On May 7, 2005, Mrs. Susan Torres, a 26-year-old
vaccine researcher and parishioner at St. Rita’s
Catholic Church in Alexandria, Virginia, collapsed.
She was diagnosed at the Virginia Hospital Center
in Arlington with stage four melanoma, declared
brain dead, and without any hope of recovery.
She was 17 weeks pregnant and doctor kept her
unborn baby alive until it could live outside
her womb. The baby was born on August 2, 2005.
This
incident underscores the timeliness of Professor
Becchi’s examination of the notion of “brain
death.” The birth of a healthy baby girl born
to this mother declared “brain dead” three months
previously, proves that the notion of “brain
death” as an equivalent of real death needs
to be rejected.
Today’s
pastors have left Catholics in a state of disinformation.
Catholics are encouraged, in the name of false
charity, to favor the donation of even vital
organs. This encouragement is based on a supposition-the
notion of “brain death”-that not only contradicts
common sense and raises grave moral questions,
but is being shown by science itself to be a
rash and unfounded assumption. For this reason
we offer readers the following article by Professor
Paolo Becchi, Associate Professor of Philosophy
of Law at the University of Genoa. [The subtitles
inserted at various points are editorial insertions.
-Ed.]
Debate
about the time when life begins was stimulated
in Italy by the contested approval of a law
on assisted procreation (Law 40 of 2004). On
the question of the end of life, however, and
in particular on the transplantation of organs
from “cadavers,” the debate seemed exhausted
in the period immediately after the approval,
by a large majority, of the new law on transplants
(Law 91 of 2004). Debate on this latter law
focused on the so-called “silence-informed consent”
criterion to be used for the declaration of
intent (Article 4). This criterion is, in my
opinion, a dubious one; even more questionable
is the manner in which the then Minister of
Health, Rosy Bindi, circumvented the law by
sending citizens a donor card that not only
was not foreseen by the law, but which in fact
prevented its application in a crucial respect.
It is true that today, five years after the
application of the law, we are still in a “transitory”
phase (regulated by Article 23), although this
is euphemistic language. But this is not my
topic in this article.1
My
intention here is to raise doubts in another
area, not about the law on transplants itself,
but rather about the presupposition on which
it is based: namely, that at the moment the
removal takes place the donor is already a “cadaver.”
Can we be sure of this? I start from a banal
observation that arises from a comparison of
the two laws to which I just referred.
The
Redefinition of Death
We
have deemed it a duty to protect by law an entity
the size of a drop in a test tube (for example,
by prohibiting the freezing of embryos, and
suppressing, not to say prohibiting, prenatal
diagnosis), while it is permitted to treat a
flesh and blood human being with normal body
temperature, a rosy complexion, normal heartbeat
and respiration maintained by life support devices
in the same way as a cadaver.
One
might object: this fact is only apparently disconcerting.
Embryos, already at their first development,
are already Jiving beings (and this explains
the great attention devoted to them), while
once brain death has been ascertained, the patient
is no longer living but dead: a cadaver that
only seems alive. This conclusion was presented
as a scientific fact established once and for
all at the end of the 1960’s, when a committee
at Harvard Medical School issued a celebrated
report establishing a substantial equivalence
between the diagnosis of irreversible coma (established
by rigorous clinical criteria that were supposed
to establish the permanent loss of brain function)
and brain death, and the equivalence in turn
between brain death and actual death.2
The
Motives for Its Development
Thus
a new definition of death was established, a
definition that, for various reasons, found
wide acceptance over the following years. In
the first place, scientific knowledge at that
time seemed to confirm that patients in irreversible
coma would suffer cardiac arrest within a short
time. Secondly, such a definition presented
the best support for the development of transplant
techniques that were being developed at just
that time (Christian Barnard had performed the
first heart transplant in December, 1967). Thirdly,
this definition seemed to remove the obstacle
of euthanasia: if the patient whose brain had
irreversibly stopped functioning was dead, removing
his heart or interrupting artificial respiration
was not equivalent to killing him. As is apparent,
from the outset motives beyond the therapeutic
pushed for a redefinition of death.
The
connection between the new definition of death
and transplants is also apparent from legislation
then introduced. Although this study focuses
on Italy, similar laws were being enacted elsewhere
at about the same time. Already in 1969 a decree
by the minister of health and another the following
January, making use of standards like those
in the Harvard report, introduced the concept
of brain death with explicit reference to the
problem of withdrawing organs for the purpose
of transplant. It is significant that soon thereafter,
on February 5, 1970, a decree (No. 78) by the
president of the Republic, as proposed by the
minister of health, for the first time authorized
removal of the heart and its parts. Since then
the legislature has done no more than indicate
the diverse criteria for ascertaining death;
the first overall law regarding transplants
(Law 644 of 1975) did not restrict the previous
decrees, even to the extent of defining death.
This was done for the first time in 1993 with
Law 578 (and a related ministerial decree that
went into effect the following year), according
to which death “is identified with the irreversible
cessation of all brain function” (Article 1).
The
law not only introduces the definition of total
brain death, but further-changing course with
respect to the law of 1975-broadens the criteria
for determining death. These criteria were developed
for subjects affected by encephalic lesions
and subject to attempts at resuscitation; the
law applies to all people who find themselves
in that condition, regardless of whether they
are donors or not. Even if formally separate
from the question of transplants, from the moment
it took effect this law modified conditions
for the removal of organs. And the most recent
law on transplants, in effect since 1999, only
repeats the earlier one in this regard. The
law on transplants has actually made it easier
to get consent (this change is in effect already
in the “transitory” period); it has maintained
the definition of death and the manner foreseen
for its verification unaltered, as though they
had been definitively established in 1993-4.
These criteria therefore constitute the current
basis for the licity of the removal of organs.
The
Ethical-philosophical Debate About Brain Death
Thus,
in the decade of the 1990’s, Italy, like many
countries, not only accepted the concept of
brain death but actually established its definition
by law. At the same time in the United States
of America, where that definition had first
been formulated, the concept was called into
question and re-examined.
Opposition
In
fact, from the very beginning, philosophers
had expressed grave perplexity about the new
definition of death. A great philosopher of
the 20th century, Hans Jonas [1903-33,
author of The Imperative of Responsibility
amongst other things; his writing is largely
concerned with the philosophical dilemmas created
by technology. -Ed.] was also a protagonist
in the contemporary debate on bioethics. One
month after publication of the Harvard report,
he spoke at a conference on the subject of experiments
on human subjects,
expressing his firm opposition. His Leitmotiv
was the following: we do not know with certainty
the line between life and death, and a definition-in
particular one introduced with the manifest
intention of favoring the removal of organs-cannot
make up for this lack of knowledge. When the
brain has stopped functioning irreversibly we
can suspend artificial life support (Jonas will
go on to argue that we are obliged to, because
it would be against human dignity to maintain
a human being in this condition) not because
the patient is already dead, but because it
makes no sense to prolong life in such conditions.
Already in Jonas we find the dilemma, well emphasized
by Jonsen,3
that stands at the beginning of discussion about
brain death: should we stop life support to
permit the patient to die, or are we stopping
the respirator attached to a body that is already
dead? The second answer was chosen, with the
implication that, if we are stopping the respirator
of a dead man, why not keep it going to maintain
access for the purpose of transplants?
Jonas
believed that the first path should have been
taken. He repeatedly criticized the new definition
of death. His most famous writing on this subject,
published in 1974 with the significant title
Against the Stream, has become a classic.4
Less well known is the fact that Jonas, shortly
before his death, returned to the problem in
his correspondence with a German doctor friend.
This letter is worth mentioning, if only in
passing.
In
October, 1992, a young woman fell into a coma
after a traffic accident. She would never wake
up from this coma; after the necessary tests,
she was declared in a state of brain death.
It was decided to remove the organs, with the
permission of her parents, when doctors determined
that she was pregnant. Obviously, preparations
for the removal of organs were suspended and
the doctors decided to carry on the pregnancy.
Discussion arose in Germany on the concept of
brain death, and many wondered how a “cadaver”
could carry on a pregnancy and then-as actually
happened-”decide” to interrupt it with a spontaneous
abortion when the fetus was no longer alive.
In this regard I would like to cite a passage
from Jonas drawn from his correspondence with
one of the doctors involved in the case:
Willingly
or not, my dear friend, you or better, all of
you, have, by your well reasoned behavior, contradicted
the current definition of death. You said: by
respiration (and other interventions) we want
to stop the body of Marion from becoming a cadaver
so that it can carry on the pregnancy. Believing
it capable of this, or at least wanting to give
it this possibility, you based your action on
the residual life in her-that is, the life of
Marion! In fact, the body is as uniquely the body
of Marion as the brain was the brain of Marion.
The fact that the experiment failed in this case
(it seems that in prior, less extreme cases it
has already succeeded) can as little be used to
disprove the fact that this is impermissible as
a spontaneous abortion can be used to establish
that pregnancy in general is impossible. You sincerely
believed in the possibility of its success, which
is to say you believed in the functional capacity
of a body subject to brain death as necessary
for this plan and maintained by your ability.
This means that you believed in her LIFE as temporarily
prolonged for the sake of the child. This belief
cannot be refused in other cases of coma for other
purposes!5
One might object that, interesting as these observations
are, they demonstrate nothing more than the coherence
of Jonas’s thinking. They are indeed of great
interest for Jonas’s biography, but in the meantime
his “old” position has taken on new relevance,
and has become much less isolated than it was
at the outset. With regard to Jonas, the writings
of Josef Seifert6
and more recently of Robert Spaemann are noteworthy.
These two authors, both of Catholic inspiration,
are at least in some respects in intellectual
accord with Jonas. All these authors have in common
the idea that, in the uncertainty or impossibility
of proving with certainty that a person is dead,
he should be treated as still living.
Second
Thoughts
It
is striking that, even in a school of thought
at the antipodes from that of Jonas, Seifert and
Spaemann, it is now openly admitted that “brain
death” was nothing but a bold expedient by which
human beings were defined as dead when they were
not so in fact. This is the conclusion reached
today by a philosopher well known for his utilitarian
views: Peter Singer.
Here,
too, it is worth summarizing the course of his
development. At the beginning of the 1990’s, Singer,
then a professor in Melbourne, was called to an
important hospital of that city to be part of
a committee that was to investigate some ethical
questions relating to the problem of consent;
among these was the question of anencephaly. Newborns
afflicted with this grave defect are not capable
of becoming fully conscious, lacking the “superior”
part of the brain (the cerebral hemispheres, including
the cerebral cortex) and the cranial vault that
would contain them; the “inferior” part, made
up of the encephalic
trunk, is often intact, if sometimes little developed.
The anencephalic newborn is thus capable of breathing
spontaneously, since this activity depends on
the trunk, but it has an unhappy prognosis: generally
such children survive for a period ranging from
several days to a few weeks before suffering cardio-circulatory
arrest.
Singer,
who in previous years had been a proponent of
“total brain death,” thus found himself faced
with the following problem: why not pass from
that definition of death to a “cortical” one,
so as to also declare anencephalics dead? Some
members of the committee wanted to go in that
direction; Singer, to everyone’s surprise, did
not follow. He explained the reasons for his dissent
in his book Rethinking Life & Death, published
in 1994 and soon after translated also into Italian.
At least a passage from this book deserves to
be cited in full:
The
panel’s deliberations made me think harder about
brain death. I was beginning to see where the
trouble began. The Harvard Brain Death Committee
was faced with two serious problems. Patients
in an utterly hopeless condition were attached
to respirators, and no-one dared to turn them
off. Organs that could be used to save lives were
rendered useless by waiting for the circulation
of the blood in potential donors to stop. The
committee tried to solve both these problems by
the bold expedient of classifying as dead those
whose brains had ceased to have any discernible
activity. The consequences of the redefinition
of death were so evidently desirable that it met
with scarcely any opposition, and was accepted
almost universally. Nevertheless, it was unsound
from the start. Solving problems by redefinition
rarely works, and this case was no exception.7
Of
course, the conclusion that Singer draws from
crises of brain death is, obviously, very different
from that of the philosophers previously cited.
For them, if the “brain dead” are still alive
at the time when life support is removed, that
means that it is that action that ends their
life and thus ought not be done; for Singer,
by contrast, it is licit because life is not
a sacred and inviolable good. Also in this case
(as in others) there is a “third way,” as always
the most difficult, one that I have tried to
develop on another occasion; but here I would
only like to emphasize a different aspect, namely
that, irrespective of their different ethical
conclusions, all of the cited authors start
from the same criticism of the notion of brain
death.
One
might ask what pushed Singer to put himself,
on this last point, in the company of Jonas,
Seifert and Spaemann, light years apart from
him and of whose existence he seems unaware.
We find at least an indirect answer in his recent
contribution on the subject, Morte cerebrate
ed etica delta sacralita delta vita (Brain
death and the ethics of the sanctity of life),
where the author publishes his sources. They
are, in fact, scientific sources of the first
rank, which together with others contribute
to describing the crisis in which the new definition
of death founded on exclusively neurological
criteria has fallen, not only from a philosophical
point of view but also from a medical-scientific
one.
The
Medical-scientific Debate on Brain Death
Although
lacking any specific medical expertise, I will
nonetheless permit myself to underline at least
two crucial aspects of this latter point. The
first concerns the possibility of ascertaining
total brain death on the basis of the criteria
and tests currently in use; the second deals
with the thesis that brain death is nevertheless
an indication of the death of the whole organism.
Unascertainability
of Brain Death
The
first aspect was well analyzed by two American
doctors, Robert Truog and James Fackler, in
an essay published in 1992 with the significant
title: “Rethinking Brain Death.”8
According to the authors, documented scientific
research shows that patients who meet the current
clinical criteria and neurological tests for
brain death do not necessarily show the irreversible
loss of all brain functions. This would
indicate that the complete loss of such functions
could not be diagnosed on the basis of adopted
test standards.
To
support their argument the two doctors make
four arguments that can be briefly summarized.
First of all, many patients judged to be in
a state of “brain death” by the test in practice
show undiminished endocrine hypothalamic function.
This means that in some cases of patients declared
brain dead, hormonal activity of the pituitary
gland and of the nerve center (the hypothalamus)
that controls it persists, and thus the regulation
of hormonal activity persists. In second place,
in many patients in this condition it is possible
to register with an electroencephalogram weak
electric activity localized in some parts of
the cerebral cortex, destined to stop within
24-48 hours; in third place, some patients continue
unmistakably to react to external stimuli, as
is shown, for example, by the increase of heart
rate and blood pressure after a surgical incision
before the removal of organs (these revelations
apply to the cases of patients declared brain
dead by British criteria, which are purely clinical
and refer to the state of the encephalic trunk).
In the fourth place, many patients defined as
brain dead retain their spinal reflexes, the
significance of which came to be recognized
only during and after the years when brain death
was being defined.
On
the basis of an attentive analysis of these
four elements, the two authors reached the conclusion
that current clinical means cannot ascertain
the stopping of all functions but only of some
of them, and that at most they diagnose cortical
death.
Brain
Death Is Not an Indication of Death with Respect
to the Whole Organism
The
second aspect has been examined most closely
by Alan Shewmon, an authoritative American neurologist
who has changed his views in the course of his
career. He has gone from being a convinced proponent
of brain death as a concept to one of its most
implacable critics.
As
in the case of the two previous authors, here
also the point of departure was an empirical
revelation: organisms said to be in a state
of brain death survive much longer than could
have been imagined, and this implies that the
brain is not as essential as had been believed
for the integrated function of the organism.
Against the prevailing medical theory, which
holds that the brain is the organ responsible
for integration of different parts of the body
and thus constitutes its “critical system,”
Shewmon advances his own thesis: the “critical
system” of the body cannot be localized in a
single organ, however important the brain may
be. According to the neurologist, this hypothesis
would furnish an explanation for the prolonged
survival (in a record case for more than 14
years) of subjects for whom brain death had
been diagnosed. Such subjects, to a great extent
pediatric patients, maintain intact certain
functions that were thought to belong to the
brain, such as the regulation of body temperature,
homeostasis of fluids, reaction to infections,
and bodily growth, all indications of the persistence
of some degree of integrating activity.
Shewmon
concludes from this that it is completely mistaken
to maintain that brain death indicates death
of the whole organism. Thus one of the pillars
on which the concept of brain death was based
is called radically into question, namely the
premise that the brain is “the cerebral integrator
of the body.” The death of the brain does not
cause disintegration of the body. Such a disintegration
is rather the consequence of damage affecting
several systems of organs and the reaching of
a critical level, a “point of no return” which
determines the beginning of the process of death
and renders ineffective any medical intervention
aimed at avoiding this inevitable end.
According
to Shermon, a pronouncement of death should
not be based on diagnosis of a clinical condition
of brain death. The determination should rather
be made with reference to several parameters,
such as those connected to respiratory, circulatory,
and neurological activity.9
When it is clear that a point of no return has
been reached, the patient would be removed from
the apparatus for assisted breathing and, after
twenty minutes-the time Shermon considers necessary
to be sure of the impossibility of a spontaneous
resumption of the vital functions of the subject-one
could proceed to the declaration of death.
A
Big Question Mark
Shewmon
reaches the same conclusion as Jonas by a different
route. The larger question that arises is whether
in respecting such criteria transplants would
still be possible. Conditions would surely no
longer be optimal, and the advantages would
certainly be more limited. But here the problem
that must be posed is that if the organs are
removed-as recent studies admit-from donors
who are in a nether world between life and death,
then it is the organ removal itself that causes
the definitive transition to the other side.
The
legislation that accepts brain death has been
based on the assumption that the death of the
patient has already been verified when organ
removal takes place. If this supposition was
debatable from the outset on a philosophical
level, it has at last been shown to be unfounded
also from a scientific point of view. If the
legal requirement for the removal of organs
is that it be done on subjects whose irretrievable
loss of all brain function has been verified,
then we must admit that today many organ removals
take place in open violation of the law. Instead
of continuing to operate on the basis of a fiction,
we would like to openly discuss whether or not
it is acceptable to remove organs from patients
in a condition from which they may never recover,
but which is not yet equivalent to death.10
As
in the case of assisted pregnancy, so too in
the case of organ transplants: advances in technology
applied to medicine are raising difficult new
ethical questions. The technical possibility
of organ transplants has pushed us to use patients
whose fate was in any case sealed as exchange
material for other human beings. In the same
way today the technical possibility of in
vitro fertilization would push us (although
the Italian legislature
has moved in the other direction) to use so-called
supernumerary embryos-by destroying them-for
the cure of some diseases. In the case under
review the question was: “what to do with patients
who, subject to resuscitation, could not revive
since their brain has irreversibly stopped functioning?”
We have pretended to resolve the problem in
a simplistic manner by defining them as dead,
even if the organism could continue to function
well with the help of a respirator; perhaps
even better than those few embryo cells in a
test tube which do not yet have a brain.
Translated exclusively for Angelus Press from
SiSiNoNo, June 30, 2004.
1.
I have already done so on many other occasions,
including: P. Becchi, P. Donadoni “Informazioni
e consenso all’espianto di organi da cadaveri,”
Politico del diritto XXXII (2001), 257-87;
P. Becchi, “Tra(i)pianti, Spunti critici intorno
alia legge in materia di donazione degli organe
e alia sua applicazion” in Ragion pratica,
18 (2002), 275-88, and P. Becchi, “Information
und Einwilligung zur Organspendung: Das neue
italienische Gesetz und seine “ewige” Ubergangsphase,”
Hirntod und Organspende, ed. A. Bondolfi,
U. Kostka, K. Seelmann (Basal: Schwabe, 2003),
pp. 149-61.
2.
Cf. “A Definition of Irreversible
Coma: Report of the Ad Hoc Committee of the
Harvard Medical School to Examine Brain Death,”
Journal of the American Medical Association,
205 (1968), pp.337-40. For critical discussion
of this document see, e.g., M. Giacomini, “A
Change of Heart and a Change of Mind? Technology
and the Redefinition of Death in 1968,” Social
Science and Medicine, 44 (1997) 1465-82;
R.M. Veatch, Transplantation Ethics (Washington,
D.C.: Georgetown U. Press, 2000); G. Belkin,
“Brain Death and the Historical Understanding
of Bioethics,” Journal of the History of
Medicine, 58 (2003) 325-61.
3.
Cf. A.R. Jonsen, The Birth of Bioethics (New
York: Oxford U. Press, 1998), p.240.
4.
Jonas’s response came immediately after the
Harvard Committee’s report. It dates to September
1968 and was part of the author’s intervention
on experiments on human subjects. His essay
Against the Stream was written in 1970
and published in 1974; here Jonas discusses
the objections made by some members of the Committee
with whom he had been in contact in the interim.
Two postscripts follow this essay, from 1976
and 1985, showing Jonas’s continued attention
to this subject. All these works are collected
in Jonas, Technik, Medizin undEthik: Zur
Praxis des Prinzips Verantwortung (1985).
5.
Cf. Hans Jonas, “Brief an Hans-Bernhard Wiirmeling,”
Wann ist der Mensch tot? Organverpflanzung
und Hirntodkriterium, ed. J. Hoff and J.
in der Schmitten, Reinbek bei Hamburg, Rowohlt
(1994): 21-27.
6.
Cf. J. Seifert, Leib und Seele: Ein Beitrag
zur philosophischen Anthropologie (Salzburg,
1973); J. Seifert, Das Leib-Seele Problem
und die gegenwartige philosophische Diskussion:
Eine kritisch-systematische Analyse (Darmstadt,
1979); J. Seifert, What Is Life? On the Originality,
Irreducibility, and Value of Life, ed. H.G.
Callaway (Amsterdam, 1997); J. Seifert, “Is
“Brain Death” Actually Death?” Monist, 16(1993),
175-202.
7.
P. Singer, Rethinking Life and Death: The
Collapse of Our Traditional Ethics (New
York: St. Martins, 1994), p.51.
8.
Cf. R.D. Truog and J.C. Fackler, “Rethinking
Brain Death,” Critical Care Medicine, 20
(1992), 1705-1713. Starting from the points
discussed in that article, Truog has returned
several times to the question of brain death.
In a 1997 article (“Is It Time to Abandon Brain
Death?” Hastings Center Report, 27 [1997],
29-37) instead of proposing the substitution
of cortical death for brain death, as he had
done in the 1992 article with Fackler, Truog
looks for a return to the traditional cardio-respiratory
standard for declaring death and, at the same
time, aims to separate the question of transplants
from the debate on brain death. He maintains
that transplantation can only be practiced by
some justification other than that of brain
death. Truog’s desire for an ethical foundation
for transplants inspired his article “Organ
Transplantation without Brain Death,” Annals
of the New York Academy of Science, 913
(2000), 229-39.
9.
Cf. e.g. D.A. Shewmon, “‘Brain Stem Death,’
‘Brain Death,’ and Death: A Critical Reevaluation
of the Purported Equivalence,” Issues in
Law & Medicine, 14 (1998), 125-45, and
more recently “The Brain and Somatic Integration:
Insights into the Standard Biological Rationale
for Equating ‘Brain Death’ with Death,” Journal
of Medicine and Philosophy, 26 (2001), 457-78.
10.
Cf.
S.J. Youngner, R.M. Arnold, “Philosophical Debates
about the Definition of Death: Who Cares?”
Journal of Medicine and Philosophy, 26 (2001),
527-37.
Courtesy of the Angelus
Press, Kansas City, MO 64109
translated from the Italian
Fr. Du Chalard
Via Madonna degli Angeli, 14
Italia 00049 Velletri (Roma)
August
2005 Volume XXVIII, Number 8 |
