAT E ON T H E N EU ROLOGICA L
STA N DA RD FOR DET ERM IN IN G
DEAT H
A
s we noted in the Preface and in Chapter O ne, although
this report addresses several controversies in the determi-
nation of death, including those arising in the context of
controlled D CD , its primary focus is on the debates surrounding
the neurological standard for the determination of death. In its de-
liberations, the President’s Council on Bioethics did, indeed, discuss
controlled D CD and the traditional cardiopulmonary standard; it
also voiced concerns about the problem of ensuring adequate end-
of-life care for the patient-donor. The Council’s principal concern,
however, was with the question, D oes a diagnosis of “whole brain death”
mean that a human being is dead? In other words, does the neurological
standard rest on a sound biological and philosophical basis?
Among members of the President’s Council on Bioethics, the pre-

vailing opinion is that the current neurological standard for
declaring death, grounded in a careful diagnosis of total brain fail-
ure, is biologically and philosophically defensible. The ethical
controversies explored in this report were first raised for the Coun-
cil during its inquiry into organ transplantation: as most deceased
organ donors have been declared dead on the basis of the neuro-
logical standard, questions about its validity have an obvious
relevance for organ procurement. The Council concluded that, de-
spite that connection, the two matters— determining death and
procuring organs— should be addressed separately. More precisely,
questions about the vital status of neurologically injured individuals
89
90 | CO NTRO VERSIES IN THE D ETERMINATIO N O F D EATH
should be taken up prior to and apart from ethical issues in organ pro-
curement from deceased donors.
Two such questions must be posed and answered in light of certain

clinical and pathophysiological facts and in light of the competing
interpretations of those facts. First, are patients in the condition of total
brain failure actually dead? And, second, can we answer the first question
with sufficient certainty to ground a course of action that treats the body in that
condition as the mortal remains of a human being? Most members of the
Council have concluded that both questions can and should be an-
swered in the affirmative. They reaffirm and support the well-
established dictates of both law and practice in this area.
Many members of the Council, however, judge that affirmative an-

swers to these questions must be supported by arguments better
than and different from those offered in the past. Until now, two
facts about the diagnosis of total brain failure have been taken to
provide fundamental support for a declaration of death: first, that
the body of a patient with this diagnosis is no longer a “somatically
integrated whole,” and, second, that the ability of the patient to
maintain circulation will cease within a definite span of time. Both
of these supposed facts have been persuasively called into question
in recent years.
Another argument, however, can be advanced to support the decla-

ration of death following a diagnosis of total brain failure. It is one
that many members of the Council find both sound and persuasive,
for it appeals to long recognized facts about the condition of total
brain failure, while doing so in a way that is both novel and phi-
losophically convincing. According to this argument, the patient
with total brain failure is no longer able to carry out the fundamen-
tal work of a living organism. Such a patient has lost— and lost
irreversibly— a fundamental openness to the surrounding environ-
ment as well as the capacity and drive to act on this environment on
his or her own behalf. As described in Chapter Four, a living organ-
ism engages in self-sustaining, need-driven activities critical to and
constitutive of its commerce with the surrounding world. These
activities are authentic signs of active and ongoing life. When these
CHAPTER SEVEN | 91
signs are absent, and these activities have ceased, then a judgment
that the organism as a whole has died can be made with confidence.
However, another view of the neurological standard was also voiced
within the Council. According to this view, there can be no cer-
tainty about the vital status of patients with total brain failure;
hence, the only prudent and defensible conclusion is that such pa-
tients are severely injured— but not yet dead— human beings.
Therefore, only the traditional signs— irreversible cessation of heart
and lung function— should be used to declare a patient dead. Also,
according to this view, medical interventions for patients with total
brain failure should be withdrawn only after they have been judged
to be futile, in the sense of medically ineffective and non-beneficial to the
patient and disproportionately burdensome. Such a judgment must be
made on ethical grounds that consider the whole situation of the
particular patient and not merely the biological facts of the patient’s
condition.* O nce such a judgment has been made, interventions can
and should be withdrawn so that the natural course of the patient’s
injury can reach its inevitable terminus. O nly after this process has
occurred and the patient’s heart has stopped beating, is there a
morally valid warrant to proceed with such steps as preparation for
burial or for organ procurement.
With this report, the President’s Council on Bioethics seeks to shed

light on a matter of ongoing ethical and philosophical controversy
in contemporary medicine. K nowing when death has come, along
* This understanding of medical futility has been developed in several papers by

Edmund D . Pellegrino, the Council’s chairman. In these (as well as other) works,
Pellegrino argues that clinical judgments of the futility of a given therapeutic in-
tervention involve a “judicious balancing” of three factors: (1) the effectiveness of
the given intervention, which is an objective determination that physicians alone
can make; (2) the benefit of that intervention, which is an assessment that only
patients and/ or their surrogates can make; and (3) the burdens of the intervention
(e.g., the cost, discomfort, pain, or inconvenience), which are jointly assessed by
both physicians and patients and/ or their surrogates. For example, see E. D .
Pellegrino, “D ecisions to Withdraw Life-Sustaining Treatment: A Moral Algo-
rithm,” JA M A , 283, no. 8 (2000): 1065-7; and E. D . Pellegrino, “Futility in
Medical D ecisions: The Word and the Concept,” H E C F orum, 17, no. 4 (2005):
308-18.
92 | CO NTRO VERSIES IN THE D ETERMINATIO N O F D EATH
with what can and should be done before and after it has arrived,
has always been a problem for humankind, to one degree or an-
other. But the nature and significance of the problem have changed
over time, especially in the wake of technological advances that en-
able us to sustain life, or perhaps just the appearance of it,
indefinitely. G iven these changes and others that are yet to come,
the Council believes that it is necessary and desirable to re-examine
our ideas and practices concerning the human experience of death
in light of new evidence and novel arguments. Undertaken in good
faith, such a re-examination is a responsibility incumbent upon all
who wish to keep human dignity in focus, especially in the some-
times disorienting context of contemporary medicine.
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CH A PT ER SEV EN

Among members of the President’s Council on Bioethics, the pre-

Two such questions must be posed and answered in light of certain

Many members of the Council, however, judge that affirmative an-

Another argument, however, can be advanced to support the decla-

With this report, the President’s Council on Bioethics seeks to shed

* This understanding of medical futility has been developed in several papers by

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