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Posted on January 27, 2019 at 11:08 PM
By Jon Holmlund

The Hastings Center shows Christmas
Day 2018 as the date of publication of its report,
“Defining Death: Organ Transplantation and the Fifty-Year Legacy of the
Harvard Report on Brain Death,” arising from a 2018 conference of the same
title at Harvard Medical School.  The
full contents are freely available at the link above.  The occasion for the conference was the 50th
anniversary of the 1968 report that defined brain death as one way to
determine, alongside the more traditional use of cessation of the heartbeat and
breathing, whether a person had died.  Report
contributor Robert Truog puts it this way: brain death can be thought of as
“permanent apneic [absence of breathing] unconsciousness.”

Subsequent to the 1968 report, the
Uniform Determination of Death Act, formulated in 1981, stated that a human has
died if there is either irreversible cessation of circulatory and respiratory
functions, or irreversible cessation of all functions of the entire brain,
including the brain stem.

Initially, according to one
retrospective, the 1968 report was motivated mostly by a desire to determine
when intensive medical care of a comatose person could be stopped and still be
consistent with the aims of medicine, and, indeed, avoid a murder charge.  Nowadays, we often associate the use of the
brain death criteria with the decision to harvest the decedent’s organs for
transplantation, but that is said to have been a secondary concern in 1968,
probably reflecting the state of organ transplantation at the time, as opposed
to after the ensuing 50 years of development.

One reviewer in the report worries
that concern about the use of brain death criteria has become “too
philosophical,” as it were; the 1968 conferees were not trying to define
death analytically, but prudentially, to guide the practice of medicine.  So contemporary critics shouldn’t be too
harsh in their hindsight.  However,
Robert Veatch counters that to ask whether the brain has irreversibly stopped
functioning is not the same as to ask whether we should treat individuals with
dead brains and beating hearts as dead humans. 
He further comments that, since the brain also acts in some sense as a
gland, secreting hormones, the current ways of determining brain death may not
take that into account.  He identifies
three broad approaches to defining death: 
circulatory/somatic, whole-brain, and higher brain.  He lists at least six current significant
disputes about brain death: whether patients and families should have the right
to refuse treatment; which criteria to use to determine brain death; whether
those criteria actually assess all the functions of the brain; whether doctors
apply the criteria accurately and consistently, without excessive error;
whether brain death as currently determined is truly irreversible; and whether whole-brain
criteria should be favored over criteria around blood circulation or criteria
that focus, more narrowly than whole-brain death, on higher-brain functions
including loss of consciousness and associated loss of integrated function of
body and mind.

Sections of the new report include
essays reviewing and offering a contemporary critique of the concept of brain
death, a discussion of whether “donation after [brief] circulatory
determination of death” (DCDD) is an acceptable approach to obtaining
vital organs for transplantation, whether the “dead donor
rule”—briefly, the idea that one’s organs should not be removed from one’s
body for transplantation into another person until that one (the proposed
donor) has died—should be followed, using brain death to inform law and public
policy, the future of xenotransplantation (specifically, transplanting animal
organs into humans, known as xenotransplantation), and reflections on the case
of Jahi McMath, the girl who was declared brain dead in 2013 after complications
of a tonsillectomy, but whose body was subsequently kept alive at her parent’s
behest until bodily functions finally failed to the point where she was
declared dead to the agreement of all concerned in mid-2018.

There is much to consider
here—particularly alongside the 2008 report, “Controversies
in the Determination of Death”
by the then-President’s Council
on Bioethics.  Candor requires that your
correspondent has in the past argued on this blog for the dead donor rule and
has expressed concern about potential overzealous use of the “DCDD”
approach by transplant surgeons in a hurry to procure organs for transplant to
a needy, waiting recipient.  But a
revisiting of the matter is in order, and a matter for future posts.  In the meantime, the cited reports are
readily available on the internet for review by all interested parties.

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