In recent years a radical change has taken place in the practice of medicine, a change still developing yet already grave with consequences both for the interests of each individual and for those of civil society as a whole. The clearest manifestations of this change have clustered around the manner in which it is to be determined that a person has died. From this perspective, the recent and proposed changes in law that have imposed "definitions of death", appear as attempts to have society accept and approve this reorientation of medical practice. What is not so clear is that society has understood the issue sufficiently to have given informed consent.¹ Though this change in medical practice is more extensive than the particular aspects connected with the determination of death, we must here limit ourselves to this narrower range of problems, which are already sufficiently complex and wide-ranging.

We have thought it important to write an article that would present with some fullness the issues which are involved in the new modes of declaring a person dead. All concede the complexity of these issues. Therefore, it is desirable to lay out coherently their intrinsic structure and to state clearly the nodes of interaction between the different disciplines that bear upon them.² Without a comprehensive and carefully structured overview, the different groups with interests in this discussion may continue merely to ignore or rail at one another and to speak rationally only within the limitations of their own group.

Part I sets forth the nature and structure of the recent change in medical practice and shows something of its social import. Quite apart from questions of practice, there is a serious theoretical question addressed in Part II: whether the criteria approved by the new statutes are medically correct and properly expressed, and also whether they truly correspond to a person's death. Since one of the major social determinants of law and of its suitability for a given people is their religious and moral convictions, in Part III we seek to find to what extent the new mode of medical practice and the legislation which embodies it are compatible with the major religious traditions of this country. Part IV considers various legal questions not dealt with elsewhere and presents what we regard as the minimum requirements for proper legislation in this domain.

•  I.

The law can be interested in a person's death for two very different kinds of reasons.

(i) A person's death represents a tearing of a large web of social relationships. Civil society has an interest in preventing this tear from causing a large-scale unravelling of further relationships and in promoting the process of healthy growth of new relationships. For this sort of situation, the fact that the web has been torn is of basic importance; but, ordinarily, the time of death can admit of some arbitrariness in its determination. No social harm is done if one criterion of death rather than another is used, e.g., for inheritance law, so long as some sound and definite criterion is established. Legal presumption concerning the moment of death is allowable in this context since no one's natural rights are put in jeopardy, except by accident, by any of the reasonable presumptions which could be made.

(ii) A person's death is the cessation of his own life among men and of his temporal existence in human society. The precise moment when his life actually ends is of paramount importance to this individual. From this point of view, there is no ground for legal presumption or for less secure criteria. His right to live as long as he can is his most basic right, grounding the possibility of all other rights.

The state also has a paramount interest in this matter. It is gravely obligated to protect the individual's right to live as long as he is able. This obligation is independent of any other interests, assuming that the person is innocent of capital crime. Further, the state is also obligated to protect all its citizens from those modes of dehumanization which arise from the holding of any innocent human life in contempt or as unworthy of reverence.

Any withdrawal by the state from the former obligation jeopardizes the lives of all members of society and breaks down the entire system of trust, assistance, and mutual support which enables the state to function. Any withdrawal from the latter obligation opens the door to a dehumanization which, if it happens in medicine, leads to the destruction of people's confidence in a profession without which society cannot well function.

If we choose to have at law but one basic understanding and meaning of the word 'death,'³ then it is the class of state interests indicated in (ii) above that must remove the degree of arbitrariness permitted by the class mentioned in (i).⁴ As a result, the present discussion is confined to the relationship between "brain-death" legislation and the second class of interests.

Our argument in the rest of Part I is that in view of a basic shift in the practice of medicine, manifested most clearly by a change in the way death is determined, any legislation which furthers, aids, or gives color of legitimacy to this change opens the door to dehumanization, in and through medicine, by allowing the lives of the innocent to be hazarded without necessity.

In Section 1, we briefly glance at the current legal situation concerning brain-related criteria of death. Section 2 then considers the change of medical practice alluded to above. Finally, in Section 3 we indicate some of the ways in which dehumanization is already occurring among physicians, lawmakers, and the rest of society as a direct result of this change.

1. Legislative and judicial action concerning the "definition of death" has increased substantially in the past few years. Approximately thirty states have adopted some type of statute recognizing "brain-death;" similar bills have been proposed in most other states. In the absence of such laws, the courts have uniformly shown themselves to be open to current medical opinion on the matter. Recently, some state supreme courts have adopted as law for their respective states one or other formula drawn from the statutes of other states, or from one of the model statutes that have been proposed, e.g., by Capron and Kass,⁶ the American Bar Association,⁷ the American Medical Association,⁸ or the National Conference of Commissioners on Uniform State Laws.⁹ A sizeable body of literature on the subject, mostly favorable to defining death by statute, can be found in medical journals and those devoted to medical ethics and law.

Most recently, the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, having "worked with the three organizations which had proposed model legislation" and with their endorsement, recommended the adoption of the following statute in all jurisdictions of the United States:¹⁰

Section 1. An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.

Section 2. This Act shall be applied and construed to effectuate its

general purpose to make uniform the law with respect to the subject of this Act among states enacting it.

Section 3. This Act may be cited as the Uniform Determination of Death Act.

The text of the thirty statutes mentioned above, along with a comparative analysis of their wordings, is contained in the Report of the President's Commission.¹¹ There seems little need simply to transcribe that material here.

2. The first "brain-death" statute was adopted in 197O.¹² How is it that only recently we have come to need such statutory "definitions" of death?¹³ The common response seems to be: (i) Medical advances have rendered our earlier notions (or criteria or tests or definitions) of death obsolete. (ii) The courts, with far less competence than legislatures to decide the underlying social, philosophical, and religious issues, are an inadequate mechanism for bringing about updated notions, criteria, tests, or definitions.¹⁴

The second, and essentially independent, part of this response is basically sound and does not need to be discussed here.¹⁵ The first proposition, however, though seemingly the more obvious, is incorrect.

During the past decade and a half, most articles on dying and death have pointed to major improvements in medical technology, especially those intergrated into life-support systems, as the source of the problems which make a new "definition" of death necesary.₁₆ It is repeatedly stated that the old methods for the determination of death have been rendered obsolete:¹⁷ what those methods implied was failure of the brain's functioning; hence, a "redefining" of death in terms of irreversible cessation of brain function would coincide with the older criteria wherever they were valid and would solve our technologically created problems in those cases where both science and common sense show the older criteria to be inadequate.¹⁸

We have been told that it is now possible to sustain, for months or years, a "mechanically perfused cadaver"¹⁹ that we are only pumping blood through a mechanically ventilated corpse.²⁰ Through the power of our technological means, the dead may now appear as if alive. It is contended that this body with its regular pulse, its near-normal warmth and coloration, its continuous output of sweat and urine, is not a body at all but a carefully and expensively maintained corpse.²¹

Those with an eye for literary structure may wonder about these assertions. Stylized and highly repetitive, they rarely show freshness of expression or other evidence of personal rethinking or assimilation. The mere multiplication of such assertions does nothing to strengthen the position they indicate.

Further discomfort with these statements arises when one reflects that technology no matter how complex, of itself cannot pose moral problems. The problems come from ourselves as we ponder the uses we might make of our technological skills. Current problems concerning the time of death come not from new knowledge, skills, and inventions but from our new "needs", i.e., the new powers have roused in us. It is we who, for motives of every sort, wish to declare these bodies dead so as, e.g., to render automatic the painful decision to cease treatment or to utilize parts of "dead" bodies in ways now possible for the first time.

It is generally acknowledged that the call for new "definitions of death" has arisen in order to clear away the legal obstacles to transplanting vital organs or to excising them for purposes of research immediately upon the occurrence of death.²² Few writers advert, however, to the fact that these transplant and research activities bring with them a major change in the very concept of medicine; still fewer notice that it is this change which induces most of the problems of which we have spoken.

A first indication of this profound change can be obtained from a careful reading of the full text of the Uniform Anatomical Gift Act and of a number of related statutes passed or proposed since.²³ The trend is clear: a person's permission to make use of his body after his death is becoming, at best, an obstructive formality. His next of kin, or even the municipality, may proffer permission in his stead; all that is required in order to use the body is lack of clear evidence of refusal. Little provision is made for discovering whether such evidence exists.²⁴

Quite apart from the possibility of abuse, such practice shows two things: a) it is increasingly taken for granted that, once a person is truly dead, it does not matter to him what is done with his corpse; and b) as far as society is concerned, it is being accepted that the living are free to utilize each human corpse for their own purposes and convenience; indeed, that they ought to do so provided that they give no needless offense to other people. The former assertion is repugnant to many on religious grounds, while the latter assertion is a moral principle that, to our knowledge, is wholly new to the world save among some few cannibals of the Southwestern Pacific.²⁵ The authors hope to discuss this matter in detail elsewhere; here, it is sufficient to note the fact, for it is clear evidence that, consciously or not, medical practice has changed in its most basic relationship with society.

Another indication of a change in medical practice is the tendency to consider determination of death as the automatic result of the verification of one or more criteria of death.²⁶ Yet, there must always be an experiential context within which the various criteria obtain their significance and without which one can always construct exceptions to the formally specified criteria.²⁷ For example, despite frequent assertions to the contrary, there was probably never a time when irreversible cessation of breathing was taken by itself as an indication of death. Even primitive man must have known that a sharp enough blow to the solar plexus could produce a lethal cessation of breath. Yet, if the person so struck had a sword in hand, he would not have been considered safely dead till he had lost consciousness and fallen immobile.

Recent studies confirm that never heretofore have physicians as a group felt they had a context-free general criterion, sets of specific criteria, or tests for death.²⁸ The establishment at law of a general criterion, though permitting contextual treatment of specific criteria and tests in accord with currently acceptable medical practice, supposes that the general criterion itself is wholly adequate and context-free. Yet, the mere fact that the putative, earlier and accepted general criterion,²⁹ is itself being challenged by those favoring brain-related criteria, surely suggests that to legislate or adjudicate such a criterion, especially when medical opinion is far from unanimous on the matter, is at the least premature.

One might reply that no physician would apply brain-related criteria in the manner of a checklist, without regard to medical context. We grant that these criteria are rarely applied without any regard for context. Yet the Minnesota and the British criteria, to give the most striking examples, are sufficiently separated from context to allow about one of every twelve people to whom they are applied to have vital organs removed when their cerebral cortex (the part of the brain associated with sensation, feeling, thought, and other conscious activity) is alive and active.³⁰

A third indication of radical change can be found in the way in which methods for deciding a person's death have altered in direction. Until recently, the only medical reason for changing the criteria and tests used in the determination of death was the desire to save lives that would have been declared extinct by older norms but which more recent experience suggested might still be present. Admittedly, convenience for the living was also a motive in some of these changes; but such convenience was easily overridden whenever there was thought to be reason to fear that one might bury someone alive, as the institution of "waiting mortuaries" in the 18th and 19th centuries shows.³¹

But, the new, brain-related criteria were not introduced as more stringent indicators to physicians that, even though all hitherto useful early signs of death are present, the patient might not be dead at all and that the physician should work on him longer or at least wait a while longer before burial. Rather, they are presented as ways of determining that someone has died even though the older general criteria have not been met. One can be adjudged dead by the new general criteria when use of the older ones would indicate that he is still alive.

It is not hard to discern the over-all pattern these changes form. There was a time when a determination of death, however arrived at, was concerned with only one problem: how to be sure that a person would not be buried or cremated alive, or, more generally, that a still living person not be treated as a corpse.³² At the conscious level, at least, the whole thrust of the older ways of determining death was to protect the dying person from being killed unwittingly by the living.

Premature declarations of death have always been possible. Yet the goal of medical practice in establishing ever more accurate ways to determine death has been to make sure that a person who was still alive would not be treated as if dead. Mistakes could still be made in either sense. Despite one's best efforts, not only could one judge someone who is still alive to be dead but, at least in principle, one could not judge a person to be alive who had already died. Before the advent of the ventilator and more complex life-support systems, the latter mistake was not only so rare as to seem impossible but of no importance if it did occur. Hence, all earlier effort to determine accurately the moment of death was consistently oriented in the single direction: to preserve human life against a death-dealing mistake.

The proposed brain-related criteria are not merely new criteria but are intended to be used to prevent anyone from being treated as alive when he is already dead. Physicians are now concerned with preventing the possibility that present-day life-support systems might mask death and cause a corpse to mimic-life at the expense of the living, in suffering and in money. A determination of death is sought which will enable a physician to treat a body as e earliest moment possible. Not only the desire for transplantation of vital organs but the usefulness of research in such rapidly disintegrating parts of the body as the lungs and the liver urge him to make full use of the still living parts of the body which has just been declared dead.

In this situation, also, mistakes can be made in both senses. Here, however, a mistake made in the sense opposite to the intention of the criterion--by judging a person to be dead when he is still alive--is not, as yet unthinkable. Nor is such a mistake unimportant should it happen. Further, the effort here to determine accurately the moment of death is ambivalent, intended indeed to avoid treating the living as if dead but designed primarily to avoid treating the dead as if alive and--more important ambiguity still--consciously directed to making certain that the desired organs are alive.

The older methods for determining death (and possibly some newer ones) serve well enough if a mistaken determination of death has no other result for a dying patient than his being allowed to die without further treatment. Thus, in the past, there has been no outcry at the fact that it is non-physicians who determine the occurence of death in the great majority of situations, even though the doctor must confirm the fact of death and sign the death certificate. Nor has the wide variation in instrumentation and in the concrete ways of declaring death in various parts of even a single hospital been seen as hurtful or unjust since there seemed to be no likelihood of harm to the patient from his being declared dead.

But the new criteria (and even the older ones, as will be seen in Part II) are seriously inadequate if a determination of death is to be the signal for excision of a person's vital organs, for immediate autopsy, or for early embalming or cremation-actions which are certain, if a mistake has been made, to kill the still living patient.

3. If one is about to do something that will kill a person, should he not be dead, or that will cause him acute pain or anguish, should he be utterly unresponsive but not utterly unconscious, then ascertaining his death requires a stronger and more deeply humane concern for his welfare than if the only consequences of an error will be cessation of treatment and eventual, unobserved expiration.³³ Yet, just where a greater humanity is called for, less is offered.

a) In the medical literature, there is abundant evidence of unseemly haste to declare someone dead. For example, articles on the development of clinical tests and specific criteria for "brain death" have tended to confuse evidence that someone is about to die with evidence that he is already dead.³⁴ As Molinari appositely remarks of this tendency, "prediction of a fatal outcome is not a valid criterion for accuracy of standards designed to determine that death has already occurred."³⁵ Moreover, when the question is whether someone may now be diagnosed as dead as a prelude to potentially lethal action upon him, it is less than useless to be offered a prognosis, even an infallible one, of an eventually fatal outcome; no one with useful organs will be allowed to live that long. Absence of any possibility for recovery is not the same thing as death, though death assuredly implies such absence. Certain knowledge that complete collapse of the organism will occur in a few hours or days is not equivalent to knowledge that the patient is already dead.

In an earlier article,³⁶ the authors pointed to the diagnostic use of the EEG as but one of many areas where haste might prove hurtful. It has been reported³⁷ that transplant teams often entreat encephalographers to certify electrocerebral silence on the basis of a single recording, despite the likely breach of the latters code of professional conduct, just as predicted some years ago by Toole.³⁸ black's excellent study of these issues,³⁹ however, suffices for this area.

b) There is the growing tendency to "be practical", i.e., to use seimpler or easier sets of specific criteria, even when these are known to be less reliable, or to use more accurate ones, even where the tests employed can jeopardize the life of the patient. Thus, the invasive nature of angiography⁴⁰ and the risks involved in its use on a patient near death seem to be generally acknowledged. One risks inducing, e.g., by arterial spasm, the fatal condition one was seeking merely to demonstrate if present. Yet, "in many clinics, especially in Europe, cerebral angiography...is routinely used."⁴² May one rightly seek to discover whether a patient has already died, using techniques which have a non-negligible likelihood of killing him, if he is not already dead? Yet, techniques for ascertaining cerebral blood-flow that are of negligible risk seem to be less than conclusive if one is concerned to establish destruction of the entire brain.⁴³ If inconclusive, vital organs may not be taken on this uncertain basis. But, in fact, it has yet to be established under what conditions the complete absence of cerebral blood-flow will be fatal.⁴⁴

"An Appraisal of the Criteria of Cerebral Death",⁴⁵ speaks of prerequisites to be met if use of the criteria is not to lead to an erroneous diagnosis of a dead brain. Having mentioned the factors which could lead to such errors, the "Appraisal" remarks: "However, the practicality of eliminating the presence of these factors may be questioned on the basis of the findings of this study."⁴⁶ Then, to avoid incorrect diagnosis due to these and other uncertainties the "Appraisal" proposes "as a safeguard" that a test of cerebral blood-flow be performed--a test either hazerdous to the patient or less than certain--"in all cases in which an early decision of cerebral death is desired;"⁴⁷ words that seem to apply primarily in cases of organ transplants or immediate autopsy. Yet, even those as sympathetic with the move toward "brain-death" as those at the Hastings Institute were concerned that no considerations of any good other than the patient's ever be allowed to affect the choice of one's criteria of death.⁴⁸

Again, there has been a movement from the more exacting⁴⁹ to the less demanding.⁵⁰ More serious has been the continual spreading and ramifying of the original Minnesota criteria,⁵¹ despite abundant evidence that they are patently unreliable for diagnosis, as distinguished from prognosis, of death.

Thus, when the Harvard or the Japanese⁵² criteria are used, the number of patients who meet the criteria (and so are to be declared dead) is small compared with the number showing unresponsivity and apnea,⁵³ which are the prerequisites for use of the criteria. A.E. Walker remarks: "[These two sets of criteria] are so constrictive [sic] that only a very small percentage of cases can meet them and qualify as cerebral death. Obviously, such criteria have little value in routine practice." However, Walker goes on to say of the Minnesota criteria: "8% of the patients would be classified [by these criteria] as cerebrally dead in the presence of biological activity in the EEG, certainly an anomalous and undesirable situation."⁵⁴ The general public, duly informed of this situation, might well use stronger language.

To consider the matter more closely, take as an example a case in which the brain stem is destroyed without direct damage to the cerebtal cortex. The patient, though probably capable of emotion may be unable to manifest any clinically observable signs of such brain functions. An EEG, however, can make clear what the situation is.⁵⁵ Yet, the Minnesota criteria for "brain-death" and the many sets of criteria derived from them refuse to require the use of the EEG.⁵⁷ If, then our society is willing to allow the EEG to be optional when vital organs are to be excised from patients declared dead on neurological bases only, we are consenting to the killing of patients for their organs--though the physician would never know which one of each twelve patients he had killed. Can the proposed or current legislation on "brain-death", couched in terms of "accepted", "ordinary" or "usual and customary" standards of medical practice, offer safeguards against this already common practice?

Loss of apparent consciousness⁵⁸ for a few hours due to demonstrable destruction of the brain stem is widely considered, then as a license to declare a patient dead and to treat him as a corpse. He may then be buried, although burial need not be immediately envisaged. There are too many profitable things to do with the still functioning bodies of "dead" persons, things that could eventually make extraction of their vital organs an act of mercy.⁵⁹

Doubtless, the motivation behind the UDDA and other "definition-of-death" statutes is precisely to prevent such abuses. But, as will be shown in the remaining parts of this paper, the statutory results do not measure up to the high quality of the motivation. And-our present point-- legal validation of less reliable criteria in just those cases where greater reliability is essential gives up in principle the entire battle. For in a potentially lethal context, to accept less certain criteria when better ones are at hand is to shift from a primary interest interest in and obligation toward one's patient with respect to his most basic right, that of life itself (without neglecting his social context and relationships), to a primary interest in and obligation towards the supposed good of society,⁶⁰ even at the risk of the patient's life.

'Risk' is used advisedly, since if one is concerned only with avoiding premature determination of death, there already exist totally acceptable and noncontroversial ways of making that diagnosis (though there are no infallible, context-free criteria). Only if one is interested in something other than certitude about the patient's having died is there any need for a new criterion of death or any reason to use one. Given the universally admitted difficulties in applying the new criteria, this "something other" is neither a greater ease in use nor a greater security in application to individual cases nor anything else destined directly to the good of the patient.

Hitherto, when hazardous treatment was contemplated, the risks and advantages of treatment and of the status quo were both assessed with respect to the same person, who then chose one or other for himself or had a fair choice made on his behalf by those closest to who a statutory protection for the use of brain-related criteria of death are urging that it be made legitimate for the physician to take needless risks with one patient's life (for, the standard methods of determining death remain valid and can always be used) for the sole reason of some possible good for the patient's family (as, for example, decreased suffering or expense), or for another patient (as with organ transplants), or to the physician himself (as in avoidance of suits.)⁶¹ If one may risk one'spatient for the possible good of another, why not, even more commendably, for the good of all mankind? Indeed, it is to this end that immediate excision of vital organs for research is usually directed. What obstacle in principle remains to undertaking medical research on a patient, not for his good but for Humanity, a faceless and featureless abstraction no better than the Race or State in whose name such research was carried on by those condemned at Nuremberg?⁶²

If this seems excessive, recall that many lawyers and physicians are already arguing in favor of far worse things than the current statutory definitions of death. They wish to speak of one's patient as "humanly dead" when he has ceased to be capable of "human activity" or when no signs of capacity for social interaction with his environment can be found.⁶³ What these writers mean by "human activity" is, exlusively, some manifestation of thought or feeling⁶⁴--as if our entire brain were not human, as if any of our activity, even the growth of our toenails or the movements of our bowels, were not human, albeit analogous to what takes place in animals or even plants. These authors seem convinced that empirical death is, as such, religiously, morally, legally, and medically unimportant in comparison with the signficant fact of the irretrievable loss of one's most characteristically human functions of thought and feeling. It is contended that those who are yet alive (in the ordinary sense) but who are no longer capable of the higher human functions should be treated by society and the law as if they were dead. In addition to those empirically dead (e.g., with rigor mortis), they desire that one or more categories of those still living but "as good as dead" be converted by philosophical arguments into categories of "those already dead." Indeed, some argue that death would be better for the patient than a comatose state."⁶⁶

The religious and moral hearing of such arguments will be touched on in Part III. Here the matter is addressed only to show that there is no natural stopping point once one has accepted a definition or general criterion of death based on the irreversible nonfunction of the brain. It seems certain that, soon after any universal acceptance of such a definition or criterion, the drive for "cortical death" will be fully underway, and plausibly enough, once man has been reduced to his functions.

•  II.

The scientific weakness of the new "brain-death" criteria can best be seen in their persistent but false assumption that there is no practical difference between total destruction of the entire brain and irreversible cessation of total brain function.⁶⁷ Yet, both the religious and legal arguments favoring such statutes require for their legitimacy that total destruction and irreversible nonfunction be the same thing, and that each be equivalent to the death of the human person. We look first at the supposed equivalence between total destruction and irreversible loss of function and then consider whether either can rightly be considered equivalent to the death of the human person.

1. Having dealt with the relationship between destruction and cessation of function in some detail elsewhere, here we may be brief. The central difficulty with an identification of cessation of function and destruction is: any brain that has been wholly destroyed has irreversibly ceased to function; but irreversible cessation of function need not imply destruction.⁶⁹ For example, a number of substances are known, e.g. barbiturates, which can completely suspend the functioning of the brain yet need do it no harm at all. Not many years ago most drug-induced suspensions of function were medically irreversible.⁷⁰ Today, however, if proper life-support measures are taken, a person can be brought back to health--without any brain damage whatever--after many hours and even days with what is clinically a totally non-functioning brain.

Note that, when barbiturate poisoning was strictly irreversible, the cessation of function was, it is now known, separated in time from the resulting destruction of the brain. The brain ceased to function, the person stopped breathing, and cardiac arrest soon followed. Even then, however, the brain was slow to suffer damage for, ironically, we now know, barbiturates protect the brain from the effects of anoxia. Today, it is evident that people declared dead because of barbiturate poisoning had, in fact, living and potentially resuscitatable brains for perhaps an hour after their hearts had stopped. Yet, had our present statutes then been in effect, since this cessation of function was at that time total and irreversible, such a person could, while still alive and capable of recovery, have had all his vital organs removed.

Many other types of previously irreversible cessation of brain function have eventually yielded to medical progress and been released in certain situations. In each of these cases the statutes under discussion would have allowed the killing of those still alive.⁷¹ There remain further types of irreversible cessation of all brain functioning. But by what right do we conclude that medicine will never progress to the point of reversing any of these?

Any time such a reversal takes place, at least one person's life is saved which would have been destroyed had a physician taken his vital organs after a declaration of death in full accord with the law.

We agree, of course, that if someone's brain stops functioning, something is manifestly wrong; and the details of the cessation of function can he of considerable diagnostic value. Complete cessation of function, especially when it seems irreversible, is an extraordinarily important element among all those other elements that are needed in a given context to demonstrate the destruction of the brain. Also, some of the better sets of criteria for "brain- death", e.g., the Harvard criteria, are among the better indicators of destruction of the brain and not of mere cessation of function. On the other hand, much work remains to be done medically before total destruction can be shown by thoroughly reliable tests that offer no risk for the patient.

Another difficulty in the use of irreversible cessation of all functioning of the brain as a general criterion is that such a criterion is not yet universal in its range of application. Current criteria are so manifestly unreliable for babies, children, or even younger adolescents,⁷² that explicit exceptions are generally made to their application to this age group. On the other hand, complete destruction of the entire brain would apply as rigorously in these cases as with older people.

2. Even if all "brain-death" statutes were amended so as to refer no longer to irreversible cessation of all functioning of the brain, but only to its total destruction, a further question needs to be answered: is the total destruction of the entire brain an adequate criterion of personal death; i.e., is it true that whenever the brain is known to have been wholly destroyed, the person is, by that fact, known to be already dead? Or we may go further and ask: Is destruction of the entire brain the same thing as the death of the person.

There is little doubt at present that complete destruction of the entire brain at the least, accurately predictive of death. But whether such destruction can be found only in those who have died or even whether is is death depends on whether the physiological unity of the body necessarily ceases with brain destruction or whether that unity is thereby merely gravely undermined and weakened until, following cardiovascular collapse, it disappears.⁷³

To get an answer to our question, let us consider the relatively uncomplicated case of an individual whose brain has been badly damaged, but the rest of whose body has not been otherwise impaired. He is in deep coma and has been placed on life-support systems. Several neurologists, each using his own preferred set of criteria, have declared that this individual's brain has "irreversibly ceased to function. Before attempting to discuss life and death, let us examine this case in two different situations:

a) If nothing is done to ventilate⁷⁴ this "patient",⁷⁵ then, since no one with a destroyed brain can in any degree ventilate himself, the respiratory processes in the lungs will quickly cease. In a matter of a few minutes, the heart will cease to beat and the usual signs of death will appear in due order.

b) If, on the other hand, suitable ventilatory support is provided and the usual methods of maintenance for one in a deep coma are provided (such as intravenous fluids and nourishment, drainage of the bladder, prevention of bed sores, etc.), then this "patient's" body will maintain itself in a state in which the heart beats, the lungs exchange carbon dioxide and oxygen, the kidneys put out urine, the body temperature remains well above ordinary room temperature, sweat is secreted, liver metabolism continues, and movements of the limbs, due to spinal reflexes, persist. Nonetheless, all experience until now makes it clear that some destructive process is at work in such a body. Within a week,⁷⁶ usually in less than 72 hours, regardless of all efforts to prevent it, cardiovascular collapse will take place, all respiratory processes will cease, and all the usual signs of death will appear.⁷⁷

Thus, though it requires great skill and experience in a highly competent physician to diagnose accurately full destruction of someone's brain in this case,⁷⁸ it requires very little skill to perceive the change that takes place when the body with the destroyed brain suffers intractable cardiac arrest. Not only the nurses, but even a layman can tell whether the lungs of a "person" on ventilatory support are still exchanging gases (though a layman would put it in terms of skin-color, e.g., pink, bluish), whether his heart is still beating, whether urine is still collecting in the plastic bag at the bedside, whether the "patient" is still sweating a bit, etc. Thus, there exist two medically different, easily distinguishable, states: i) that of a person whose brain has been destroyed but the rest of whose body is still alive and functioning as a single organism;⁷⁹ and, ii) that of a person who has suffered, in addition to brain destruction, intractable cardiovascular collapse and whose other organs are rapidly deteriorating, without further interaction with one another.

On the basis of these facts, the question may now be addressed: is destruction of the brain identical with the death of the person? The state designated (ii) above, which occurs after a few minutes in situation a) or after a few hours or days in situation b) is identical in all respects with the state ordinarily called 'death'. But the original state (i) of the patient, in which only his brain was assumed destroyed, is physiologically a wholly different state from death unless one chooses to use 'death' equivocally.⁸⁰ It is hard, then, to see how the law could permit these two medically different states to be identified with one another. Since there is no biological

basis whatsoever for identifying a "brain-dead" person with a cadaver, such identification can only be made on highly debatable philosophical grounds; these are hardly the proper basis for a fundamental change of law.

Ordinary language would designate state (i) as that of a dying person, still living but fatally injured, already at death's door. Biologically, the body with a dead brain is a single, unitary, still functioning, but mortally damaged organism. If, on the contrary, the simple fact that a patient's brain has been destroyed proves that he has died, then what do we call the process which leads from "death" to death? Does he die twice?

Most of those who have considered the relation between state (i) and state (ii) fall into error at this point because of their underlying assumption that the artificial maintenance of vital signs provides only a simple mechanical substitute for the functions in question. In these cases, it is thought, there is no real respiration of a living organism or real organismic circulation. Because these functions are artificially stimulated or supported, it is assumed that no true, vital contribution is being made by the organism as a whole and that only the artificial support system (mechanical and chemical) is at work.⁸¹

The error in this assumption can be most easily perceived if one considers a "patient" in state (ii) who is still kept on the ventilator, whose pacemaker is still active and in place, who is still receiving vasopressor drugs, etc. Here, despite this artificial movement of the "body" and activity upon it, no organismic vital signs are present. Apart from isolated cells or tissues, there is nothing happening but progressive disintegration. On the other hand, patients in state (i) manifest the ordinary vegetative functioning of the organism as a whole until such time as the loss of brain regulation and the effects of brain disintegration (a chemical matter as well as neuronal) stop these functions through destruction of their underlying systems. Then, and only then, is the patient dead in the sense in which ordinary people and the law, until recently, have used the term.

What matters, evidently, is not the artificiality of the aids to vital functioning but whether the body is still a single organism whose vital parts, however supplemented from without, still act in basic union and intercommunication with one another. Thus, when seeking to define death, one should speak less of tissues or organs and more of systems. For, if the heart is destroyed but, by artificial means, circulation is for a time maintained, the patient can continue to live. But, if the circulatory system is destroyed, there will be no circulation and death will ensue. So, also, if the respiratory system is destroyed, no respiration can take place and the organism will disintegrate. If the central nervous system is destroyed, neurological control from the brain is irretrievably stopped.

Let us return to the question: Are there two kinds of personal death? If the answer to the latter question is affirmative, then, since the two "deaths" of a single individual may be separated by several days, would it not be better to recognize them both at law, speaking unequivocally of "those with destroyed brains" and "those who have died" and construct appropriate legislation for dealing with each?

This last suggestion is, unfortunately, not likely to be accepted. For, a major purpose of "brain-death" criteria is, very simply, to make available "corpses" that are alive, living bodies that may be dealt with as cadavers. Walker phrased the matter with chilling accuracy when he called for "a set of criteria that would identify a dead brain in an otherwise living body."⁸² This is not shock-rhetoric but coldly practical. As but one example, in the George Washington University Hospital, the hitherto young and healthy who have been declared "brain-dead" are placed, in order to preserve their organs till transplantation, on life-support systems which are refused, rightly enough so far as we know, to those dying of age or disease and in hopeless coma.⁸³ What will those lamenting the indignity done by "perfusion of mechanically sustained cadavers" say about these situations, made possible only by the "brain-death" criteria they advocate?

While the assumption that there might be such a thing as a live corpse might be valid, the burden of providing irrefutable and certain proof rests entirely on those advocating the new criteria. But is it not possible that, in their desire to alleviate human suffering, they have been forced to accept assumption rather than proof because what they seek does not in fact exist?

3. Nontheless, some highly competent physicians assert that death of the brain is death of the person.⁸⁴ The only direct evidence that could support this assertion, however, unless they are speaking as linguists or philosophers, would be that which would show, physiologically, the destruction of the brain to be the dissolution, destruction, or disintegration of the basic functional unity of the body. Though as just shown in Section II 2, no such evidence is generally at hand, the indirect arguments that can be offered are formidable:

a) For millenia, beheading has been seen as the most direct method for "putting to death", indeed, to be simply equivalent thereto. If the head of someone guillotined has sometimes seemed to be alive, even conscious, for a brief moment, this is due simply to the fact that, under the circumstances, the brain does not disintegrate instantly. Further, today, when microsurgery has succeeded in reattaching to the body completely severed members, which then live and function normally, there would seem to be no problem in principle with so reattaching a severed head to its body that the person would recover fully from his decapitation--provided only that the brain had not disintegrated or been too severely damaged in the process.⁸⁵ In ordinary life, if someone's head is completely smashed in an accident, there is little debate about his being dead; and all parties consider him to have "died instantaneously".

In response, however, it may be noted that decapitation is not the cutting off of a brain but of a head, with all its arteries and veins, bony and muscular structure, and upper spinal cord, so that neither literal beheading nor its equivalent through having one's head smashed in an accident is the same as "brain-death". In decapitation, the heart quickly stops and the rest of the body begins to disintegrate. By no means is the brain alone affected. Indeed, one could argue that death by decapitation comes primarily from cardio-respiratory failure.

b) Over long years, a great mass of data has been compiled concerning people otherwise sound of body, with localized brain lesions. It has been possible to show that destruction of a particular portion of the brain brings about one or more highly specific losses of function in unimpaired parts of the body, or if the brain is uninjured but one or more of the neural pathways connecting it to other parts of the body is severed, similar losses of function and/or sensation or awareness occur in those portions of the body. All this would seem to indicate that, if the whole brain is destroyed, all sensation and most bodily functions are destroyed with it.

The weakness of this argument lies in the fact that the brain does not directly control all bodily functions; still less does the brain make all these powers be. For example, the heart will, if properly "nourished", continue to beat for several hours, whether or not it is connected physically with the brain. Heartbeat is modified by the brain's action, not caused by it. The lungs respire with or without the brain, although the brain makes the rib-cage rise and fall with suitable speed. It then, the brain does not make these activities take place, does not even control all of them, how can one assert with such assurance that the brain alone makes the whole body alive, that loss of the brain is the destruction of the entire organism?

Whether all sensation ceases is also not clear.

[T]he higher level structures [of the brain] control the lower structures not by turning them on when needed, but by inhibiting their actions except as desired... [I]f a higher center is suddenly damaged, the older, more primitive units which it normally holds in inhibition are released to function on their own. Thus damage tends not to eliminate vital functions, but only to downgrade the complexity with which the job can be performed."⁸⁶

But there seem to be fairly clear indications that sensation of some kind, including pain, is present even in those lower animals which have no "brain" of higher structural complexity than our spinal cord. Hence, in someone whose brain is wholly destroyed, the rest of his neural network, if undamaged, might be uninhibited to feel pain or other sensations, though he would have no means to manifest this fact. This would seem a fortiori to be the case if only the higher parts of the brain, e.g., the cortex, are destroyed.

No firm counter argument can be drawn from the total lack of pain and other sensations felt by those whose spinal cord has been severed just below the brainstem. In these cases, the brain is still fully active, higher levels still inhibiting the lower. Admittedly, the spinal-cord system under these conditions must be neurologically uninhibited by anything taking place in the brain. The notoriously intractable problem remains, however, to know how sensation and consciousness are mediated by the brain and by the rest of neuronal network respectively.⁸⁷

c) As mentioned, once total destruction of the entire brain has occurred, life-support systems cannot maintain in the body even the appearance of a single, organismic life for more than a few days to a week. Accordingly, it is very plausible to argue that from the time of the destruction of the brain, the "body" is in reality only a collection of parts, a set of remains, not a unitary being but an aggregate of diverse entities. As Korein remarks: "The premise underlying the concept of brain death is that there is a single critical vital system, the brain, whose irreversible destruction is both a necessary and sufficient condition in considering an individual as dead."⁸⁸

In response, it is important to note that this argument is not a medically grounded assertion that, physiologically, the "body" of a "patient" whose brain is dead has no vital unity at all. Rather, it is an attempt to specify that the vital unity provided by the brain is of such importance conceptually that no other vital unity of the "body" is significant.⁸⁹ But, in fact, there is an overall structural unity given by skin, skeleton, ligaments, muscles, etc. (which also serve, in an indispensable way, physiological integration). An active "communication" between parts of the body--and thus the unity that makes this a single organism--is carried on also, and substantially, by the circulation of blood with its chemical transport, by "vital interchange" (e.g., flow of lymph and other body-fluids, formation and circulation of corpuscles and platelets, reduplication of the individual's own biologically specific DNA in cell division, etc.), and by the neuronal activity of the peripheral nervous system and of spinal reflexes. To identify the person with his brain on this basis would be like identifying the zygote with its DNA. The "director" elements in either case are crucial for continued life of this individuated whole. Yet, in neither case, are they the sole source or means of interconnection or intercommunication among the remaining portions of the organism. The continuance in being of these "director" elements, therefore, no matter how necessary, cannot be simply identified with the life of the whole.

d) Finally, the human person is unique and irreplaceable. Whatever, therefore can be removed from a living person without destroying him, whatever may be replaced by machines, prostheses, biochemicals, or organs transplanted from other people must be either unnecessary to human existence or unessential to the life and being of the individual person. But, so the argument continues, any part of the body, apart from the brain, can in principle be simply excised or replaced without immediately causing death or other change of personal identity. Yet, no one seems willing to entertain seriously the idea that a patient with someone else's brain transplanted into his head would be similarly unchanged. Nor even in concept, can one think how to replace a person's brain with a machine, say a computer matched to all the cranial nerves, in such a way as to leave us with the original person. The living brain, then, must be the person--or at least the locus of the person since it is the only portion of the body which is absolutely and totally irreplaceable.

This argument is strengthened by the fact that the Russians have severed a dog's head and maintained the head alive and functioning. In such a state, the head will still recognize with affection his master and show other signs of being the same dog he was before he lost his body. On the other hand, who would say that the decapitated body, if maintained through adequate perfusion and ventilation, is still that dog? If all but the brain can be removed without destroying the person and if that which is removed can be preserved without being the person any longer, what difficulty can there be with identifying the person, at least as a physical entity, with his brain? In other language, if the soul is always to be found in the portion of the body which includes the brain, even in the limiting case in which all but the brain is cut away, how can one say that the same soul (for if it is a different one, it is not that of this person) is simultaneously vivifying the disconnected remains of the rest of the body?

One may point out in reply that, one may, but need not, say that. Noting the successes of microsurgery that have reattached fingers, hands, or other members of a human body so that they once again live with the life of the whole and function as parts of the entire organism, one might say that, even if the human soul is to be found only in the severed head, the remainder, like the finger or hand, lives as an animal organism but is capable revitalization by the human soul if rightly rejoined to the head. Alternatively, one might say that the human soul is immaterial in itself and, therefore, not intrinsically extended in space. Hence, though the imagination may have problems with it, there seems to be no intellectual difficulty in conceiving the single soul as simultaneously animating the two disconnected portions of the human body.⁹¹

Further, the logical flaw in the argument can be easily seen. Robert's living and undamaged brain is, by supposition, a living though badly damaged Robert. But there is no way in logic to convert that proposition to one asserting that if Robert's brain is dead, Robert is dead. Even if one concedes that the human person is still present where nothing of his body remains save the living brain, one cannot make the living brain and the person identical. For, whatever parts of the body are still alive and properly conjoined with the brain are all parts of the human person. A hand is part of the person, even though the person will not be destroyed merely by the destruction of the hand.⁹²

Moreover, impossible as it clearly is at present, there seems to be no medical proof of the impossibility in principle of total regeneration of a person's brain, since each cell of the person's body (germ-cells apart) contains all the genetic information that was needed to produce his brain in the first place. Much effort is being expended, with some success, in seeking to learn how to produce regeneration of axons. Regeneration of the cell bodies of neurons in the central nervous system is, at present, no more than a dream. Yet, the regeneration of the "brain" of planarians, of the spinal cord in salamanders, and the like, suggest at least that apodictic statements in this matter are not yet adequately grounded.

Finally, simpler animal forms with more primitive "brains" suffer relatively little loss of function when their "brains" are destroyed. In increasingly complex animals, however, the brain becomes ever more important. But at what point does it become the whole animal--in the sense that its destruction is the death of the animal and not merely the cause of its dying?

In conclusion, the indirect arguments in favor of identifying total destruction of the entire brain with the death of the person are weighty. Yet none of them is able to make its point conclusively; not one is decisive. The issue is not settled and further work is needed before there is a basis for a secure consensus by the entire medical profession. Short of such a consensus, the establishing of such an identity at law is, scientifically speaking, premature. To force upon society a premature resolution of a situation of doubt when the lives of the innocent are the stakes is, at best, seriously irresponsible.

•  III

If we know that someone's brain has been destroyed, then we have a certitude as great as any in medicine that this individual will die shortly and is already incapable of any least, even momentary, improvement. If he has freely chosen to donate his cadaver or his vital organs for a legitimate medical purpose, then on what grounds can society be free to ignore his wishes and refuse to transplant his heart until it has definitively stopped beating--and is no longer useful for transplanting? Dead or alive, can it make any difference to a permanently unconscious patient that his vital organs are being excised? But if he has known in advance that his donation will be effective and that through his death some good can be done for others, then this is a practical good for the patient himself and eminently humane. If destruction of the entire brain is not demonstrably false as a criterion of personal death⁹³--even if it is not demonstrably true--then is not this whole matter simply a scruple, whose only practical importance is to block the great amount of good that might be done, solely for the sake of a possibility that a person with a destroyed brain might still be, in this most minimal of senses, alive?

All such arguments, however, are but variations on one theme, "If he's not dead, he's as good as dead. Treat him accordingly." The basic conflict over the issue of "brian death" occurs between those who espouse a purely pragmatic solution to what appears to them to be a relatively straightforward practical problem and those who argue that there are some things man cannot do and remain human, one of which is to risk needlessly the direct killing of the innocent. Though not the only people to argue in this latter sense, Jews, Christians, Moslems, and most other religious people, seem in sufficient agreement on this point that it is important, in considering "what practical difference it makes", to consider what they hold. Whatever else, to divide civil society needlessly on such a moral and religious issue would be a matter of practical consequence, especially at a time when governmental approval of abortion is deepening steadily a division and dissension more grave than any seen since the Civil War.

We turn, then, to some of the religious aspects of "brain death".

Arguments supposedly drawn from religious authorities for the notion of death as irreversible cessation of function (or functioning) of the brain have been commented on elsewhere.⁹⁴ Since, with one exception, none of these arguments has gained greater weight since then,⁹⁵ repetition of that material is unnecessary here. We consider three principal topics: in Section 1, we take up the basic moral argumentation concerning potentially lethal actions when the fact of human life is in doubt, then look at the question of the various kinds of certitude one might, in principle, make use of, and finally discuss cessation of treatment as a practical solution to current problems. In Section 2, we consider the much neglected problem of dehumanization. In Section 3, we sketch some doctrinal issues at stake for Catholics and a good many others.

1. a) The following principles appear to be common to all the religious traditions in question,⁹⁶ though not always couched in this language or justified in the same way. Since they seem to be accepted, as well, by the majority of those with whom this article disagrees, discussion will be brief.

First, no individual or society has a right directly to kill an innocent human being.⁹⁷ Violation of a man's right to life is a grave crime against God as well as man. The crime is even worse if perpetrated by one to whom the victim had entrusted himself on the basis of natural ties or of professional standing. Hence, killing by a physician, whose professional commitment is to assist in the preservation and flourishing of the bodily life of his patient, is particularly heinous. Hence, to transplant a vital organ from a living person, even a person in perpetual coma, to someone else whose life might thereby be prolonged would be just such a heinous crime.

Second, one who is dying has not yet died but is still a living person. In fact, a dying person has a greater moral claim, all else being equal, on our love and on what service we can provide him than a person who is not dying, since the dying person is in greater need. Thus, to take a vital organ from a dying person is as morally reprehensible as taking one from a healthy person, perhaps more, because of the special bond set up by the former's dependency.

Third, as a direct consequence of these two principles, our religious traditions condemn any direct action to hasten the death of a dying person.⁹⁸ Though indirect "hastening" may be licit (e.g., giving the only drug capable of relieving this patient's excessive pain, even though it will shorten his life), the shortening of an innocent person's life may never be intended nor be the primary immediate consequence of one's action.

But, fourth, one need not always initiate treatment nor indefinitely continue treatment already begun. In a wide range of circumstances, when a person is already dying, one may simply let him die.⁹⁹ Though God requires the avoidance of evil action, He does not obligate us to do or attempt every good one. Ceasing labors to defer the death of someone who is already dying would, ordinarily, be permissible provided that: i) either the means one must use to defer death themselves inflict grave hardship upon the patient or, at least, one's efforts offer no hope of amelioration of the dying patient's condition, physical or spiritual; ii) one does not seek or intend the person's death but still desires his recovery; iii) the patient (or those qualified to speak on his behalf if he is permanently incompetent) is willing to have such efforts cease; iv) one has no duty from some other source (e.g. parenthood) to keep working for the patient. These are not the only set of conditions which Christian moralists commonly see as sufficient to permit physicians to cease their labors, but are probably those most widely accepted.

Fifth, when there is an objectively grounded doubt as to whether a patient is dead or not, the great principle, both medical and moral, governs: Primum, non nocere (First, do no harm). So long as the doubt remains, one may do nothing which will kill or needlessly injure the patient if he is, in fact, still alive.

For example, suppose that someone has donated certain of his vital organs for another's use as soon as he, the donor, is dead and also that it is not clear, medically speaking, whether he is as yet dead. Assume also that the recipient-to-be is sufficiently ill that, unless he receives these or similiar organs in good condition and fairly soon, he will die. At stake on the one side is an innocent person's life, to which he has the strictest and most basic of rights. At stake on the other side is the right of one or more of his survivors to have the opportunity to benefit from the situation produced by his death. If the doubt cannot be settled within the time in which excision of the organs needs to be made, the choice is either to perform a positive action which may, in fact, be the killing of the donor or to omit that action, albeit in such circumstances that someone else may have to be allowed to die. The physician either settles the doubt once for all by taking the organs, thus making sure the donor is dead, or else he acknowledges his own inability to resolve the doubt and refrains from any positive action that could be injurious, thereby missing the chance to do something which might (or might not) prevent another person from dying as the natural outcome of his own diseased condition.

Hence, a possibly lethal action may not be taken unless and until the doubt can be removed, i.e., unless and until certitude exists that the donor is already dead. Here, as in any case where the doubt is not about the moral principles involved but about the facts which must determine their applicability, the doubt must be removed before any action is taken which would inflict grave harm upon a person if he is still alive, even if this should mean unwillingly permitting some other grave harm to take place. In brief, it is religiously unacceptable to remove someone's vital organs and then say, "Here...he's certainly dead now. You might as well use them; they can't help him any more."

On the other hand, the medical profession has a general, social obligation to search for better means to resolve such doubts, if not in the particular case, at least in others like it. Such doubt, as long as it exists, can work against the full exercise of some people's rights, not only in the case of organ transplants but also in situations where great psychological pain and distress, as well as expense, could be saved the patient's family, were he known to be dead, or where there is question of best serving the general good in the use of scarce facilities.

b) It is, then, in accord with such a framework of principle that the religious acceptability of the UDDA, the UBDA, the ABA's Definition of Death, or similar legislative efforts is to be judged. The statutes in question have generally been presented merely as efforts to recognize at law what physicians have already agreed upon, i.e. to accept at law modern means of resolving doubts in cases which, at least according to traditional law, must be adjudged doubtful. Though this ostensible goal is indeed desirable (we shall point out later how it might in fact be achieved), the proffered remedies are not satisfactory. As shown in Part II, 2, there is no doubt about the physiological and medical difference between a patient with a destroyed brain but no other injury (a fortiori, with a brain that has merely irreversibly ceased to function) and one who is dead. What medical doubts there are concerning the "brain-dead" concern, rather, the lack of certitude possible in the diagnosis.

Certitude, generally speaking, is a clear perception, usually based on some prior knowledge, that one's judgment about some matter is necessarily true. There are many types of certitude, corresponding to the different types of knowledge which can ground the necessity of a judgment. Thus, one is mathematically certain if he sees that his judgment is necessarily true on the basis of the laws of mathematics. The medical certitude which a physician needs for a judgment of death is a variety of what may be called "scientific certitude." This is based on his assessment of certain facts, noted through the art of observation he has acquired, and understood in terms of the sciences which he possesses (physiology, biochemistry, etc.). It is these facts, so understood, which constitute the grounds for a determination of death. Note that, whereas logical, mathematical, and metaphysical certitudes are, in principle, exceptionless, scientific certitudes are not, being no more secure than the particular sciences which lie at their base.

The brain-related criteria do not measure up well to the older ones as to scientific certitude. Even the most basic relation, that between the destruction of the brain and the death of the person has not yet been established. But if we suppose for the sake of argument, that this question is resolved in favor of a relationship of identity, there still remain the uncertainties made manifest by the mere existence of some thirty disparate but medically accepted sets of "brain-death" criteria.¹⁰⁰ It is no help to appeal to the medical profession's consensus as to the best set of criteria; there is, as yet, no such consensus. These different sets of criteria are professionally acceptable ones which competent physicians may use in a determination of "brain-death." One may also note that the recent set resulting from the Collaborative Study is "recommended for a larger clinical trial;"¹⁰¹ that it has in no way been apodictically established appears from its rejection by British physicians, whose criteria, in turn, are refused by many Americans. These criterial uncertainties are made worse by being directly concerned with a presumptively irreversible cessation of the various sorts of brain function rather than with actual destruction of the entire brain.

It is not clear that there is yet a set of medically certain criteria for total destruction of the entire brain.¹⁰² Related questions exist as to whether extant criteria show completed or only incipient destruction (if any at all),¹⁰³ whether they show destruction (or even loss of function) of the entire brain or of only a part of it.¹⁰⁴ When destruction of brain tissue is not brought about directly by an external agency, there remain sizable doubts about the precise causes and mechanisms of neuronal damage (simple anoxia? lack of necessary substances? presence of noxious ones? excessive intracranial pressure from glial swelling? etc.).¹⁰⁵ Nor is there certitude as to where the "point of no return" is in the process of neuron damage.¹⁰⁶

Further, nothing stands out more clearly in the arguments for the various sets of "brain-death" criteria than their almost exclusively empirical character.¹⁰⁷ Usually, the various criteria being scrutinized are tested empirically against the older criteria of death (rarely with 100% success) or against post-mortem evidence of brain-destruction.¹⁰⁸ Understanding in terms of physiological principles is not neglected but is recognized to be as yet too incomplete to bear the chief weight.¹⁰⁹ This is not a reproach; medicine remains an empirical art, however large its scientific components. Further, medicine labors under essential restrictions affecting the amount and quality of the data on human beings it may licitly gather, restrictions especially noticeable if it be compared to animal neurophysiology. And the most experienced physicians seem to be the most keenly aware of the endless bodily individuality of each of their patients.¹¹⁰

c) The inability of clinical criteria to give certitude as to destruction of the brain is often acknowledged indirectly by using the language of exceptions: such-and-such criteria give a valid indication of "brain death" except in cases of drug intoxication, hypothermia, etc.¹¹¹ That is, to avoid an abusive use of criteria, which would treat as dead those who suffer a cessation of brain-function that at present may be or might become reversible, the prior exclusion of all exceptions is made a prerequisite for their use. Merely clinical criteria are admitted to be uncertain unless the physician determines, before applying them, that the patient has not overdosed with drugs, is not hypothermic or hyperthermic, is not too young, and the like.

What seems little noticed is that this introduction of prerequisites means that directly observable facts and the perceivable state of the patient are admitted to be insufficient for certain judgment of "death" on the basis of total loss of function alone. But, in this case, any evaluation of scientific certitude must include not only the uncertainties inherent in the general criteria themselves but also those arising from the difficulty one will find in validating the absence of the exceptional situations.

Now, even the more reliable sets of non-invasive tests for brain destruction are notoriously difficult to apply. The difficulty in excluding a significant presence of drugs in the time usually available is often insurmountable in practice.¹¹² Neither the laboratory tests nor the interpretation of their data are acceptably free from error¹¹³ at least in the context of a possible killing. For example, depressant drugs may often be found in the blood of those seemingly dead--but in small amounts, "within the therapeutic range".¹¹⁴ Does such a finding show only an irrelevant complication to a situation of total destruction, or does it suggest that the cessation of brain function is in part due to that drug and may even be reversible?

Something similar is true for other common prerequisites: the presence of an irreparable cerebral lesion or the absence of cardiovascular shock.¹¹⁵ Hypotension from cardiovascular shock can often be reversed, at least to some degree but not always.¹¹⁶ 187 patients met the new criteria for cerebral death used in the Collaborative Study; 185 of these died later, as judged by the older criteria. And what of the other two?¹¹⁷ To judge by the NYAS Conference, this situation is regarded as unsatisfactory by most physicians.¹¹⁸ Hence, the thrust of medical research is to seek more clear-cut and definite tests or subordinate criteria which will allow a determination of brain destruction that is certain, regardless of a patient's history.

Therefore, even were the brain-related criteria perfectly secure in themselves and the tests in support of them equally so, the medical and laboratory complexities needed for application are such that one might well wonder if the older criteria are not significantly more certain in their application.¹¹⁹ If so, they are obligatory whenever there is a question of possible lethal activity.

It may be objected that we are descending to details and particulars which are inevitably in flux, to the determination of death rather than to the criteria for it. But why not? Given that a major purpose of the push for new criteria is to be free legally and morally to excise people's vital organs, these criteria must remain religiously unacceptable until it is possible to show not only that they are certain in themselves, but that they can be applied without substantially greater risk of error than the older ones.

This is sometimes conceded but rejected as inconsequential: would not one expect, with the advances of medicine and the more complex situations which these advances have made possible, that more complex criteria would be needed? Could complexity alone be a valid ground for rejecting a criterion?

No one, however, has held that death itself has become more complex. Excising a person's heart today makes him as dead as ever it would have, though the procedures used in the excision are now vastly more complex than those used by the Aztecs. It is life that can be rendered more complex, not by the mere increase of external mechanical complexities, which do not alter the basic living processes, but through the initiation of genuinely new biochemical reactions in the body with correspondingly new types of homeostatic response. If complex technology enables us to maintain an organism alive in a state closer to death than has ever been possible before, this shows only that, in cases where potentially lethal action is envisaged, the risk of killing these people is also greater than ever before.

d) There is, of course, a kind of indirect certitude based on the existence of a universal agreement among those who are competent to judge with scientific certitude, especially where those competent people are not, on other grounds, disposed to agree. This kind of certitude is all that most nonphysicians can have in these matters. But, in fact, there is no such universal acceptance of brain-related criteria by physicians and allied professionals necessary to ground even this sort of certitude concerning these criteria.¹²⁰

There seems indeed to have been a strong movement among physicians and others during the last decade in favor of these criteria. Yet if we may judge by other issues in recent years, a surge of opinion can be generated and sustained merely by a strong, vigorously concerted campaign of arguments, all marshalled in a single direction, at, least until those who disagree find time to think through a reply. There need be nothing sinister in such a concerted drive--that is the way most new ideas make their way. But to take the first upsurge of favor for the new as being "the wave of the future", or the "idea whose time has come", or as being proof of "imminent consensus", or of "practical unanimity" is to show a greater naivete about contemporary formation and manipulation of opinion than is becoming in a professional person.

It is often implied that a consensus among neurophysiologists and neurologists is all that is needed, since they alone are in a position to have true scientific understanding of these matters. But while they are the best qualified to do the needed research in this

area and to develop the theoretical explanations of their findings, such an argument would seem to show more than a little contempt for the powers of others to understand either the results of those researches or their methods and theoretical bases. Also, it is hard to imagine the medical and related sciences so sharply compartmentalized that no one outside the neurological disciplines could have anything of worth to offer. Did not many of the exceptions now taken into account by neurologists and many of their proffered criteria begin with the observations and ideas of non-neurologists? And the great sensitivity to the most minute signs and imperceptible alterations of condition developed by many a nurse of long experience would be ignored only at the patient's expense. She could, obviously, be mistaken but may never be simply assumed to be so.

It is perhaps true that only neurologists would have the technical skills to make the final diagnosis in the difficult cases which have given rise to the problem. If the criteria themselves were universally accepted, the care to see them properly applied might rightly be left to neurologists. But scientific certitude about these criteria rests upon perceptions of scientific necessity which are not the sole perogative of the neurophysiologist.

e) Tendler has argued¹²¹ that one might avoid the practical consequences of the dispute concerning the supposed equivalence between the destruction of the brain and death of the person in the following manner: wheel the person with the destroyed brain into the operating room or appropriate laboratory; when all else is ready, simply turn off this person's ventilator, since it cannot, on any supposition, preserve even the appearance of life beyond a few days; then, after he has died (in the ordinary sense)--a matter of minutes only--take his organs or do whatever is to be done.

Reasonable as this might seem as a solution in view of the principles enunciated above,¹²² it is unlikely to satisfy any physician who wants vital organs for transplant or research. He needs these organs alive, even though the whole body before their excision is declared dead, since, e.g., for heart, liver, and lung transplants these organs would suffer serious deterioration if the donor is permitted to die (in the common-language sense) before excision. Implicit is the Cartesian notion that a person may be dead though his entire body, apart from his brain, is indisputably alive and functioning as a single organism and, in some highly restricted yet true sense, healthy.¹²³

Ramsey¹²⁴ has suggested, for somewhat different reasons, that it be made standard procedure to turn off ventilators as soon as total destruction of the entire brain has been diagnosed with certainty, but that there be no change in what counts for death medically. This suggestion, like Tendler's, would permit kidney transplants and some research activities but would severely limit or prevent others. However, in terms of the moral principles sketched above, both approaches could, with some qualifications, be legitimate.¹²⁵

2. When inquiring into the religious status of brain-related criteria of death, we must also take into account the possibilities of dehumanization resulting from their use. These possibilities are fairly obvious when it is a matter of excising vital organs from those who appear to be alive, but are no less real in contexts where there is no thought of organ-removal. Since this is not a moral treatise, the authors can only point out some of the elements that call for more detailed consideration in this context.

a) Jews, Christians, and Moslems are in profound agreement that power and strength, whether bodily, intellectual, moral, or social, exist in large measure for the aid, support, and defense of those who are weak and powerless. Governments exist to defend those who cannot defend themselves.¹²⁶ To settle doubts as to the status of one whose brain alone has been destroyed, simply by declaring him dead and treating him in such a way as to kill him if he is not, must, then, be morally suspect, for it hazards what life may remain in the weakest of all for the advantage of someone stronger than he.

The dehumanization of our society which could be produced this way is not easily visible, perhaps, precisely because it is already well advanced. For example, the turning off of ventilators or other support-systems, triage, and the like may be at times permisible, even morally required. But in this nation, which spends $16.5 billion a year on tobacco products, $28.2 billion in alcoholic drinks, $18 billion on TV-sets, music-recordings, and other pleasant but hardly necessary items, we hear those same actions being advocated solely in terms of economic advantage to society, as if we could not afford public support for such medical "luxuries".¹²⁷ One does not have to look far to find complaints about having to support those incapable of "meaningful" interaction with others or who are "unable to contribute" to society, those once called "useless eaters" in a similar social system.¹²⁸

A subconscious awareness of the infiltration of this evil maybe a major reason for the astonishing popularity of Mother Theresa of Calcutta among people who seemingly have no relationship at all with her basic work. The lesson she offers so visibly and unmistakably

to the world is that it is an enormous good that the living and strong spend their powers in helping the dying to live, at least a few moments, loved by other human beings as God loves them, for themselves, as they actually are or can yet be, not for their powers or contributions. The hoped-for strength or health of some cannot be grounds for neglecting others, though the inability of the dying to profit from what treatment is available may be a legitimate reason for ceasing that treatment, as suggested by Ramsey (cf. III. Lc.).

Another indication of dehumanization can be seen in the increasing tendency to regard an organ transplant no longer as an extraordinary gift of someone else's charity, a gift all the more precious and gratuitous for being subject to much-needed precautions not to kill the donor, but as something to which the recipient has a right because those organs might prevent his suffering and death. The point here is not primarily the endangering of the donor's life but the failure of the relatively strong to perceive the greatness of the privilege that is his in being recipient of such a gift from the most weak. Once people have come to claim as their right what is of its nature the purest gift, the stage is set for taking what does not belong to them even when it involves the risk of killing those to whom it does.

b) The new principle which allows or even calls for free utilization of human remains by the living has yet to receive any moral or religious analysis capable of justifying it. It may be doubted that any is possible. The corpse still belongs to God, or is so related to Him that reverence for it, not desire to subject it to our uses, is the only proper attitude for the living. To the extent that a person can and does act in God's name, he can rightfully make disposition of his remains for anothers' benefit. But it is not clear that others can do this on his behalf. Certainly, this cannot be done when neither his free consent nor that of his next of kin has been given. Yet our laws tend increasingly to permit the taking of organs without such consent, making little or no provision for a refusal, yet letting public authorities make use of the corpse where such a refusal is not immediately at hand.¹²⁹

c) Medicine, perhaps more than the other professions, runs the risk of dehumanization since medical professionals must learn to check their feelings in the presence of pain and grief if they are to provide the quality of care needed by their patients. All the more, therefore, they must guide themselves by settled convictions concerning the true good of their patients. For them to learn to resolve doubts as to the presence of human life by destroying it, if present, conflicts in a special way with their humanity. But beyond this fairly obvious difficulty, there seems something inhuman in a surgical team's operating destructively on a still-living "cadaver", even if they are convinced the person is dead. Their whole training has readied them to perform surgery only for the benefit of the patient on the table. Neither they nor society profits from having them become ambivalent--sometimes healers, albeit with the knife; sometimes killers, albeit only of the still living bodies of those they call "dead".

d) The onus cannot rest solely on physicians. Even the most hardhearted of them would not do these things if the rest of us did not desire to have them done. It is generally not the physician who is the willing, often eager recipient of transplants so ambiguously obtained. Perhaps his chief disservice to us is in agreeing to our, often unexpressed, desires.

Few things cut more directly into the roots of our humanity than the fear of death, a fear both masked and manifested by our longing for a secular immortality, for an indefinite continuation of life as we have known it. When allowed to grow strong, this craving for further life can be extremely cruel.¹³⁰ Surely, one's humanity is drained away by refusal to face painfully ambiguous situations as what they are for fear of what might be the consequences for ourselves. Is there not a danger, then, in this willingness, even this passion, to support some lives by a means that may be extinguishing others, before medical progress has fully clarified the situation? Why should the legal profession be so quick to act in spite of tile medical obscurity?

e) A major motivation for introducing "brain-death" legislation, which has been mentioned so far only in passing, is to provide both next of kin and physicians with a less painful way to reach the decision to cease treatment. Many people seem unable to bring themselves to consent to the stopping of treatment for their patients or their loved ones, no matter how hopelessly injured or ill, if still alive. To avoid, then, the prolonging of needless grief (and the quite useless expense with which it burdens families, hospitals,and society), it is argued that we should define those "people" as dead whose brains have irreversibly ceased to function so that needless treatment might necessarily cease.

Yet, however harsh it may sound to say so, such an approach seems both inhuman and dehumanizing. Avoidance of reality is a poor way to salve anyone's conscience. Shirking an agonizing responsibility does little to mitigate grief over the long haul. The

grief of deciding to cease treatment, with its haunting doubts afterward about whether one has done the right thing or not, is small in comparison with the remorse of conscience of one who has knowingly consented to what he thinks deep down to have been a lie.

And where would such redefinition stop? Hard cases concerning cessation of treatment exist far beyond the confines of "brain-death." Shall we alter the law so that every non-competent patient concerning whom there is a painful question about the usefulness of further treatment is to be declared dead? If so, we are far beyond "brain-death", even beyond "neomorts". As novelist Flannery O'Connor said, pity without principle leads only to concentration camps...or beyond.

Yet, useful legislative action is possible in this area. As indicated in Section 11.2 above, it is clearly admissible to introduce into law, in addition to the category of the "dead", a further category of "those beyond treatment." People who belong in the latter category but not yet in the former would not be subjects for vital-organ removal but would be allowed to die without further treatment.

f) A tendency is manifested throughout the entire history of "brain-death" legislation to replace physicians' best medical judgment with a list of criteria, contextless legal norms, which can only injure a human approach to medicine (c.f. supra I.2., text to notes 26-29). Worse yet, the expense and the abuses eventually involved in transplantation, as these procedures become more common and further vital organs can be transplanted,¹³¹ will soon bring in or occasion an imposition of federal guidelines and bureaucratic regulation far removed from either sound medicine or the will of ordinary people. The activity of the President's Commission, with its piecemeal investigation of "brain-death", is a case in point.

To avoid the dehumanization inherent in this contextless, checklist approach with its openness to bureaucratic interference, we propose that any statute on this subject be phrased negatively: "No one shall be declared dead unless such-and-such signs have been manifested." Such a statute has the further advantage of being easily amended, made tighter or looser, as the status of the medical aspects changes.

g) One point in the discussion of "brain-death" that has not often been squarely faced is that such legislation runs counter to, even tramples upon, the religious convictions of many--and these not among the "cultists" or devotees of short-lived, new religions. The testimony of Rabbi Bleich¹³² is clear on this point; there is no good reason, however, to restrict what he says there to Jews. It is just as true of the moral conviction of Catholics and numerous others.

The President's Commission asserts that those who think that patients with permanently non-functioning brains may still be alive "would not be forced by the [proposed] statute to abandon those beliefs nor to change their religious conduct."¹³³ This is, of course, a rather gross secularism. For, as they go on to acknowledge, "the recommended statute may cause changes in medical and legal behavior," as if medical and legal behavior were simply detachable from, or irrelevant to, one's religious conduct or beliefs. "Urg[ing] those acting under the statute to apply it with sensitivity" and "responding to individual circumstances after [a] determination [of death] has been made" [emphasis added] is of small help. Once a person is dead according to the law, he must legally be treated as such regardless of religious convictions, a point the Commissioners return to¹³⁴ when they reject the advisability of a "conscience clause" that would permit the determination to be made according to the criteria accepted by the individual, his family, or his church. They point out¹³⁵ "the family's permission [for the determining of death] is not sought."

But the crucial question is nowhere addressed: how is it not inhuman to coerce people against their basic religious convictions, however nicely and politely this is done, when those convictions formed part of the original basis of this society and its system of law and are still the primary ones operative among ordinary people in this society? How is it not, a fortiori, inhuman, when an easy and acceptable means is at hand to avoid such coercion, i.e., letting people be declared dead in accord with the older modes or determination, and only these, at least in cases in which potentially lethal action is envisaged? What overwhelming social need is at hand that requires society to make the choice the Commission itself admits is not forced upon it by any scientific evidence? This slighting of the religious dimension of human life and the implicit contempt for those who live by religious faith already signals a profound dehumanization if this slighting is truly a matter of principle and not mere oversight.

3. Finally, there are religious aspects to the question of death which do not directly touch upon morality but involve crucial matters of doctrine, though indirectly these have their implications for the moral order also.

a) The notion of a human being as nothing but a very complex, electrochemical machine can often be detected in the language and argumentation of those who hold that destruction of the brain is equivalent to the death of the person.¹³⁷ Indeed, what is typical of mechanism as a philosophy is that parts always add up to wholes; a whole is no more than an aggregation of suitably interacting parts. Whatever the merits of this viewpoint, it is radically incompatible with the religions here considered. Whatever may be said of the remanent personhood of the sustained but isolated human brain, the human person cannot be considered solely as a corpse activated by a suitably "plugged-in" brain (cf. II.3.d. supra).

According to the Judaeo-Christian tradition, a human person is the entire, living, human being; body, spirit and/or soul all together in one single, though composite, entity. After death, before the resurrection of the body, the disembodied spirit is conscious and active, enjoying reward or suffering punishment; it is not, for all of that, a complete human person still but looks forward to the resurrection for the fullness of reward or punishment when the person is to be reconstituted integrally.¹³⁸

The fifteenth Ecumenical Council, that of Vienne, in the year 1312 defined that it is heretical to hold that the rational or intellectual soul is not a form--truly, of itself or intrinsically (per se), and essentially-of the human body.¹³⁹ A "form of the human body" is that concrete principle of our being that, in its union with our equally concrete materiality, constitutes the human body.¹⁴⁰ The Council identified this form with that spiritual principle that cannot by nature die and through which we are constituted intelligent, free beings.¹⁴¹

The fact that all doctrines that even bring this identification into doubt are labelled heretical indicates that the Church saw it to be a matter of great importance for Christian faith. What was at issue was the substantial unity of the human person during life and an understanding of human death as the separation of the intellectual soul from the corpse. It is worthwhile to look at a few of the consequences of these teachings for the determination of death, in order to see that any position taken concerning brain death has close ties to important doctrinal issues.

Evidently, the intellectual soul cannot be held to reside in the brain alone or to animate the brain alone, since it is "form" of the entire body, the brain included. But the question remains open as to just when, criteriologically, the human composite becomes so disarranged and disordered that it can no longer survive as a human being and dissolves into a separated soul and a cadaver (whatever the precise nature of this latter may be).

Someone who accepts both brain death and the conciliar teachings (cf. the positions indicated in the latter half of note 140) seems, all unwittingly, to reduce the human substance to its (intellectual) functions. For, the identification established by the Councils would, in such a context, imply not only that absence of a human body makes all human functioning impossible but that absence of a very few human functions makes impossible the existence of a human body. But if 'human functions' and 'human body' are thus convertible, it is a mere matter of words as to which is to be used. Only one reality is being considered, that to which the term 'function' is ordinarily applied. This Humian view, while obviously not in the purview of these two Councils, seems hard to reconcile with their understanding of the integral and substantive unity of the human person.

Further to argue within the framework of Vienne and V Lateran that the "brain-dead patient" is a living but non-human organism, one must offer some way to determine empirically whether this body that shows no overt signs of intellectual activity is human or not. For, as pointed out supra note 58 and II.3.b, neither intellection nor volition has any least empirically observable concomitant that must of necessity be present. A fortiori is this true if one is speaking of a continuing potentiality for thought or volition. But, as was seen in 11.2, a "brain-dead patient" on life-support is, empirically speaking a mortally injured but still living human body. It is, therefore, still a living person, capable by its substantial nature of thought and choice, even if not by present action.

b) Not only is lack of consciousness in those whose brains have been destroyed undemonstrable in principle, but the mystics speak of the "ligature" of the powers of the soul in ecstasy and some higher forms of mystical union. When the ligature is intense, the senses cease to function, the body becomes immobile, breathing and even heartbeat become undiscernable, and body-temperature drops, so that the person may be thought dead. The natural operations of even mind and will are suspended by God's action, so that these remain operative only in the strictly supernatural modes of faith, hope and charity at "the fine point of the soul".¹⁴² Might not such purifying prayer be possible and even frequent among devout believers as they approach death and judgment, even when "brain-dead"?

Not only Catholics speak thus. Lutherans, for example, recently denounced any effort "forcibly to interrupt the movement of man's spirit as it may be communicating through God's Spirit with His Creator and Redeemer by way of responding in trust and inner yearning"¹⁴³ during the mysterious time just prior to death. They explain elsewhere:

"In some instances it is impossible to determine by ordinary means whether the patient has the capability of reacting to what goes on around him.... Intentionally to bring about the death of an individual so engaged [through the Spirit in "sighs too deep for words"] in communion with the heavenly Father would constitute a blasphemous intrusion into a sacred relationship prevailing quite beyond the farthest reaches of human knowledge and personal awareness.¹⁴⁴

c) The common teaching of the Catholic Church concerning the sacraments offers examples of the practical difference that can exist between permanent unconsciousness and death. For example, consider the situation of an unbaptized person who has sinned often and mortally during his life. Suppose he had intended eventually to be baptized but always deferred action. He has now suffered massive brain damage which renders him totally and irreversibly unconscious. If he is in fact dead, then apart from some wholly extraordinary intervention of God, he is already suffering eternal punishment. If, on the other hand, he is still alive, no matter how hopelessly damaged, he is still capable of receiving baptism. If he is then baptized, when he comes to die he will enter heaven at once through this purely gratuitous gift of God. Such a difference between heaven and hell is presumably the most practical of all questions for the person involved.¹⁴⁵ Similar arguments can be constructed with regards to the sacrament of the sick, through which God remits grave sin in the unconscious according to common practice and teaching.

There seems nothing directly analogous to such Catholic doctrine elsewhere. Yet, the Lutheran text just quoted shows that the idea that what happens between the last signs of "brain-life" and a person's death may prove of enormous practical value to him is not alien to other religious traditions as well.

•  IV.

"Brain-death" legislation has been urged upon us as the solution to a number of difficult medical and legal problems. But those who favor such legislation have to show two things if they are to make their point: that this legislation responds effectively to the problems for whose sake it was introduced; and that it will not beget other problems of at least comparable gravity. It would seem, however, that this legislation does not solve the problems it was intended to meet (Section 1); and that, in fact, it generates even more difficult problems (Section 3). In Section 2, consideration will be given to what legislation in this domain might be appropriate.

1. a) The point most frequently, even insistently, urged is that, due to medical progress, it is impossible in many cases of brain damage to apply the older heart-lung criteria; one can no longer tell using these alone whether one is treating a corpse or a living person.¹⁴⁶ Since it is essential in a great many areas of law to know what "death" means concretely, the neurologists' new, brain-related criteria of death must be made legally acceptable in a controlled and uniform manner throughout the country. To do this, the argument continues, "brain-death" statutes are necessary, for otherwise society is restricted to the commonlaw criteria of death, which are both outdated (recognizing as dead only those who have suffered irreversible cessation of cardiac and respiratory function) and far from uniform. In brief, the law must be made flexible enough to take proper account of medical advances in determining death and, in particular, to make "brain-death" indisputably legal as a basis for the determination of death.

But the supposition that artificially produced ventilation (coupled with other life-support mechanisms) precludes observation of the presence or absence of cardiopulmonary vital signs is incorrect. Even a nonphysician can usually note the pertinent difference.¹⁴⁷

In consequence, despite repeated protestations of the President's Commission to the contrary,¹⁴⁸ any statute or judicial decision that has chosen to call "death" the condition of those whose respiration and other vital signs are continuing, though only with the aid of life-support systems, has altered the very meaning of the word 'death'. On purely philosophical, if not ideological grounds, this meaning is extended to include that status of a person which, on medical and biological grounds, can at most be qualified as "dying,"--hence, still living. May we be pardoned if we do not regard this playing with words as a solution to any problems.

The President's Commission does begin well its treatment of the view of death that is also ours: "death is that moment at which the body's physiological system ceases to constitute an integrated whole."¹⁴⁹ However, it goes on to assert: "This view holds that continued breathing and circulation are not in themselves tantamount to life,"¹⁵⁰ which, if not a truism, serves only to confound ventilation with respiration, even as, in conjunction with the Commission's preceding sentence, heartbeat is confounded with circulation. On the basis of this confusion, it is relatively easy to slide from the notion of integrated functioning of all the various organ systems to their "neurologic integration" (emphasis added).¹⁵¹

The Commissioners seek to avoid the charge that they are changing the very concept of death by arguing that both the brain's irreversible loss of function and irreversible cardiopulmonary loss of function are merely diverse criteria for the same condition: death. They claim merely to apply "new diagnostic measures." Not only is this not factually the case, but it would, if true, render futile and void of purpose the Commission's recommended statute. For what other purpose does this statute have than to permit some to be declared dead by "brain-death" criteria who would not be by the traditional approach, whether for theoretical or merely practical reasons?

Hence, this principal argument of the President's Commission is simply a begging of the question. The commonlaw approach is outdated or inadequate with respect to brain-related approaches if and only if a person really is dead, in the ordinary-language sense, simply and solely because all of his brain functions have irreversibly ceased: the very point at issue.

On the other hand, it can be admitted that the earlier, commonlaw approach to death is inadequate or obsolete nowadays but for a very different reason: in the context of vital-organ "harvesting," it is too much like the "brain-death" approach. It permits those who might still live for a few minutes more to be killed for their organs, even though the chance of such killing is vastly less than in the case of those with nonfunctioning or even destroyed brains since one is less likely to want vital organs from someone who has already suffered apparently irreversible cessation of all circulatory and respiratory functions.

b) A second difficulty has a somewhat better grounding in reality: doctors and hospitals are confronted with potential liability problems, e.g., concerning the use of life-support systems. If so, then legislation should be designed which addresses itself to those specific situations. If, for example, what is in question is the legality of discontinuing resuscitative or artificial support procedures, it is not evident how any definition of death can avoid legal problems here, but only displace or shift them. The decision to use, not to use, or to cease to use either of these classes of procedure is not equivalent in fact, and should not be seen as equivalent in law, to stating criteria by which to decide whether someone has died or to applying these criteria so as to declare someone dead.

Further, a declaration of death is not--or at least should not be--required generally at law before ceasing treatment ("turning off a respirator").¹⁵³ Though killing the innocent is always a grave wrong, ceasing one's efforts to avert a threat to his life arising from some source other than one's own action may be anything from a grave wrong to an act of great virtue, depending on one's personal and professional obligations to this individual, on the possible alternatives, and on a host of other circumstances.¹⁵⁴

It is true that there is considerable difficulty connected with the formulating of a statute which would properly exempt hospitals or physicians from liability in certain carefully delimited cases. But it would scarcely be more difficult than formulating a suitable determination-of-death statute. The moral and religious exigencies involved in the former are, if anything, less stringent; there seems less room for strictly medical disagreement; there is a broader range of legal precedent and a smaller chance of extensive damage to fundamental state interests and to basic legal structures. Narrower in scope and more explicit in intent, it would be far more likely to attain its purpose.¹⁵⁵

As Veith et al. pointed out,¹⁵⁶ and as was later confirmed by the President's Commission,¹⁵⁷ there appears to be negligible present risk of courts declaring against physicians or hospitals if they are acting in any reasonable manner. The real concern appears to be the cost in time and money exacted by the necessity of defending oneself should some court action arise. But if this is the problem, let it be addressed squarely, by requiring the lawyer, or perhaps the client, who brings a suit which the court decides is irresponsible, malicious, or harassing to bear the full costs of both sides of the litigation.¹⁵⁸

As will be shown in Section 3, "brain-death" statutes are not only inept for solving the problems arising from liability and unjust litigation but actually augment the chances for court action.

c) Another genuine problem arises from the obvious need to make optimal use of scarce and costly facilities: the maintenance of those with destroyed brains, whose situations cannot improve, can block the use of these facilities for those who could profit from them or, at least, burdens society with needless costs.

As just seen in b), it is not a change in the mode of defining death that is needed if prolonged treatment of dying patients is to be avoided. As pointed out in 111.1, refusal to initiate or continue "extraordinary" treatment of the mortally wounded, especially those whose brains have been destroyed, is under most circumstances morally acceptable to all major religious groups except, possibly, to Orthodox Judaism.¹⁵⁹

In the paste except in small children, total collapse of the organism ordinarily occurred, in spite of one's best efforts, within forty-eight hours, at longest within one week.¹⁶⁰ More recently, patients diagnosed as "brain dead" have lived much longer, e.g., pregnant women who have later given birth to a healthy baby.

Not only does "brain-death" legislation do nothing helpful for making good use of our monies and facilities, it aggravates the problem. Most of those who oppose "brain-death" legislation would not tolerate continuing "treatment" of those truly dead. But, as seen above,¹⁶¹ the President's Commission and those medical teams and hospitals that use "brain-death" criteria to declare patients dead have proved willing to continue the treatment of "corpses", in intensive care units as long as their organs can be useful.

d) It is also argued that it is ethically wrong to continue "medical treatment" of a corpse, which ought instead to be removed and decently buried; the law should reflect this ethical consideration.

Who could disagree? But talk about the ethical importance of not dishonoring the dead by continuing to pump blood and air through their cadavers is quite beside the point. The only ethical issue is, "Is this a corpse?" Both sides of the debate over "brain-death" are agreed that no further medical treatment is required if the answer is clearly affirmative. The question seems difficult only because two different meanings are being given to the word "death", as seen in a) above. Once this needless ambiguity is removed, the putative difficulty also disappears.

This is not to say that abuses never occur, e.g., because of family-induced pressures, but only that such abuses have no greater standing in the older approach than in the brain-related ones. Once again, "brain-death" statutes have nothing positive to offer.

e) Finally, it is argued that without "brain-death" legislation, there is a perpetual risk that the extraction of vital organs, whether for transplants or research, may be seriously impeded because of the lack of clarity on all side