Requiring family authorization for apnea testing subtracts health professionals control over death determination, a procedure that has traditionally been considered a matter of clinical expertise alone. In this commentary, we first provide evidence showing that health professionals’ (HPs) disposition to act on death determination without family’s prior consent could be much lower than that referred to by Berkowitz and Garrett (2020). We hypothesize that HPs may have reservations about their own expertise as regards death, and (...) may thus hesitate to impose their views on patients’ families. We then address the theoretical question of clinical expertise in death determination by distinguishing judgments about facts (e.g., the presence or absence of spontaneous breathing) from interpretations given of these facts (i.e., their meaning for the vital status of an individual). We argue that, while clinicians may claim some expert authority on the former, they hold no particular authority on the latter. (shrink)

The dead donor rule states that organ donors must be declared dead before any vital organs are removed. Recently, scholars and physicians have argued for the abandonment of the dead donor rule, based on the rule’s supposed connection with the concept of brain death, which they view as a conceptually unreliable definition of death. In this essay, I distinguish between methods of death determination and the question of whether or not the dead donor rule should be (...) a guiding principle of organ transplant ethics. In principle, the dead donor rule does not rely on any one definition of death, but only prohibits the taking of vital organs before a patient is declared dead. In light of this distinction, I argue that even if the dead donor rule is tied to brain death in practice, conceptual disagreement about brain death does not provide grounds for rejection of this rule. I then present evidence in support of the consistency and reliability of the diagnosis of brain death. I show that, when performed carefully and under specific clinical circumstances, the diagnosis of brain death is considered by most neurologists to be reliable. Finally, I argue that, without the dead donor rule, organ transplantation programs would become susceptible to violations of the ethical principle of respect for persons. (shrink)

Declaration of cardiorespiratory death, as defined by the Uniform Determination of Death Act, requires irreversible cessation of circulatory and respiratory function. A physician’s ability to confidently declare death is paramount because death is both a biological and social construct, and can afford a dying patient the opportunity to be an organ donor via donation after circulatory death. Inconsistencies related to cardiorespiratory death and DCD include the specific language used in the UDDA, specifically the (...) use of the word “irreversible”. Additionally, in DCD there is a large focus on the auto-resuscitative capacity of the heart, however recently some have argued that instead the focus should shift to the brain and a determination of how long it needs to be without circulation to cease functioning prior to declaring death. In this paper, I discuss inconsistencies with cardiorespiratory death as they pertain to organ donation and posit several possible solutions to mitigate these inconsistencies. (shrink)

Several authors in bioethics literature have expressed the view that a whole brain conception of death is philosophically indefensible. If they are right, what are the alternatives? Some authors have suggested that we should go back to the old cardiopulmonary criterion of death and abandon the so-called Dead Donor Rule. Others argue for a pluralist solution. For example, Robert Veatch has defended a view that competent persons should be free to decide which criterion of death should be (...) used to determine their death. However, there is very little data on people’s preferences about death determination criteria. We conducted online vignette-based survey with Latvian participants (N = 1416). The data suggest that the pluralist solution fits best with the way our study participants think about death determination—widely differing preferences concerning death determination criteria were observed. Namely, most participants choose one of the three criteria discussed in the literature: whole brain, higher brain, and cardiopulmonary. Interestingly, our data also indicate that study participants tend to prefer less restrictive criteria for determination of their own deaths than for determination of deaths of their closest relatives. Finally, the preferences observed in our sample are largely in accord with the Dead Donor Rule for organ procurement for transplantation. (shrink)

Death determination has long been a topic of intensive technoscientific and medical involvement. Due to advances in twentieth-century medical technology, the distinction between life and death has become less evident. Ambiguities appear when we start to use life-support technologies in order to save lives, bringing about “tragic artifacts” such as brain death and persistent vegetative state. In this paper we ask how this technoscientific and medical involvement shapes our understanding of death. We provide an overview (...) of medical literature that has appeared on (brain) death determination, highlighting thereby the role that technologies played in its establishment. Subsequently, we develop three philosophical interpretations of technological death determination: With Agamben and Marcuse as the installation of political power; with Don Ihde as an existential choice for the inevitable; and with Jacques Derrida as an encounter with the ineradicable mystery of death. To conclude, we argue that technological death determination reveals an intrinsic, paradoxical connection between human’s technicity and its ignorance of death. (shrink)

Organ donation after the circulatory determination of death requires the permanent cessation of circulation while organ donation after the brain determination of death requires the irreversible cessation of brain functions. The unified brain-based determination of death connects the brain and circulatory death criteria for circulatory death determination in organ donation as follows: permanent cessation of systemic circulation causes permanent cessation of brain circulation which causes permanent cessation of brain perfusion which causes (...) permanent cessation of brain function. The relevant circulation that must cease in circulatory death determination is that to the brain. Eliminating brain circulation from the donor ECMO organ perfusion circuit in thoracoabdominal NRP protocols satisfies the unified brain-based determination of death but only if the complete cessation of brain circulation can be proved. Despite its medical and physiologic rationale, the unified brain-based determination of death remains inconsistent with the Uniform Determination of Death Act. (shrink)

Background In an increasingly globalized world, legal protocols related to health care that are both effective and culturally sensitive are paramount in providing excellent quality of care as well as protection for physicians tasked with decision making. Here, we analyze the current medicolegal status of brain death diagnosis with regard to end-of-life care in Japan, China, and South Korea from the perspectives of front-line health care workers. Main body Japan has legally wrestled with the concept of brain death (...) for decades. An inability to declare brain death without consent from family coupled with cultural expectations of family involvement in medical care is mirrored in other Confucian-based cultures and may complicate care for patients from these countries when traveling or working overseas. Within Japan, China, and South Korea, medicolegal shortcomings in the diagnosis of brain death act as a great source of stress for physicians and expose them to potential public and legal scorn. Here, we detail the medicolegal status of brain death diagnosis within Japan and compare it to China and South Korea to find common ground and elucidate the impact of legal ambiguity on health care workers. Conclusion The Confucian cultural foundation of multiple Asian countries raises common issues of family involvement with diagnosis and cultural considerations that must be met. Leveraging public education systems may increase awareness of brain death issues and lead to evolving laws that clarify such end-of-life issues while protecting physicians from sociocultural backlash. (shrink)

Volume 20, Issue 6, June 2020, Page 47-49.

The distinction between the "permanent" (will not reverse) and "irreversible" (cannot reverse) cessation of functions is critical to understand the meaning of a determination of death using circulatory–respiratory tests. Physicians determining death test only for the permanent cessation of circulation and respiration because they know that irreversible cessation follows rapidly and inevitably once circulation no longer will restore itself spontaneously and will not be restored medically. Although most statutes of death stipulate irreversible cessation of circulatory and (...) respiratory functions, the accepted medical standard is their permanent cessation because permanence is a perfect surrogate indicator for irreversibility, and using it permits a more timely declaration. Therefore, patients properly declared dead in donation after circulatory death (DCD) protocols satisfy the requirements of death statutes and do not violate the dead donor rule. The acronym DCD should represent organ "donation after circulatory death" to clarify that the death standard is the permanent cessation of circulation, not heartbeat. Heart donation in DCD does not retroactively negate the donor's death determination because circulation has ceased permanently. (shrink)

This article assesses what standards of safety and certainty of diagnosis need to be met in the determination of brain death. Recent medical, legal, and philosophical developments on brain death are summarized. It is argued that epistemologically adequate standards require the finding of whole-brain death rather than destruction of the cortex. Because of the possibility of positive error in misdiagnosing death, a tutioristic approach of being on the safe side is advocated. Given uncertainties in diagnosis (...) of so-called vegetative states like the apallic syndrome, anything less than whole-brain death, especially given the present state of diagnostic capability, should not qualify as an argument for removing therapy specifically on grounds that the patient is dead. (shrink)

Despite the popularity, success, and growth of programs of organ donation after the circulatory determination of death (DCDD), a long‐standing controversy persists over whether the organ donor is truly dead at the moment physicians declare death, usually following five minutes of circulatory and respiratory arrest. Advocates of the prevailing death determination standard claim that the donor is dead when declared because of permanent cessation of respiration and circulation. Critics of this standard argue that while the (...) cessation of respiration and circulation may be permanent, it may not be irreversible at the moment death is declared because, if cardiopulmonary resuscitation were performed, it might succeed. And because irreversibility of cessation of respiration and circulation is required by both the statute and the biological concept of death, the donor must be alive. Who is correct?Making two related distinctions clarifies the cause of the disagreement over whether the DCDD donor is dead and points to a possible resolution. First, in a determination of death, there is an important distinction between the permanent and the irreversible cessation of circulation and respiration—two associated phenomena that are often confounded. Second, there is an important distinction between the medical practice standard for death determination, in which physicians certify the permanent cessation of vital functions as sufficient for death declaration, and the underlying biological concept of death that requires the irreversible cessation of vital functions because death, by definition, is an irreversible event. (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)

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)

In his article, “The Unified Brain-Based Determination of Death Conceptually Justifies Death Determination in DCDD and NRP Protocols,” James Bernat argues that Thoracoabdominal Normothermic Regiona...

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)

Ariane Lewis offers a comprehensive and expert review of ethical issues raised by brain death in the United Kingdom and how they compare to management of those issues in the United States (Lewis 20...

Volume 20, Issue 6, June 2020, Page W1-W5.

The most controversial issue in organ donation after the circulatory determination of death is whether the donor was truly dead at the moment death is declared. My colleagues and I further analyzed this issue by showing the relevance of the distinction between the “permanent” and the “irreversible” loss of circulatory functions. Permanent cessation means that circulatory function will not return because it will not be restored spontaneously and medical attempts to restore it will not be conducted. By (...) contrast, irreversible cessation means that circulatory function cannot be restored using currently available technology. In this issue of the Report, Kevin Munjal and colleagues criticize the unjustified application of the permanent‐irreversible distinction, which my colleagues and I developed for cDCDD, to their well‐designed and carefully conducted experimental protocol of uncontrolled DCDD (uDCDD) in New York City, for which our analysis was not targeted. They claimed that to determine a donor's death in uDCDD, it is unnecessary to show that permanence is a valid surrogate indicator of irreversibility because the unsuccessful attempt to resuscitate the patient comprises prima facie evidence of circulatory irreversibility. Ironically, that potent justification defending death determination in uDCDD yields limitations that are similar to those created when our permanent‐irreversible distinction is applied to death determination in cDCDD. (shrink)

The fundamental determinant of death in donation after circulatory determination of death is the cessation of brain circulation and function. We therefore propose the term donation after brain circulation determination of death [DBCDD]. In DBCDD, death is determined when the cessation of circulatory function is permanent but before it is irreversible, consistent with medical standards of death determination outside the context of organ donation. Safeguards to prevent error include that: 1] the possibility (...) of auto-resuscitation has elapsed; 2] no brain circulation may resume after the determination of death; 3] complete circulatory cessation is verified; and 4] the cessation of brain function is permanent and complete. Death should be determined by the confirmation of the cessation of systemic circulation; the use of brain death tests is invalid and unnecessary. Because this concept differs from current standards, consensus should be sought among stakeholders. The patient or surrogate should provide informed consent for organ donation by understanding the basis of the declaration of death. In cases of circulatory cessation, such as occurs in DBCDD, death can be defined as the permanent cessation of brain functions, determined by the permanent cessation of brain circulation. (shrink)

The Uniform Determination of Death Act (UDDA) provides that “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.” We show that the UDDA contains two conflicting interpretations of the phrase “cessation of functions.” By one interpretation, what matters for the determination of death is the cessation of spontaneous functions only, regardless of their generation by (...) artificial means. By the other, what matters is the cessation of both spontaneous and artificially supported functions. Because each UDDA criterion uses a different interpretation, the law is conceptually inconsistent. A single consistent interpretation would lead to the conclusion that conscious individuals whose respiratory and circulatory functions are artificially supported are actually dead, or that individuals whose brain is entirely and irreversibly destroyed may be alive. We explore solutions to mitigate the inconsistency. (shrink)

Self-determination is a central concept in the field of bioethics and the most critical decision among the myriad of decisions concerning medical care is the decision to choose to die; “self-determination of death.” The purpose of this paper is to clarify the basic positions on self-determination of death held by present Japanese people and we tentatively sorted these positions into 10 arguments. We discuss the problems and implications of these positions revealed within our present review (...) and conclude that a society needs to deny unnecessary intrusion and tolerance for different views might be a keyword in our oncoming society. (shrink)

Human life is operationally defined by the onset and cessation of organismal function. At postnatal stages of life, organismal integration critically and uniquely requires a functioning brain. In this article, a distinction is drawn between integrated and coordinated biologic activities. While communication between cells can provide a coordinated biologic response to specific signals, it does not support the integrated function that is characteristic of a living human being. Determining the loss of integrated function can be complicated by medical interventions that (...) uncouple elements of the natural biologic hierarchy underlying our intuitive understanding of death. Such medical interventions can allow living human beings who are no longer able to function in an integrated manner to be maintained in a living state. In contrast, medical intervention can also allow the cells and tissues of an individual who has died to be maintained in a living state. To distinguish between a living human being and living human cells, two criteria are proposed: either the persistence of any form of brain function or the persistence of autonomous integration of vital functions. Either of these criteria is sufficient to determine a human being is alive. (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)

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...

Efforts to revise the Uniform Determination of Death Act in order to align law with medical practice have failed. Medical practice must now align with the law. People who are not dead under the law that defines death should not be declared dead. There is no compelling reason to continue the practice of declaring legally living persons to be dead.

Despite seeming uniformity in the law, end-of-life controversies have highlighted variations among state brain death laws and their interpretation by courts. This article provides a survey of the current legal landscape regarding brain death in the United States, for the purpose of assisting professionals who seek to formulate or assess proposals for changes in current law and hospital policy. As we note, the public is increasingly wary of the role of organ transplantation in determinations of death, and (...) of the variability of brain death diagnosing criteria. We urge that any attempt to alter current state statutes or to adopt a national standard must balance the need for medical accuracy with sound ethical principles which reject the utilitarian use of human beings and are consistent with the dignity of the human person. Only in this way can public trust be rebuilt. (shrink)

It has been demonstrated that death certificates do not accurately record the actual cause of death in up to one-fourth of cases, as determined from subsequent autopsy findings. The purpose of this study was to explore the use of natural language autopsy data bases as an automated quality assurance mechanism. We translated the account of the major process leading to death, or the primary diagnosis, from all 45,564 narrative autopsy reports obtained at The Johns Hopkins Hospital between (...) May 28, 1889, and June 30, 1987, into the hierarchical system of Medical Subject Heading (MeSH) titles. We obtained a total of 125,772 MeSH title translations, 1,563 of them distinct (average 2.8 per case), ranging in frequency from 6,029 occurrences of LUNG to 1 occurrence apiece of 357 MeSH titles. The natural-language-to-MeSH translations showed expected trends over the past century: fewer infectious diseases; more cardiovascular and neoplastic disease among adults; and more respiratory diseases and congenital malformations in the pediatric age group. The greater availability of autopsy documents in electronic form should increase the value of this resource for quality assurance. (shrink)

Since the early 1980s, James Bernat’s scholarship has accompanied and shaped most scientific and policy developments on death determination. In 1981, he, Charles Culver, and Bernard Gert provided a...

Determination of time-of-death is closely related to the mortality criteria. In prehistoric times, the criteria of death were narrated through the event of the body being evacuated from the spirit or soul leaving the human body. Along with the development of science in the modern era, scientists argue the criteria of biological death and clinical death. This study projected to critically philosophically analyze the time-of-death determination related to scientific criteria. The methods used in (...) the data analysis stage were historical, hermeneutic, comparative, and critical reflection. The results showed that the scientific criteria of death were inadequate to be used in the determination of time-of-death. Time-of-death objectively existed as a separate reality outside of human beings and its existence was absolutely determined or influenced by the existence of other realities. Time-of-death ontologically meant the end of life; epistemologically signified the absence of life and had no mysterious nature; axiologically it was a symbol or metaphor of human powerlessness to judge and determine the continuity of life. (shrink)

Controlled donation after circulatory determination of death (cDCDD) is an important strategy for increasing the pool of eligible organ donors.

Abstract:Disturbing cases continue to be published of patients declared brain dead who later were found to have a few intact brain functions. We address the reasons for the mismatch between the whole-brain criterion and brain death tests, and suggest solutions. Many of the cases result from diagnostic errors in brain death determination. Others probably result from a tiny amount of residual blood flow to the brain despite intracranial circulatory arrest. Strategies to lessen the mismatch include improving brain (...) death determination training for physicians, mandating a test showing complete intracranial circulatory arrest, or revising the whole-brain criterion. (shrink)

The several articles in this special issue on organ donation after circulatory determination of death or, as it is often put, donation after cardiac death, draw lessons from different kinds of experience in order to guide efforts in the U.S. to develop or refine policies for DCD. One lesson comes from a major and, by many measures, successful experimental DCD program in Washington, D.C. in the 1990s. Another lesson comes from European countries that have adopted presumed-consent legislation, (...) a form of “opt out” that facilitates DCD as well as donation after neurological determination of death. Another lesson, from the perspective of critical care medicine in Canada, attends to the implications of viewing a dying patient, undergoing resuscitative procedures, as a potential organ donor. A final lesson sketches implications of legislation and court cases in the U.S., often involving DND, for initiating temporary organ preservation in DCD programs before consent has been obtained for organ donation. Some of these lessons are optimistic about the prospects for DCD, especially if certain steps are taken, while others are more cautious, particularly because of the costs and risks involved in DCD. (shrink)

This article defends the criterion of permanence as a valid criterion for declaring death against some well-known recent objections. We argue that it is reasonable to adopt the criterion of permanence for declaring death, given how difficult it is to know when the point of irreversibility is actually reached. We claim that this point applies in all contexts, including the donation after circulatory determination of death context. We also examine some of the potentially unpalatable ramifications, for (...) current death declaration practices, of adopting the irreversibility criterion. (shrink)

In his paper “The challenge of brain death for the sanctity of life ethic”, Peter Singer advocates two options for dealing with death criteria in a way that is compatible with efficient organ transplantation policy. He suggests that we should either redefine death as cortical death or go back to the old cardiopulmonary criterion and scrap the Dead Donor Rule. We welcome Singer’s line of argument but raise some concerns about the practicability of the two alternatives (...) advocated by him. We propose adding a third alternative that also – as the two previous alternatives – preserves and extends the possibility of organ transplantation without using anyone without their consent. Namely, we would like to draw readers’ attention to a proposal by Robert Veatch, formulated 42 years ago in his 1976 book “Death, dying, and the biological revolution” and developed further in his later publications. Veatch argues for a conscience clause for the definition of death that would permit people to pick from a reasonable range of definitional options. This autonomy-based option, we believe, is more likely to be practicable than the two options advocated by Singer. Furthermore, we present data from a study with Lithuanian participants that suggest that there is quite pronounced variation of preferences concerning death determination. (shrink)

Introduction: Congruence, understood as the agreement between the patient's preferred place of death and their actual place of death, is emerging as one of the main variables indicating the quality of end-of-life care. The aim of this research was to conduct a systematic literature review on levels and determinants of congruence in palliative patients over the period 2010–2021.Method: A systematic review of the literature in the databases of PubMed, Scopus, Web of Science, PsycINFO, CINAHL, Cuiden, the Cochrane Library, (...) CSIC Indexes, and IBECS. Information was extracted on research characteristics, congruence, and associated factors.Results: A total of 30 studies were identified, mainly of retrospective observational design. The congruence values varied substantially between the various studies, ranging from 21 to 100%. The main predictors of congruence include illness-related factors, individual factors, and environmental factors.Conclusion: This review, in comparison with previous studies, shows that treatment-related factors such as physical pain control, marital status, having a non-working relative, age, discussing preferred place of death with a healthcare professional, and caregiver's preference have been associated with higher levels of congruence. Depending on the study, other factors have been associated with either higher or lower congruence, such as the patient's diagnosis, gender, or place of residence. This information is useful for designing interventions aimed towards greater congruence at the end of life. (shrink)

This chapter reviews fundamental ethical controversy surrounding the ongoing effort to revise the Uniform Determination of Death Act in the United States. Instead of focusing on the process of the revision itself, the chapter explores the underlying ethical debate over brain death that has been ongoing for many decades and finally culminated in this revision. Three issues are focused: the requirement for consent and personal exemptions before applying brain death for the diagnosis of death; redefining (...) the areas of the brain that have ceased to function in the definition of brain death; and codifying the American Academy of Neurology as the authority to issue the standards of the diagnosis of brain death. The chapter concludes that allowing the personal choice of death determination gives a pragmatic compromise to the disputed definition and practice of diagnosing brain death. So long as all risks and imperfections of the diagnosis are accepted through the consenting process, there is nothing ethically objectionable to continuing the current practice of diagnosing brain death as a successful tool to facilitate heart-beating organ donation without violating the dead-donor rule. By contrast, precluding personal choice and imposing legal restrictions to consent and exemptions would further erode public trust. (shrink)

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)

The present chapter explores conceptual links in folk cognition between death, existence and personal identity. There is some evidence that people’s judgments about death determination differ relatively widely (Dranseika and Neiders 2018, Neiders and Dranseika 2020). If folk judgements about death differ between people, however, can those differences at least in some degree be driven by people’s beliefs about what we are, when we cease to exist and whether ceasing to exist is identical to death (...) (so-called Termination Thesis)? In order to answer these questions, we conducted two studies. The first study looks into how people think about when they begin and cease to exist as well as when they are born and die. The second study replicates the findings of the first study in a different language and country and also extends these results by also looking at what people think about ‘what we are’, and whether their position on the latter issue is associated to their thinking about when they begin and cease to exist as well as when they are born and die. The studies presented in this chapter show that, first, people seem to hold a considerable variety of different views about death, coming into existence, ceasing to exist and what we are. The studies also recovered a number of conceptual links between these concepts. These results potentially bear on a number of issues in bioethics, i.e., not only discussions on death determination, but also on abortion or embryonic research. As for death determination, the results can be taken to provide further support for the so-called pluralist proposal. Second, study results provide little evidence for the claim that people’s beliefs about death are driven by their assumptions about personal identity, i.e., their understanding of ‘what we are’. In particular, there is little evidence that differences among people on death result from differences among people on personal identity. Finally, the studies show that people don’t reason in accordance with the Termination Thesis. The link between folk ascriptions of death and cessation of existence, while present, is weak. (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)

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)