‘Brain Death’ Still Valid, Bioethics Group Says

by Aalok Mehta

March 12, 2009

Recent insights into what happens as we die do not invalidate the commonly used notion of “brain death,” affirms a recent white paper by the President’s Council on Bioethics.

“The prevailing opinion is that the current neurological standard for declaring death, grounded in a careful diagnosis of total brain failure, is biologically and philosophically defensible,” the prominent group of physicians and philosophers wrote in “Controversies in the Determination of Death,” which was released Jan. 12.

But the decision was not unanimous. At least two authors offered dissenting opinions, and other experts on the topic echo their concerns.

From a practical standpoint, brain death—or total brain failure, the council’s preferred term—is not disputed. It has been an accepted legal and medical alternative to the traditional concept of death, an irreversible end of heart and lung function, since 1981, when the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research advocated the standard. The commission justified the idea at the time by appealing to the notion of “wholeness”: Death occurs when the body and brain cease to function in an integrated way.

Since then, many have disputed the notion on both medical and philosophical grounds. Still, the members of the President’s Council weren’t planning to take up the topic again, but they reconsidered while preparing a report on organ transplantation due later this year. Many objections to brain death center on its use in transplant standards, since many viable organs can be harvested only from patients with beating hearts.

“The thing that got our attention [was] the increasing challenges to any brain death standard,” says council member Gilbert Meilaender, a professor of Christian ethics at Valparaiso University. “We spent some time on it and eventually decided the topic could be fruitfully separated out from the larger organ project and given a complete treatment.”

Of particular concern was the work of Alan Shewmon, chief of the neurology department at the Olive View-UCLA Medical Center. In 2001, he published a landmark paper showing that patients considered brain dead can show many integrated functions, including immune responses, wound healing, fetus gestation and sexual maturation. Such integrated functions are part of the definition of “wholeness.”

Based on such findings, the council has abandoned the wholeness concept in favor of an alternate justification: “vital work.” The scientists now say that patients suffering from brain death no longer do the vital work of an organism, failing to meet at least one of three essential functions: receiving stimuli from the outside world, showing the ability to act upon such stimuli and demonstrating a drive to act upon their needs.

“This was an attempt to take the challenges to the neurological standard seriously,” Meilaender says. “With this new notion, we concluded the neurologic standard could be defended, but not on the same ground. One needed a different kind of argument.”

But despite the thorough and nuanced discussion in the paper, the new recommendation remains problematic, say scientists not on the council, including Shewmon.

“What is remarkable about the white paper is that they basically reject all previous standards regarding neural death, for a quite new rationale,” Shewmon says. “They basically accepted the kind of evidence that convinced me to change my own view of brain death.

“But I don’t think it’s been entirely thought through in all its consequences and implications,” he adds. “There are a number of loose ends with the new proposal.”

In particular, Shewmon points out that the council fixates on breathing—or the attempt to breathe—as the significant vital function that can fail, but ignores patients who lose the will to eat or drink.

“[The new standard] shows that the brain is not capable of doing something necessary for life. I would say, OK, the same thing applies to people in a persistent vegetative state, who have lost the ability to eat,” says Robert Truog, a professor of medical ethics at Harvard Medical School. “Both are critical functions for living and both can be provided artificially. It seems that by their own definition they fail to differentiate between brain-dead patients and patients in a vegetative state, and they do not want to declare people like Terry Schiavo dead.”

Schiavo fell into a persistent vegetative state in 1990 after going into cardiac arrest, eventually requiring a feeding tube. The extended legal battle between her husband, who wanted to remove the tube, and her parents, who wanted to keep it, brought many of the issues discussed in this white paper into the public eye.    

Truog says the mere appearance of the white paper reflects just how difficult and controversial this topic remains, despite the façade of acceptance.

“They saw that current explanations are insufficient and felt compelled to come up with a new one,” he says. “That right there is pretty amazing. It shows that problems with brain death have not gone away.”