The term "brain-dead" was coined In 1965, when a renal transplant took place using organs donated from a patient with no recorded brain function. To review the full article see: Definition Of Death Debated



by Paul A. Byrne, M.D. and Richard G. Nilges, M.D.

We live in a "disposable society", where it is common to discard whatever is useless or no longer functions. When a determination of "death" is based on cessation of brain functions, the individual is determined to be "dead" (though he is often treated as "alive" until it is more convenient to excise organs or do research.) This represents a major and, and we think unacceptable change in the patient-doctor contract, as well as in patient-hospital, doctor-hospital relations and in social relations generally.

Brain death, or more accurately stated, brain-related criteria for death, revolves around the fact of death. Other issues that are frequently brought to mind in such discussions include the use or non-use of a particular treatment, e.g., a ventilator. It is not our position that everyone be placed on a ventilator before death, nor do we contend that a ventilator cannot be stopped until there is putrefaction or gangrene. The use or non-use of a ventilator is a topic separate from brain-related criteria for death. Organ transplantation is another issue. We are not opposed to organ transplantation, but we are opposed to removing a vital organ from someone, who if he or she is not yet dead, he or she will certainly be dead after the organ has been removed. We are opposed to research on those determined to be dead based on cessation of brain functions, but otherwise alive.

The life span on earth for an individual human being is somewhat analogous to a line drawn on a board. The line has a beginning, it is continuous, the line ends. Life on earth for a human being is continuum from the beginning to the end. At all points on the continuum, he or she is the same human being. Needless to say, life is not smooth. Thus, like life, the line can be drawn with its ups and downs. Often, just before death, it can be said that the person is dying, but not yet dead. To bedead is what occurs after death. What there is after death, is destruction, and continued destruction-- and the destruction cannot be stopped. The destruction can be slowed by embalming or by cooling, but once there is death of the organism, there is destruction and continued destruction.

The pronouncement of death has changed radically over the past 10-15 years. Before that, the physician and other interested parties had only one objective, i.e., to be sure that a person not be buried or cremated alive. The new approach is not as sure--now, there is needless risk of one patient's life to benefit another. For example, the expense of medical care may be a factor for the relatives or those who pay the bills, or another patient may benefit through organ transplantation, or the physician himself might benefit. Often the liability for death of a patient is less than the liability for continued life with a handicap. Or how about the benefit of all mankind? Research has been done after a determination of death which was based on cessation of brain functions.

The person is determined to be "dead", but then is treated as "alive." Determined to be "dead" based on absence of some brain functions, but the heart is still beating. There is a recordable blood pressure and when the knee is tapped, the knee jerk is present. The color is normal but when pressure is applied to the skin, it will blanch. The color will then return when the pressure is removed. Determined to be "dead", but treated as "alive." Suction and postural drainage is done to prevent pneumonia. He is turned to prevent bed sores. How can a cadaver develop pneumonia or a bed sore?

Is the person dead? If the answer is no, then he is still alive and must be treated as such. If we don't know the answer, we are not free to remove organs or carry out research that will kill the person if not yet dead. If the answer is yes, then the question is "which set of criteria was used to make the determination of death?"

Brain-related criteria revolve around 3 kinds of observations: The first is clinical observation of an absence of certain brain functions, e.g., shining a light in the eye and observing no pupil response, or putting ice water in the ear and observing no eye movement. Another is doing an electroencephalogram, commonly known as an EEG. The EEG is a recording of electrical activity from the surface of the brain. Little or no information is obtained from deeper in the brain. The Minnesota and British Criteria do not even include the EEG. Some of the criteria use a technique to evaluate absence of circulation to the brain. These tests are not absolute and at times might actually result in the side-effect of spasm of the vessels--thus, causing what is being searched for, i.e., no circulation to the brain.

The new criteria confound loss of function with physical destruction. For example, a computer cannot function without electrical current. During sleep there is loss of some brain functions which recover, with or without an alarm clock. Narcotics and toxins result in cessation of many brain functions. An antidote or body metabolism restores these functions. Destruction includes alteration of the basic-structure, i.e. structural or organic change resulting in losing the capacity to function. The new criteria are for cessation of functions. None of the criteria are for destruction of even the brain, much less destruction or death of the organism.

Brain-related criteria are not based on valid scientific data. The Harvard Criteria were published without any patient data and there were no references to basic science reports. The Minnesota Criteria evolved from a study of 25 patients. An EEG was done on only 9 of these patients. 2 of the 9 had "biologic activity at the time of brain death." Their conclusion: No longer is it necessary for the neurosurgeon to use the EEG in making a determination of death--hardly scientifically valid! The British Criteria also do not include the EEG. It was reported in the British Medical Journal on February 14, 1981, that the doctors in Great Britain were considerably influenced by the doctors in Minnesota who do not require the EEG. The NIH Criteria were derived from a study known as the Collaborative Study. The NIH Criteria were recommended for a larger clinical trial, which still has not been done. There are more than 30 sets of criteria. A physician is free to use any one of these 30 sets. Thus, a patient could be determined to be dead by one set, but not another.

No matter how seemingly rigid the criteria are, the ease with which they can be bent is manifested in the report by the President's Commission on page 162, where it is written: "B. An individual with irreversible cessation of all functions of the entire brain, including the brain stem, is dead. The 'functions of the entire brain' that are relevant to the diagnosis are those that are clinically ascertainable." In one sentence, whatever stringency there was, has been reduced to no more than what can be "clinically ascertainable." In one sentence, whatever stringency there was, has been reduced to no more than what can be "clinically ascertainable." Thank God there is more physiology taking place in all of us than what is clinically ascertainable.

If one uses the Minnesota Criteria, the British Criteria, and now the published Guidelines of the President's Commission, it is not necessary to include EEG evaluation in determining death. In which case, if the cortex is still functioning, but is wholly cut off from manifesting its activity clinically by damage elsewhere in the brain--something that does occur and which an EEG can clearly show--then this functioning (which could involve memory, feelings, emotion, etc.) is suddenly irrelevant to the person's life or death. According to the Collaborative Study, 8% of those declared dead on the basis of those criteria omitting the EEG, still have cortical activity when evaluated by non-clinical means (EEG). Thus, action such as excision of a beating heart results in killing at least one in twelve under such circumstances. As Dr. A.E. Walker (Clinical Neurosciences, 1975) has written, this represents " . . .an anomalous and undesirable situation." Will not the general public have stronger words?

Dr. Frost wrote in the Journal of Pediatrics in January 1981, there is "deep disagreement. . . whether brain-death is synonymous with death. Death of the brain is not the same as death in a traditional sense." While there is such disagreement, already more than 30 states have a cessation of brain function law that was passed either through statute or a state supreme court ruling.

The editorial comment in JAMA on Sept. 3, 1982 , includes "[n]ow we are told a brain-dead patient can nurture a child in the womb, which permits live birth several weeks 'post-mortem.' Perhaps this is the straw that breaks the conceptual camel's back. . .the death of the brain seems not to serve as a boundary; it is a tragic, ultimately fatal loss; but not death itself."

The Uniform Determination of Death Act (UDDA) has been supported by the AMA, the ABA, and the Uniform Law Commissioners, as well as others.

The UDDA accepts two separate, readily distinguishable, clinical situations as death, both of which can be manifested successively in the same individual. For example, an individual can be determined to be "dead" based on any one of more than thirty, non-identical sets of criteria (which in itself should cause considerable concern) for determining "irreversible cessation of all brain functions." At that point, in practice, the ventilator will often be continued. Everyone in attendance can witness the intact circulatory system via the sound or oscilloscopic display of the beating heart, as well as the recordable blood pressure. The intact respiratory system is manifest through the normal color of the skin. The exchange of oxygen and carbon dioxide can be verified by determining blood gases (pH, pCO2, and pO2). The intact interdependence of circulatory and respiratory systems can be observed easily, by any and all, merely by applying pressure to the skin, resulting in blanching, only to be followed by a normal color within a few seconds after removal of the pressure. With more sophistication, and intact endocrine system (pituitary, thyroid and adrenal hormone production) can often be demonstrated. Detoxification by the intact liver can be documented through appropriate testing. If the individual declared brain-dead is pregnant, then the mother and the fetus can be maintained until the fetus matures and is better able to adjust to an extrauterine environment (JAMA, Sept. 3, 1982).

Clearly there are many signs, including the vital signs, which both physicians and laymen are accustomed to associate with being alive. When support by the ventilator is gradually reduced or, more often, when it is turned down abruptly, everything else may stop or, sometimes, the individual resumes spontaneous breathing. On the other hand, whether or not the support is gradually reduced or abruptly stopped, if the beating heart is excised and no substitute is implanted, the other set of criteria acceptable according to the UDDA will be fulfilled, at which time the individual manifests the findings more universally identified with the fact of death. Are we not being asked to accept two medically clearly distinguishable situations as equivalent and identical?

bullet1. To say a patient with a beating heart, a normal pulse, a normal blood pressure, a normal color, and a normal temperature is dead is false.


bullet2. A cessation-of-brain-function law is not needed to stop a ventilator.


bullet3. If brain-related criteria are not based on valid scientific data, action that is taken results in killing.


bullet4. Cessation-of-brain-function laws, when followed by living will and death-with-dignity laws, are a part of, or lead to euthanasia.


"A human being belongs to the species Homo sapiens and, as such, is a person throughout his entire life, still when dying. There are attributes of a living human being that do not belong to other species, for example, thinking, judging, loving, willing, and acting. When it is predicted that a particular living human being will not be capable of demonstrating these attributes again, this living human being does not then belong to another species. He is still a living human being, a living person. To say that a patient on a ventilator, declared "brain dead", is certain to die and is, therefore, no longer a person, is to deny reality."

"Great care must be taken not to declare a person dead even one moment before death has actually occurred. Death should only be declared after, not before, the fact, as to declare death prematurely is to commit a fundamental injustice. A person who is dying is still alive, even a moment before death, and must be treated as such."

"In conclusion, we believe that destruction of the entire brain can occur, but that criteria to determine this state reliably have not been established. Cessation of brain function is not the same as destruction. In the present state of the art of medicine, a patient with destruction of the entire brain is, at the most, mortally wounded, but not yet dead. Death ought not be declared unless and until there is destruction of the entire brain, and of the respiratory and circulatory systems as well."(4)

1. Byrne, P.A., O'Reilly, S., and Quay, P.M., "Brain Death - An Opposing Viewpoint", JAMA, 242; 1985-1990, 1979.

2. Byrne, P.A., O'Reilly, S., Quay, P.M., and Salsich, P., "Brain Death - The Patient, The Physician", and Society, Gonzaga Law Review, 18/3, 429-516, 82/83.

3. Byrne, P.A., and Quay, P.M., "On Understanding Brain Death", 1 - 45, 1983. Available by calling (402) 477-3993.

4. Evers, J.C., and Byrne, P.A., "Brain Death - Still A Controversy", The Pharos of Alpha Omega Alpha 53/4, 10 - 12, 1990.

5. Byrne, P.A., and Nilges, R.G., "The Brain Stem in Brain Death". Issues in Law & Medicine, 9(1), 3-21, 1993.

6. Byrne, P.A., Nilges, R.G., and Evers, J.C., "Anencephaly - Organ Transplantation?", Issues in Law & Medicine, 9 (1), 23-33, 1993.

7. Quay, P.M., "Utilizing the Bodies of the Dead", St. Louis University Laws Journal, 28/4, 889-927, 1984.

by Paul A. Byrne, M.D. and Richard G. Nilges, M.D. used by permission.

BMJ 2001;322:352-354 ( 10 February ) Education and debate Ethical issues in diagnosis and management of patients in the permanent vegetative state



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