There has been a good bit of debate lately in bioethics circles over the concept and proper definition of death. The disagreement is between those who think that the cessation of brain activity or ‘brain-death’ is sufficient for death, on the one hand, and those who think that brain-dead patients whose circulatory systems continue to function are still alive, on the other. Consider, for example, the recent tragic case of Jahi McMath. McMath suffered complications from a surgery to correct sleep apnea which resulted in cardiac arrest and her being placed on a ventilator. Shortly after physicians at Oakland Children’s Hospital pronounced her brain-dead and so legally dead. Her family, however, disagreed, and appealed to the courts for Jahi to be maintained via mechanical ventilation and PEG tube.
Although Jahi’s family disagrees with the claim that she is brain-dead (insisting that she is merely ‘brain-damaged’), suppose the Oakland physicians are correct in their diagnosis of brain death. Nonetheless, even after the pronouncement of brain-death Jahi’s body continued to exhibit the sort of homeodynamic equilibrium—at least for the time being, and with assistance from mechanical ventilation and other life-sustaining interventions—characteristic of living organisms. It was warm to the touch; her heart continued to pump blood through her veins; and so on. Indeed the bodies of brain dead patients have in some cases remained functional for weeks and even months, performing such surprising feats as undergoing puberty and even gestating fetuses. This has led certain physicians and philosophers to question whether brain death is really sufficient for death. Patients who are truly dead, after all, could not be warm to the touch or gestate fetuses. Could they?
There is a philosophical distinction that may be able to help us here. The distinction is between the person, on the one hand, and the living human body or organism with which it is intimately connected, on the other. While any definition of ‘person’ will be controversial, we can at least say that being a person requires having perceptions, emotions, desires, beliefs and other higher order cognitive and volitional states that make possible the things we typically find most meaningful: conversing with others, appreciating beautiful pieces of art, navigating a mountain trail, and so on. The distinction works by claiming that, while a person and her body are tightly connected, it is possible to have a living human body without that body supporting the bundle of higher-order cognitive and volitional functioning needed for personhood. Living human bodies can continue to persist even when the person is gone.
This is not a new idea. Many of us already want to recognize a time at the beginning of life when a developing fetus exhibits biological properties sufficient to make it a human organism without yet being a person. It is also natural to apply the distinction to patients in persistent vegetative states. Perhaps something like this is what’s going on in cases of brain-death as well. If, as seems very likely, the existence of the person—the center of perceptions, thought, emotions, and so on—depends on the health and well-functioning of the brain, when the brain is dead the person will no longer exist. But if, as we find in cases like Jahi’s, the death of the brain does not always suffice for the death of the body, brain-dead patients can continue to be living human organisms, despite no longer being persons.
The distinction can help in at least two ways. First, it may be able to show how both camps—those who think that brain-death suffices for death and those who deny this—can be correct, by forcing us to be more specific about the object of death: about exactly what we are talking about when caregivers pronounce patients dead. In short, brain-death might be sufficient for the death of the person (in which case proponents of the brain-death based criterion for death would be correct), and the cessation of circulatory function might be sufficient for the death of the human body (in which case proponents of the circulatory-based criterion for death would also be correct). The debate between brain-death-based and circulatory-based criteria for death may, in other words, rest on an equivocation that the distinction can help to dispel.
Second and more importantly, the distinction can help to clarify our duties to brain-dead patients and their families. It is very plausible that it is the person to whom caregivers (as well as non-caregivers and humans generally) owe the major bulk of their obligations. If so, we will owe far less by way of respect for autonomy, non-maleficence, beneficence, and so on to living human organisms who are not persons than we owe to human persons. This would allow us to accept (among other things) that it can be permissible to use the organs of brain-dead patients for transplant purposes and to discontinue the interventions that are keeping the patient’s body alive.
At the same time, while we owe the bulk of our obligations to persons, it also seems appropriate to accord living human bodies some consideration, similar to the degree of consideration appropriate for other non-sentient, non-conscious living beings. While the degree of consideration here may be quite minimal, it may at least ground a duty not to needlessly disrespect the living bodies of brain-dead patients, as well as perhaps a duty to allow the families of these patients a window of time (days, I would say, rather than months) to come to grips with the fact that the living body of their loved one no longer supports the person or what they care most about.