Although death by neurologic criteria is legally recognized throughout the United States, state laws and clinical practice vary concerning three key issues: the medical standards used to determine death by neurologic criteria, management of family objections before determination of death by neurologic criteria, and management of religious objections to declaration of death by neurologic criteria. The American Academy of Neurology and other medical stakeholder organizations involved in the determination of death by (...) neurologic criteria have undertaken concerted action to address variation in clinical practice in order to ensure the integrity of brain death determination. To complement this effort, state policymakers must revise legislation on the use of neurologic criteria to declare death. We review the legal history and current laws regarding neurologic criteria to declare death and offer proposed revisions to the Uniform Determination of Death Act and the rationale for these recommendations. (shrink)

The neurological criteria for the determination of death remain controversial within secular and Catholic circles, even though they are widely accepted within the medical community. In Determining Death by Neurological Criteria, Matthew Hanley offers both a practical and a philosophical defense. Hanley shows that the criteria are often misapplied in clinical settings, leading to cases where persons declared dead apparently spontaneously revive. These instances are often connected to a rushed decision to retrieve donated (...) organs, thus undermining the trust of the public in organ donation. Hanley calls on health care institutions to take seriously their obligation to establish strict protocols for the determination of death, including who may conduct the examinations. From a broader perspective, Hanley considers how the criteria rely on a philosophical conception of the person as a living organism whose unity disintegrates at death. This view, he notes, corresponds to the Catholic conviction that the soul is the life-principle of the body, which departs at death, bringing about the destruction of the body-soul composite. The Vatican, recognizing that death is a medical judgment, has generally given its approval to the criteria. Hanley also reviews the many and various objections offered by detractors, including against the use of the apnea test, which is faulted as a practice that sometimes hastens death. The problem of the continued presence of certain vital functions within the deceased body of the brain dead is explored in detail, with reference to particular cases and to solutions proposed by leading physicians and bioethicists. Hanley likewise addresses the dilemma of having two separate standards for death, one neurological and the other cardiopulmonary. Given the possibility of resuscitation following loss of the cardio-circulatory system, he concludes that the neurological criteria must be the true standard. Stoppage of the heart leads swiftly to the final necrosis of the brain. -- Provided by publisher. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Incoherence of Determining Death by Neurological Criteria: A Commentary on Controversies in the Determination of Death, A White Paper by the President’s Council on Bioethics*Franklin G. Miller** (bio) and Robert D. Truog (bio)Traditionally the cessation of breathing and heart beat has marked the passage from life to death. Shortly after death was determined, the body became a cold corpse, suitable for (...) burial or cremation. Two technological changes in the second half of the twentieth century prompted calls for a new, or at least expanded, definition of death: the development of intensive care medicine, especially the use of mechanical ventilators, and the advent of successful transplantation of vital organs. Patients with profound neurological damage, leaving them incapable of breathing on their own and in an irreversible coma, could be maintained for some period of time with the aid of mechanical ventilation. The situation of these patients posed two ethical questions. Is it appropriate to stop life-sustaining treatment? If so, is it acceptable to retrieve vital organs for transplantation to save the lives of others before stopping treatment?In 1968, the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death proposed that death could be determined on the basis of neurological criteria, thus providing a positive answer to these two questions (Ad Hoc Committee 1968). According to the position of this committee, patients diagnosed with the cessation of brain function are dead, despite the fact that they breathe and circulate blood with the aid of mechanical ventilation. [End Page 185] Because they are dead, it is appropriate, indeed imperative, to stop mechanical ventilation. And because they are dead, it becomes ethical to procure vital organs for transplantation before stopping what otherwise would be life-sustaining treatment. Remarkably, this innovative neurological determination of death became, with little debate or controversy, the established position in medical ethics and the law throughout the United States.The Harvard Committee articulated the diagnosis of “irreversible coma,” but merely asserted that this condition constituted death. No explanatory rationale was provided. It fell to the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research to provide an authoritative rationale in its 1981 report, Defining Death. The second paragraph of the report set the stage as follows: “The question addressed here is not inherently difficult or complicated. Simply, it is whether the law ought to recognize new means for establishing that the death of a human being has occurred” (President’s Commission 1981, p. 3). The Commission claimed that “death is a unitary phenomenon” (p. 7) and that the determination of death by neurological criteria, in terms of the absence of all brain function, is consistent with the traditional conception of death as the cessation of vital functioning of the organism as a whole. The key issue is the integrative functioning of the human organism, which ceases to exist, according to the Commission, when the whole brain, including higher cortical areas and the brain stem, fails to function. Although “brain-dead” patients do not appear to be dead—i.e., the reality of their death is “masked” by the activity of mechanical ventilation—the patient’s body has irreversibly lost all capacity for integrative functioning. In the words of the Commission: “When artificial means of support mask this loss of integration as measured by the old methods [cessation of respiration and heart beat], brain-oriented criteria and tests provide a new window on the same phenomenon” (p. 33). The President’s Commission was instrumental in developing and establishing “The Uniform Definition of Death Act”: “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” (p. 2).Although the question posed by the President’s Commission was easy to articulate, the answer, over time, has proved complicated and controversial. The coherence and cogency of determining death by neurological criteria has been challenged. Various experts have demonstrated that “brain-dead” patients maintained on mechanical ventilation display a range of vital, integrative, functioning, which conflicts with the judgment that they are dead (Truog and... (shrink)

The diagnosis of death by neurological criteria (colloquially known as ‘brain death’) is accepted in some form in law and medical practice throughout the world, and has been endorsed in principle by the Catholic Church. However, the rationale for this acceptance has been challenged by the accumulation of evidence of integrated vital activity in bodies diagnosed dead by neurological criteria. This paper sets out 10 different Catholic responses to the current crisis of confidence and (...) assesses them in relation to a Catholic understanding of philosophical anthropology. Having considered each of these responses, none is found to provide good grounds for the moral certainty about death needed for current transplant practice to be ethically acceptable. Unless adequate grounds for the use of neurological criteria can be restored, current transplantation practice will have become what Pope John Paul II called a ‘furtive, but no less serious and real, form of euthanasia’. (shrink)

Death by neurological criteria (DNC) continues to stir global controversy. Philosophers and theologians contest its moral significance, clinicians and bioscientists debate its probative accuracy, a...

In lieu of an abstract, here is a brief excerpt of the content:The Incoherence of Determining Death by Neurological Criteria: A Commentary on Controversies in the Determination of Death, A White Paper by the President’s Council on Bioethics*Franklin G. Miller** (bio) and Robert D. Truog (bio)Traditionally the cessation of breathing and heart beat has marked the passage from life to death. Shortly after death was determined, the body became a cold corpse, suitable for (...) burial or cremation. Two technological changes in the second half of the twentieth century prompted calls for a new, or at least expanded, definition of death: the development of intensive care medicine, especially the use of mechanical ventilators, and the advent of successful transplantation of vital organs. Patients with profound neurological damage, leaving them incapable of breathing on their own and in an irreversible coma, could be maintained for some period of time with the aid of mechanical ventilation. The situation of these patients posed two ethical questions. Is it appropriate to stop life-sustaining treatment? If so, is it acceptable to retrieve vital organs for transplantation to save the lives of others before stopping treatment?In 1968, the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death proposed that death could be determined on the basis of neurological criteria, thus providing a positive answer to these two questions (Ad Hoc Committee 1968). According to the position of this committee, patients diagnosed with the cessation of brain function are dead, despite the fact that they breathe and circulate blood with the aid of mechanical ventilation. [End Page 185] Because they are dead, it is appropriate, indeed imperative, to stop mechanical ventilation. And because they are dead, it becomes ethical to procure vital organs for transplantation before stopping what otherwise would be life-sustaining treatment. Remarkably, this innovative neurological determination of death became, with little debate or controversy, the established position in medical ethics and the law throughout the United States.The Harvard Committee articulated the diagnosis of “irreversible coma,” but merely asserted that this condition constituted death. No explanatory rationale was provided. It fell to the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research to provide an authoritative rationale in its 1981 report, Defining Death. The second paragraph of the report set the stage as follows: “The question addressed here is not inherently difficult or complicated. Simply, it is whether the law ought to recognize new means for establishing that the death of a human being has occurred” (President’s Commission 1981, p. 3). The Commission claimed that “death is a unitary phenomenon” (p. 7) and that the determination of death by neurological criteria, in terms of the absence of all brain function, is consistent with the traditional conception of death as the cessation of vital functioning of the organism as a whole. The key issue is the integrative functioning of the human organism, which ceases to exist, according to the Commission, when the whole brain, including higher cortical areas and the brain stem, fails to function. Although “brain-dead” patients do not appear to be dead—i.e., the reality of their death is “masked” by the activity of mechanical ventilation—the patient’s body has irreversibly lost all capacity for integrative functioning. In the words of the Commission: “When artificial means of support mask this loss of integration as measured by the old methods [cessation of respiration and heart beat], brain-oriented criteria and tests provide a new window on the same phenomenon” (p. 33). The President’s Commission was instrumental in developing and establishing “The Uniform Definition of Death Act”: “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” (p. 2).Although the question posed by the President’s Commission was easy to articulate, the answer, over time, has proved complicated and controversial. The coherence and cogency of determining death by neurological criteria has been challenged. Various experts have demonstrated that “brain-dead” patients maintained on mechanical ventilation display a range of vital, integrative, functioning, which conflicts with the judgment that they are dead (Truog and... (shrink)

This commentary challenges the conclusions reached by Franklin Miller and Robert Truog in their criticism of the President's Council's White Paper, "Controversies in the Determination of Death." I agree with much of Miller and Truog's criticism of the rationale offered by the President's Council for accepting neurological criteria for determining death but argue that they too quickly dismiss the alternative rationale of determining death by neurological criteria-i.e., the destruction of the psychophysical integrity of (...) the human being that occurs when the potential for consciousness and every other mental function is lost due to catastrophic injury to the brain. By focusing on the death of bodies instead of human beings, their view absurdly implies that decapitation would not necessarily result in one's death. Since total brain failure is a form of physiological decapitation, the neurological criterion coheres perfectly well with the ordinary understanding of decapitation as death. (shrink)

Volume 20, Issue 6, June 2020, Page 30-32.

Ethical concerns regarding the conceptual framework for the determination of death by neurological criteria, including several clinical and diagnostic practices, are addressed. The significance of a diagnosis of brain death, diagnostic criteria, and certain technical aspects of the brain-death exam are presented. Standard and ancillary tests that typically help achieve prudential certitude that an individual has died are indicated. Ethical concerns surrounding interinstitutional variability of testing protocols are evaluated and considered, as are potential apnea-testing (...) confounders such as hypotension, hypoxemia, hypercarbia, and penumbra effects during ancillary testing. Potential adjustments to apnea-testing protocols involving capnography, thoracic impedance monitors, or spirometers to assess respiratory efforts are discussed. Situations in which individuals determined to be brain dead “wake up,” or fail to manifest the imminent cessation of somatic functioning typically seen when supported only by a ventilator, are also briefly reviewed. (shrink)

Although medicolegal challenges to the use of neurologic criteria to declare death in the USA have been well-described, the management of court cases in the United Kingdom about objections to the use of neurologic criteria to declare death has not been explored in the bioethics or medical literature. This article (1) reviews conceptual, medical and legal differences between death by neurologic criteria (DNC) in the United Kingdom and the rest of the world to contextualize (...) medicolegal challenges to DNC; (2) summarizes highly publicized legal cases related to DNC in the United Kingdom, including the nuanced 2022 case of Archie Battersbee, who was transiently considered dead by neurologic criteria, but ultimately determined to be in a vegetative state/unresponsive-wakeful state; and (3) provides an overview of ethical issues raised by medicolegal challenges to DNC in the United Kingdom and a comparison to the management of these challenges in the USA. (shrink)

Human life and death should be defined biologically. It is important not to conflate the definition of death with the criteria for when it has occurred. What is distinctively "human" from a scientific or normative perspective has nothing to do with what makes humans alive or dead. We are biological organisms, despite the fact that what is meaningful about human life is not defined in biological terms. Consequently, as in the rest of the realm of living beings, (...) human beings die when they no longer function biologically as organisms. In contrast, a determination of exactly when death has occurred, required to serve various social purposes, combines social and normative considerations with biological facts. (shrink)

Controversies surrounding the determination of death by neurologic criteria (DNC), also known as brain death, have become increasingly common over the last decade, occasionally leading to parental refusal of all or part of an evaluation or declaration of DNC. We performed a prospective, crosssectional study of pediatric neurologists and intensivists who participate in professional listservs to ascertain perspectives and practices concerning the evaluation of DNC, specifically on obtaining permission for evaluations and managing refusals. Of the 334 respondents (...) who had performed an evaluation for DNC, 35 percent reported they had experienced at least one parental refusal, and 64.4 percent reported that they did not seek permission to perform an evaluation. Pediatric neurologists, careproviders who had less experience doing evaluations, and careproviders who had experienced parental refusal of an evaluation were more likely to obtain permission from parents. Most (80.8 percent) of respondents reported that their institution had a DNC policy. We found variability in many aspects of DNC evaluations and declarations, as well as the handling of refusals. Lack of consistency may make it more difficult for careproviders and families. Greater understanding of parental refusal of DNC evaluation is essential to inform efforts to increase consistency. (shrink)

Typically, the determination of death by neurological criteria follows a very specific protocol. An apnea test is performed with further confirmation as necessary, and then mechanical ventilation is withdrawn with the consent of the family after they have had an opportunity to “say goodbye,” and at such a time to permit organ retrieval (with authorization of the patient or consent of the next of kin). Such a process maximizes transparency and ensures generalizability. In exceptional circumstances, however, it (...) may be necessary to deviate from this protocol in order to spare family members unnecessary suffering and to reduce moral distress felt by clinical staff. It may also be appropriate, we argue, to refrain from even inquiring about organ donation when the next-of-kin is not only certain to refuse, but lacks the decision-making capacity to potentially consent. The case described in this article calls into question generally reliable assumptions about determination of death by neurological criteria, where the best the clinical team could do for the patient and his family was “the least bad option.”. (shrink)

Drawing on two years of ethnographic fieldwork in Egypt focused on organ transplantation, this paper examines the ways in which the “scientific” criteria of determining death in terms of brain function are contested by Egyptian doctors. Whereas in North American medical practice, the death of the “person” is associated with the cessation of brain function, in Egypt, any sign of biological life is evidence of the persistence, even if fleeting, of the soul. I argue that this difference (...) does not exemplify an irresolvable culture clash but points to an unsettling aspect of cadaveric organ procurement that has emerged wherever organ transplantation is practiced. Further, I argue that a misdiagnosis of the problem, as one about “religious extremism” or a “civilizational clash,” has obfuscated unresolved concerns about fairness, access, and justice within Egyptian medical spheres. This misdiagnosis has led to the suspension of a cadaveric procurement program for over 30 years, despite Egypt’s pioneering efforts in kidney transplantation. (shrink)

In The Gospel of Life, Pope John Paul II encouraged organ donation as a genuine act of charity. Some Catholics reject the notion of vital organ transplantation and the use of neurological criteria to determine a donor’s death before organs are extracted. This article reviews Church teaching on the use of neurological criteria for determining death—including statements by three popes, a number of pontifical academies and councils, and the U.S. bishops—to show that Catholics may (...) in good conscience offer the gift of life through the donation of their organs after death as determined by those criteria, and may in good conscience receive such organs. This article is not a defense of the legitimacy of neurological criteria for determining death but rather a presentation of the moral guidance currently offered by the Church on the legitimacy of organ donation after death has been determined by their use. National Catholic Bioethics Quarterly 11.2 (Summer 2011): 279–299. (shrink)

One of the most important questions when determining when it is appropriate to procure organs from a deceased organ donor is what can be considered death. Currently, there is significant debate over whether brain death is an appropriate method of declaring an individual dead. As it would be illicit to cause the death of a patient by removing their organs, a medical professional must be certain that a brain dead patient is, in fact, dead before the procedure. (...) In this paper, the author makes the case in support of considering brain death actual death. (shrink)

The determination of death by neurological criteria (brain death) is practiced in at least 80 countries, though it is a matter of continuing controversy. At the same time, the brain is central to human life, thinking, and behavior; however, a growing “neurocentrism” or a brain‐focused image of human identity became established in most Western and in many non‐Western societies and acts as a forceful ideology. This paper seeks a broader theoretical and sociocultural basis to approaching (...) class='Hi'>death bioethically by analyzing criticisms aimed at a neurologically focussed vision of human life, and then turning these towards the brain death criteria exposed to the criticism. The overall critique of the “neuro‐self” has scope to offer alternative perspectives to the contested issues in brain‐death criteria. Specifically, the paper examines two major shortcomings of a narrow brain view of life and culture. First, it considers the reduction of the individual to the brain: this is the crux of the neurological way of determining death, and is a way that is seemingly context‐independent and culturally neutral. Second, it considers how dimensions of society and culture for humans are detached from the brain and have little impact on clinical practice and thinking in brain‐death criteria; however, a deeper exploration reveals that they actually have direct relevance and that social and cultural factors have greater contributions to make to the current debates. (shrink)

Some patients who have been diagnosed as “dead by neurologic criteria” continue to exhibit certain brain functions, most commonly, neuroendocrine functions. This preservation of neurologic function after the diagnosis of “brain death” or “brainstem death” is an ongoing source of controversy and concern in the medical, bioethics, and legal literatures. Most obviously, if some brain function persists, then it is not the case that all functions of the entire brain have ceased and hence, declaring such a patient (...) to be “dead” would be a false positive, in any nation with so-called “whole brain death” laws. Furthermore, and perhaps more concerning, the preservation of any brain function necessarily entails the preservation of some amount of brain perfusion, thereby raising the concern as to whether additional areas of neural tissue may remain viable, including areas in the brainstem. These and other considerations cast significant doubt on the reliability of diagnosing either “brain death” or “brainstem death.”. (shrink)

Brain death or determination of death based on the neurological criterion has been an enduring source of controversy in academic and clinical circles. The controversy chiefly concerns how death is defined, and it also bears on the justification of the proposed criteria for death determination and their interpretation. Part of the controversy on brain death and death determination stems from disputed crucial medical facts, but in this paper I formulate another hypothesis about (...) the nature of ongoing controversies. At stake is a misunderstood relationship between, on the one hand, the nature of our lay views about death and, on the other hand, the nature of scientific insights into death and its determination. The misunderstanding of this relationship has partly anchored the controversy and continues to fuel it. Based on a perspective inspired by pragmatism, which stresses the positive contribution of science to ethical and policy debates but also challenges different forms of scientism in science and philosophy found in foundationalist interpretations, I scrutinize three different stances regarding the relationship between lay and scientific perspectives about the definition of death: foundational lay views, foundational expert views, and co-evolving views. I argue that only the latter is sustainable given recent challenges to foundationalist interpretations. (shrink)

In “An Overview of Ethical Challenges Raised by Medicolegal Challenges to Death by Neurologic Criteria in the United Kingdom and a Comparison to Management of these Challenges in the USA,” Ariane L...

Ariane Lewis reviewed medicolegal challenges to Death by Neurologic Criteria (DNC) in the United Kingdom in order to identify and discuss the ethical issues raised (Lewis 2024). Here I briefly clar...

Maddie’s story illustrates the critical importance of healthcare teams (HCTs) having inclusive multidisciplinary provider meetings prior to siloed conversations with families. It is paramount that...

The past decade has witnessed escalating legal and ethical challenges to the diagnosis of death by neurologic criteria. The legal tactic of demanding consent for the apnea test, if successful, can halt the DNC. However, US law is currently unsettled and inconsistent in this matter. Consent has been required in several trial cases in Montana and Kansas but not in Virginia and Nevada. In this paper, we analyze and evaluate the legal and ethical bases for requiring consent before (...) apnea testing and defend such a requirement by appealing to ethical and legal principles of informed consent and battery and the right to refuse medical treatment. We conclude by considering and rebutting two major objections to a consent requirement for apnea testing: a justice-based objection to allocate scarce resources fairly and a social utility objection that halting the diagnosis of brain death will reduce the number of organ donors. (shrink)

Volume 20, Issue 6, June 2020, Page 33-35.

Navigating tragic circumstances in pediatrics requires consideration of parental grief responses. We meet parents where they are, not where we might want them to be. Different parents grieve differ...

Berkowitz and Garrett (2020) raise important arguments in favor of consent for apnea testing used in determining death by neurological criteria (DNC); and yet, a fundamental consideration is left u...

In popular culture, death is typically presented as clear and binary- someone is either walking and talking and alive, or very obviously still and dead. Reality is more complicated than the movies,...

A major appellate court decision from the United States seriously questions the legal sufficiency of prevailing medical criteria for the determination of death by neurological criteria. There may be a mismatch between legal and medical standards for brain death, requiring the amendment of either or both. In South Australia, a Bill seeks to establish a legal right for a defined category of persons suffering unbearably to request voluntary euthanasia. However, an essential criterion of a voluntary (...) decision is that it is not tainted by undue influence, and this Bill falls short of providing adequate guidance to assess for undue influence. (shrink)

In the fall of 2021 a news story reported of a successful experimental xenotransplant of a genetically engineered pig kidney in to the circulatory system of a research subject who was dead by neurological criteria. Although not a first of its kind, this case raises the issue of the ethics of research on those declared brain dead. Such possibilities have been discussed in the published literature since 1974, when Willard Gaylin expressed concern over human dignity when he imagined (...) hospital wards filled with “neomorts” used for education, teaching, research, and manufacturing. In this essay, the author explores the nuances of whether such subjects are considered alive, dead, or something in between. Notions of consent/ permission and risk/benefit are determined by this categorization. After discussing the 2005 Consensus Panel Guidelines on Research with the Recently Dead, the essay concludes with the need for a liminal state between living and dead that respects human dignity but also recognizes the utilitarian value of such experiments to protect fully alive humans. Having not just guidelines but oversight structures such as the University of Pittsburgh’s Committee for Oversight of Research Involving the Dead (CORID) and regulations are necessary if such work is to become more common. (shrink)

BackgroundThe brain death standard allowing a declaration of death based on neurological criteria is legally endorsed and routinely practiced in the West but not in Asia. In China, attempts to legalize the brain death standard have occurred several times without success. Cultural, religious, and philosophical factors have been proposed to explain this difference, but there is a lack of empirical studies to support this hypothesis.Methods476 medical providers from three academic hospitals in Hunan, China, completed a (...) selfadministered survey including a 12-question brain death clinical knowledge assessment and hypothetical vignettes describing brain dead patients.ResultsThe response rate was 95.2 %. Almost all of the providers had heard of the term “brain death.” More than half have encountered presumed brain dead patients. Two-thirds accepted brain death as an ethical standard to determine human death. The mean knowledge score was 8.50 ± 1.83 out of 12. When given the description of a brain dead patient, 50.7 % considered the patient dead, 51.9 % would withdraw life support, and 40.6 % would allow organ procurement. Both provider and patient characteristics contributed to the providers’ decisions. Ethical acceptance was the most important independent predictor for brain death acknowledgement, followed by high knowledge scores, and the belief that the soul lives in the brain. Religious faith and associated beliefs did not have a significant effect.ConclusionsNotwithstanding scarce official accounts, recognition of the brain death standard is not uncommon in China. Chinese medical providers can adequately define the medical characteristics of brain death and accept it in theory, but hesitate to apply it to practice in the vignettes. Legalization is paramount in providing the protection providers need to comfortably declare brain death. However the medical decision-making surrounding brain death is complex and the provider's past experiences and emotions may also influence the process. (shrink)

This issue’s “Legal Briefing” column covers recent legal developments involving total brain failure. Death determined by neurological criteria (DDNC) or “brain death” has been legally established for decades in the United States. But recent conflicts between families and hospitals have created some uncertainty. Clinicians are increasingly unsure about the scope of their legal and ethical treatment duties when families object to the withdrawal of physiological support after DDNC. This issue of JCE includes a thorough analysis (...) of one institution’s ethics consults illustrating this uncertainty. This experience is not unique. Hospitals across the country are seeing more DDNC disputes. Because of the similarity to medical futility disputes, some court cases on this topic were reviewed in a prior “Legal Briefing” column. But a more systematic review is now warranted. I categorize recent legal developments into the following nine categories: 1. History of Determining Death by Neurological Criteria2. Legal Status of Determining Death by Neurological Criteria3. Legal Duties to Accommodate Family Objections4. Protocols for Determining Death by Neurological Criteria5. Court Cases Seeking Physiological Support after DDNC6. Court Cases Seeking Damages for Intentionally Premature DDNC7. Court Cases Seeking Damages for Negligently Premature DDNC8. Court Cases Seeking Damages for Emotional Distress9. Pregnancy Limitations on DDNC. (shrink)

The current definition of death used for donation after cardiac death relies on a determination of the irreversible cessation of the cardiac function. Although this criterion can be compatible with transplantation of most organs, it is not compatible with heart transplantation since heart transplants by definition involve the resuscitation of the supposedly "irreversibly" stopped heart. Subsequently, the definition of "irreversible" has been altered so as to permit heart transplantation in some circumstances, but this is unsatisfactory. There are three (...) available strategies for solving this "irreversibility problem": altering the definition of death so as to rely on circulatory irreversibility, rather than cardiac; defining death strictly on the basis of brain death (either whole-brain or more pragmatically some higher brain criteria); or redefining death in traditional terms and simultaneously legalizing some limited instances of medical killing to procure viable hearts. The first two strategies are the most ethically justifiable and practical. (shrink)

Traditionally, people were recognized as being dead using cardio-respiratory criteria: individuals who had permanently stopped breathing and whose heart had permanently stopped beating were dead. Technological developments in the middle of the twentieth century and the advent of the intensive care unit made it possible to sustain cardio-respiratory and other functions in patients with severe brain injury who previously would have lost such functions permanently shortly after sustaining a brain injury. What could and should physicians caring for such patients (...) do? Significant advances in human organ transplantation also played direct and indirect roles in discussions regarding the care of such patients. Because successful transplantation requires that organs be removed from cadavers shortly after death to avoid organ damage due to loss of oxygen, there has been keen interest in knowing precisely when people are dead so that organs could be removed. Criteria for declaring death using neurological criteria developed, and today a whole brain definition of death is widely used and recognized by all 50 states in the United States as an acceptable way to determine death. We explore the ongoing debate over definitions of death, particularly over brain death or death determined using neurological criteria, and the relationship between definitions of death and organ transplantation. (shrink)

Looking to Scripture through the eyes of contemporary medical experience, I analyze the meaning of the criteria used for determining death, specifically in the light of Jesus’ final moments and the resurrection of the Shunammite’s son in 2 Kings, chapter 4. I argue that four theses are consistent with, and informed by, these passages that can help guide Christian belief and decision-making about how death is determined in the clinical context: (1) death is neither permanent (...) nor irreversible; (2) something like the “brain dead” state is, at best, a confounding state that requires one to “pace and pray” or let go; (3) that the case for determining death by neurologic criteria depends on the “working togetherness” of the body's parts for the sake of impacting its environment; and (4) that the practice of neurologically-based death determination is a response to the problem of disaggregation of the human form into its organ systems that modern critical care medicine makes possible. I end with advice about how Christians might approach the debates over the law and practice even if they cannot come to a consensus. (shrink)

The determination of death by neurological criteria—“brain death”—has long been legally established as death in all U.S. jurisdictions. Moreover, the consequences of determining brain death have been clear. Except for organ donation and in a few rare and narrow cases, clinicians withdraw physiological support shortly after determining brain death. Until recently, there has been almost zero action in U.S. legislatures, courts, or agencies either to eliminate or to change the legal status of brain (...) death. Despite ongoing academic debates, the law concerning brain death has remained stable for decades. However, since the Jahi McMath case in 2013, this legal certainty has been increasingly challenged. Over the past five years, more families have been emboldened to translate their concerns into legal claims challenging traditional brain death rules. While novel, these claims are not frivolous. Therefore, it is important to understand them so that we can address them most effectively. (shrink)

In 1968, the Harvard criteria equated irreversible coma and apnea with human death and later, the Uniform Determination of Death Act was enacted permitting organ procurement from heart-beating donors. Since then, clinical studies have defined a spectrum of states of impaired consciousness in human beings: coma, akinetic mutism, minimally conscious state, vegetative state and brain death. In this article, we argue against the validity of the Harvard criteria for equating brain death with human (...) class='Hi'>death. Brain death does not disrupt somatic integrative unity and coordinated biological functioning of a living organism. Neurological criteria of human death fail to determine the precise moment of an organism’s death when death is established by circulatory criterion in other states of impaired consciousness for organ procurement with non-heart-beating donation protocols. The criterion of circulatory arrest 75 s to 5 min is too short for irreversible cessation of whole brain functions and respiration controlled by the brain stem. Brain -based criteria for determining death with a beating heart exclude relevant anthropologic, psychosocial, cultural, and religious aspects of death and dying in society. Clinical guidelines for determining brain death are not consistently validated by the presence of irreversible brain stem ischemic injury or necrosis on autopsy; therefore, they do not completely exclude reversible loss of integrated neurological functions in donors. The questionable reliability and varying compliance with these guidelines among institutions amplify the risk of determining reversible states of impaired consciousness as irreversible brain death. The scientific uncertainty of defining and determining states of impaired consciousness including brain death have been neither disclosed to the general public nor broadly debated by the medical community or by legal and religious scholars. Heart-beating or non-heart-beating organ procurement from patients with impaired consciousness is de facto a concealed practice of physician-assisted death, and therefore, violates both criminal law and the central tenet of medicine not to do harm to patients. Society must decide if physician-assisted death is permissible and desirable to resolve the conflict about procuring organs from patients with impaired consciousness within the context of the perceived need to enhance the supply of transplantable organs. (shrink)

The 1981 Uniform Determination of Death Act (UDDA) established the validity of both cardio-respiratory and neurological criteria of death. However, many religious traditions including most forms of Haredi Judaism (ultra-orthodox) and many varieties of Buddhism strongly disagree with death by neurological criteria (DNC). Only one state in the U.S., New Jersey, allows for both religious exemptions to DNC and provides continuation of health insurance coverage when an exception is invoked in its 1991 Declaration (...) of Death Act (NJDDA). There is yet no quantitative or qualitative data on the frequencies of religious exemptions in New Jersey. This study gathered information about the frequency of religious exemptions and policy in New Jersey that was created out of respect for religious beliefs. Literature and internet searches on topics related to religious objections to DNC were conducted. Fifty-three chaplains and heads of bioethics committees in New Jersey hospitals were contacted by phone or email requesting a research interview. Respondents answered a set of questions about religious exemptions to DNC at the hospital where they worked that explored the frequency of such religious exemptions in the past five years, the religious tradition indicated, and whether any request for a religious exemption had been denied. This study was approved by the Northeastern University Institutional Review Board (IRB #: 16–03-15). Eighteen chaplains and bioethics committee members participated in a full research interview. Of these, five reported instances of religious exemptions to DNC occurring at the hospital at which they worked for a total of approximately 30–36 known exemptions in the past five years. Families sought religious exemptions because of faith in an Orthodox Judaism tradition and nonreligious reasons. No failed attempts to obtain an exemption were reported. Religious exemptions to DNC in New Jersey do occur, although very infrequently. Prior to this study, there was no information on their frequency. Considering religious exemptions do occur, there is a need for national or state policies that addresses both religious objections to DNC and hospital resources. More information is needed to better understand the impact of granting religious exemptions before new policy can be established. (shrink)

Many accounts of the historical development of neurological criteria for determination of death insufficiently distinguish between two strands of interpretation advanced by advocates of a "whole-brain" criterion. One strand focuses on the brain as the organ of integration. Another provides a far more complex and nuanced account, both of death and of a policy on the determination of death. Current criticisms of the whole-brain criterion are effective in refuting the first interpretation, but not the second, (...) which is advanced in the 2008 President's Council report on the determination of death. In this essay, I seek to further develop this second strand of interpretation. I argue that policy on determination of death aligns moral, biological, and ontological death concepts. Morally, death marks the stage when respect is no longer owed. Biologically, death concerns integrated functioning of an organism as a whole. But the biological concepts are underdetermined. The moral concerns lead to selection of strong individuality concepts rather than weak ones. They also push criteria to the "far side" of the dying process. There is a countervailing consideration associated with optimizing the number of available organs, and this pushes to the "near side" of death. Policy is governed by a conviction that it is possible to align these moral and biological death concepts, but this conviction simply lays out an agenda. There is also a prescription—integral to the dead donor rule—that lexically prioritizes the deontic concerns and that seeks to balance the countervailing tendencies by using science-based refinements to make the line between life and death more precise. After showing how these concerns have been effectively aligned in the current policy, I present a modified variant of a "division" scenario and show how an "inverse decapitation problem" leads to a conclusive refutation of the nonbrain account of death. (shrink)

Brain death, or the determination of death by neurological criteria, has been described as a legal fiction. Legal fictions are devices by which the law treats two analogous things (in this case, biological death and brain death) in the same way so that the law developed for one can also cover the other. Some scholars argue that brain death should be understood as a fiction for two reasons: the way brain death is (...) determined does not actually satisfy legal criteria requiring the permanent cessation of all brain function, and brain death is not consistent with the biological conception of death as involving the irreversible cessation of the functioning of an organism as a whole. Critics counter that the idea that brain death is a legal fiction is deceptive and undemocratic. I will argue that diagnosing brain death as a hidden legal fiction is a helpful way to understand its historical development and current status. For the legal‐fictions approach to be ethically justifiable, however, the fact that brain death is a legal fiction not aligned with the standard biological conception of death must be acknowledged and made transparent. (shrink)

The recently published World Brain Death Project aims in alleviating inconsistencies in clinical guidelines and practice in the determination of death by neurologic criteria. However, critics have taken issue with a number of epistemic and metaphysical assertions that critics argue are either false, ad hoc, or confused. In this commentary, I discuss the nature of a definition of death; the plausibility of neurologic criteria as a sensible social, medical, and legal policy; and within a Rawlsian (...) liberal framework, reasons for personal choice or accommodation among neurologic and circulatory definitions. Declaration of human death cannot rest on contested metaphysics or unmeasurable standards, instead it should be regarded as a plausible and widely accepted social construct that conforms to best available and pragmatic medical science and practice. The definition(s) and criteria should be transparent, publicly justifiable, and potentially allow for the accommodation of reasonable choice. This is an approach that situates the definition of death as a political matter. The approach anticipates that no conceptualization of death can claim universal validity, since this is a question that cannot be settled solely on biologic or scientific grounds, rather it is a matter of normative preference, socially constructed and historically contingent. (shrink)

The determination of death by neurological criteria remains controversial scientifically, culturally, and legally, worldwide. In the United Kingdom, although the determination of death by neurological criteria is not legally codified, the Code of Practice of the Academy of Medical Royal Colleges is customarily used for neurological death determination and treatment withdrawal. Unlike some states in the US, however, there are no provisions under the law requiring accommodation of and respect for residents' religious (...) rights and commitments when secular conceptions of death based on medical codes and practices conflict with a traditional concept well-grounded in religious and cultural values and practices. In this article, we analyse the medical, ethical, and legal issues that were generated by the recent judgement of the High Court of England and Wales in Re: A [2015] EWHC 443. Mechanical ventilation was withdrawn in this case despite parental religious objection to a determination of death based on the code of practice. We outline contemporary evidence that has refuted the reliability of tests of brainstem function to ascertain the two conjunctive clinical criteria for the determination of death that are stipulated in the code of practice: irreversible loss of capacity for consciousness and somatic integration of bodily biological functions. We argue that: the tests of brainstem function were not properly undertaken in this case; the two conjunctive clinical criteria set forth in the code of practice cannot be reliably confirmed by these tests in any event; and absent authentication of the clinical criteria of death, the code of practice wrongly invokes a secular definition of death based on the loss of personhood. Consequently, the moral obligation of a pluralistic society to honor and respect diverse religious convictions to the greatest extent possible is being violated. Re A is contrasted with the US case of Jahi McMath in which the court accommodated parental religious objection to the determination of neurological death codified in the Uniform Determination of Death Act. We conclude that the legal system in the United Kingdom should not favour a secular definition of death over a definition of death that is respectful of religious values about the inviolability and sanctity of life. We recommend the legal recognition of religious accommodation in death determination to facilitate cultural sensitivity and compassionate care to patients and families in a pluralistic society. (shrink)

Since its inception in 1968, the concept of whole-brain death has been contentious, and four decades on, controversy concerning the validity and coherence of whole-brain death continues unabated. Although whole-brain death is legally recognized and medically entrenched in the United States and elsewhere, there is reasonable disagreement among physicians, philosophers, and the public concerning whether brain death is really equivalent to death as it has been traditionally understood. A handful of states have acknowledged this plurality (...) of viewpoints and enacted “conscience clauses” that require “reasonable accommodation” of religious and moral objections to the determination of death by neurological criteria. This paper argues for the universal adoption of “reasonable accommodation” policies using the New Jersey statute as a model, in light of both the ongoing controversy and the recent case of Jahi McMath, a child whose family raised religious objections to a declaration of brain death. Public policies that accommodate reasonable, divergent viewpoints concerning death provide a practical and compassionate way to resolve those conflicts that are the most urgent, painful, and difficult to reconcile. (shrink)

The concept of brain death was recently described as being “at once well settled and persistently unresolved.” Every day, in the United States and around the world, physicians diagnose patients as brain dead, and then proceed to transplant organs from these patients into others in need. Yet as well settled as this practice has become, brain death continues to be the focus of controversy, with two journals in bioethics dedicating major sections to the topic within the last two (...) years.By way of background, the Uniform Determination of Death Act states that “[a]n individual who has sustained either: irreversible cessation of circulatory and respiratory functions, or 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.” In other words, death can be defined by either cardiorespiratory or neurological criteria, with “brain death” representing the loss of all brain function. This standard, or closely related variants, has become the accepted approach throughout the United States and in many parts of the world. (shrink)

The determination of death by neurological criteria remains controversial scientifically, culturally, and legally, worldwide. In the United Kingdom, although the determination of death by neurological criteria is not legally codified, the Code of Practice of the Academy of Medical Royal Colleges is customarily used for neurological death determination and treatment withdrawal. Unlike some states in the US, however, there are no provisions under the law requiring accommodation of and respect for residents' religious (...) rights and commitments when secular conceptions of death based on medical codes and practices conflict with a traditional concept well-grounded in religious and cultural values and practices. In this article, we analyse the medical, ethical, and legal issues that were generated by the recent judgement of the High Court of England and Wales in Re: A [2015] EWHC 443. Mechanical ventilation was withdrawn in this case despite parental religious objection to a determination of death based on the code of practice. We outline contemporary evidence that has refuted the reliability of tests of brainstem function to ascertain the two conjunctive clinical criteria for the determination of death that are stipulated in the code of practice: irreversible loss of capacity for consciousness and somatic integration of bodily biological functions. We argue that: the tests of brainstem function were not properly undertaken in this case; the two conjunctive clinical criteria set forth in the code of practice cannot be reliably confirmed by these tests in any event; and absent authentication of the clinical criteria of death, the code of practice wrongly invokes a secular definition of death based on the loss of personhood. Consequently, the moral obligation of a pluralistic society to honor and respect diverse religious convictions to the greatest extent possible is being violated. Re A is contrasted with the US case of Jahi McMath in which the court accommodated parental religious objection to the determination of neurological death codified in the Uniform Determination of Death Act. We conclude that the legal system in the United Kingdom should not favour a secular definition of death over a definition of death that is respectful of religious values about the inviolability and sanctity of life. We recommend the legal recognition of religious accommodation in death determination to facilitate cultural sensitivity and compassionate care to patients and families in a pluralistic society. (shrink)

Although established in the law and current practice, the determination of death according to neurological criteria continues to be controversial. Some scholars have advocated return to the traditional circulatory and respiratory criteria for determining death because individuals diagnosed as ‘brain dead’ display an extensive range of integrated biological functioning with the aid of mechanical ventilation. Others have attempted to refute this stance by appealing to the analogy between decapitation and brain death. Since a decapitated (...) animal is obviously dead, and ‘brain death’ represents physiological decapitation, brain dead individuals must be dead. In this article we refute this ‘decapitation gambit.’ We argue that decapitated animals are not necessarily dead, and that, moreover, the analogy between decapitation and the clinical syndrome of brain death is flawed. (shrink)

Organ donation after a circulatory determination of death is possible in selected patients where consent is given to support donation and the patient has been legally declared dead by two doctors. The National Health Act (61 of 2003) and regulations provide strict controls for the certification of death and the donation of organs and tissues after death. Although the National Health Act expressly recognises that brain death is death, it does not prescribe the medical standards (...) of testing for the determination of brain death (neurological determination of death), circulatory death (circulatory determination of death) or for determination of death based on somatic criteria. However, in all cases of organ donation, including after circulatory death, the National Health Act mandates that two doctors certify the death, with one doctor possessing more than 5 years of experience. Additionally, both doctors must be independent from the transplant team. The standard for such determination, as for brain death, aligns with accepted medical standards. The Critical Care Society of Southern Africa has published South African (SA) Guidelines on Death Determination that outline rigorous standards for death determination in hospital settings by either a neurological or circulatory method. Legislation and the Health Professions Council of SA’s (HPCSA) professional guidance direct clinicians on obtaining informed consent for donation either from the patient or in cases of incapacity from their surrogate decision maker. Collectively, the legislation, regulations and professional guidelines in SA provide a robust ethical framework that supports organ donation after circulatory death. (shrink)

Philosophers have simplified brain death issues by drawing two distinctions--that between dead persons and dead bodies or organisms, and that between the concept of definition of death and the criteria for determining when and that death has occurred. The result has been protracted debates as to whether the death of patients is the death of persons or the death of organisms, and whether physicians should use cardio-respiratory criteria, whole brain criteria, or (...) higher brain criteria. Advocates of the death of persons prefer higher brain criteria; advocates of the death of organisms prefer cardiovascular criteria; but both will compromise, for different reasons, on the whole brain criteria that most legislators have come to accept. Advocates of person -death regard whole brain criteria as unnecessarily demanding and woefully wasteful of transplantable organs and nursing care. Nonetheless, they accept current whole-brain based legislation as a first neurological step away from traditional cardio-respiratory. (shrink)