The Definition of Death, Contemporary Controversies, edited by Stuart J. Youngner, Robert, M. Arnold, and Renie Schapiro. Johns Hopkins Univ. Press, 346 pp., $ 54
In just thirty years, bioethics has grown from a group of ruminating philosophers and theologians into one of the country’s most fiercely secularized and influential intellectual forces. Bioethicists sit on presidential advisory commissions, teach in the most prestigious medical schools, lead hospital ethics committees, design treatment protocols, testify as expert witnesses, and engage in a myriad of other activities that are transforming American medicine.
Practitioners of bioethics are ever about the task of forging professional consensus on the major medical issues of the day. Toward that end, they like nothing better than a good intellectual squabble as they carefully sort through arcane philosophical points and policy minutiae. Indeed, they are contemporary equivalents of those proverbial medieval philosophers who argued bitterly over how many angels could dance on the head of a pin but who, despite their differences, shared an overarching worldview. Bioethics has similarly evolved into a relatively cohesive and robust movement — perhaps even an ideology.
The major stream in bioethics explicitly rejects many of the core values of traditional Western medical ethics. The Hippocratic oath, for example, is dismissed as “paternalistic” and is now rarely administered to new doctors. The sanctity of human life is denigrated as “irrational.” Religious values are tolerated and even embraced by some bioethicists, but are excluded from policy making as “divisive in a pluralistic society.” As for objective concepts of right and wrong, bioethics is the epitome of relativism.
While constructing their “new medicine,” bioethicists make much of the commitment to personal autonomy that led to the movement’s most positive contribution: the right to refuse unwanted medical treatment. But beneath their paeans to “choice” lie the foundational philosophical beliefs of the ideology: the utilitarian moral calculus and a relativistic “quality of life” approach to determining moral worth that, taken in tandern, create an explicit hierarchy of human life.
In bioethics ideology, what matters is not the “human community” but the “moral community” of “persons.” Of course, the term “person” is generally supposed to be synonymous with “human being.” But bioethicists use the term to distinguish “beings” of significant moral worth (which, for a minority, includes animals) from mere humans, a classification that they view as strictly biological. The status of personhood is earned by such “relevant characteristics” as self-awareness over time and cognitive capacity. Accordingly, newborn infants and patients in a coma or with severe brain damage or dementia are not persons and are thus of diminished moral status. Many bioethicists believe that such “non-persons” can be treated in ways that would be immoral if done to persons — including denying them wanted medical treatment, killing them, experimenting upon them, and taking their organs.
It is in this context that readers should view the appearance of the recently published volume, The Definition of Death. Edited and written by some of the most notable bioethicists in the country, the twenty essays in the book form a dialogue that, true to its title, debates whether and how to obtain a new legal definition of death. This is no empty intellectual exercise. By broadening and subjectivizing death, most of the authors hope to redefine as already dead several classes of living human beings, with the goals of increasing organ procurement and increasing doctors’ unilateral power to terminate wanted but expensive medical treatment.
Under current law, there are two sets of criteria that doctors may use to determine when a human being has died: irreversible cessation of circulatory and respiratory functions (“heart death”) and irreversible destruction of neurological functions (“brain death”). Brain death occurs after every heart death, as the neural cells are deprived of oxygen. But brain death sometimes occurs before heart death, when medical technology artificially maintains circulation and respiration after a catastrophic brain injury. Without this medical intervention the loss of brain function would lead to an immediate cessation of breathing and swift cardiac arrest. But, through modern medical machinery, the lungs can be kept breathing and the blood circulating, keeping organs vital and better suited for transplantation. Indeed, organ procurement was a primary reason for investigating whether brain death actually existed as an objective, biological reality.
Brain death has been relatively uncontroversial for twenty years and is recognized by law in all fifty states. But now, the concept is under increasing attack. Ironically the criticisms of brain death arise from two conflicting and paradoxical perspectives. One view, held primarily by right-to-life activists, is based on a strong belief in the sanctity of human life: Since the hearts of brain-dead people beat, other vital organs function, and wombs occasionally gestate, people who have been declared dead using neurological criteria are actually alive. The other less publicized — but far more dangerous criticism — rejects brain death as being ill defined and too narrowly drawn, thereby unduly limiting the supply of organs while people die waiting for transplants. It is this line that is presented in The Definition of Death.
Only one essay in the book vigorously supports the existence of brain death. Written by James Bernat, a neurology professor at Dartmouth University, the chapter makes the commonsense argument that “death is fundamentally a biological event” that “separates the process of dying from the process of bodily disintegration.” Bernat defends brain death from criticisms that a non-functioning brain may have clusters of living neurons and may produce a hormone that prevents diabetes, asserting that these activities do not involve any critical functions of the brain. He contends that the primary problem with brain death isn’t the condition but its proper diagnosis, noting that too many doctors fail to adhere “to quite specific protocols for determining [neurological] death.”
Bernat’s is a minority opinion. Most of the authors who write in The Definition of Death attack brain death in order to expand the categories of people who could be declared legally dead. Indeed, many of the authors explicitly reject death as an objective biological event and instead redefine it as a subjective social construct. The primary targets of an expanded definition of death are those who have been diagnosed as persistently unconscious — non-persons, in bioethics ideology — who possess organs ripe for the harvest. So Baruch A. Brody, the Leon Jaworski professor of biomedical ethics at Baylor College of Medicine, argues that death “is a process rather than an event.”:
Consider the organism that suffers damage to its brain so that it is no longer conscious and can no longer engage in responsive voluntary movement. At some later stage, it loses the capacity to breathe on its own so that its respiration must be supported artificially. At a later stage, its capacity to regulate hormonal levels stops. Somewhere during this time period, its auditory pathways stop functioning. Finally its heart stops beating. Is it really meaningful to suppose that the organism died at some specific point in the process? … Isn’t it more reasonable to say that the organism was fully alive before the chain of events began, is fully dead by the end of the chain of events, and is neither during the process?
You would never know it from his language, but Brody is speaking here of ill and dependent human beings, and he argues that life support for such people be “unilaterally withdrawn” and that “organs could be harvested at the stage in the process after the loss of cortical functioning when the organism can no longer breathe on its own.” Society can be sold successfully on this new approach to dying, Brody believes, with arguments predicated upon our obligations to be good stewards of finite resources.
Robert M. Veatch, professor of medical ethics at the Kennedy Institute of Ethics at Georgetown University, who was one of the pioneers of the modern bioethics movement, views death as a “religious/philosophical/policy” issue rather than a “question of medical science.” Creating a fixed definition of death is therefore oppressive because “the only way to have a single definition of death is for those in power to coerce others to use their preferred definition.” Thus, “there may be no alternative but to tolerate multiple views” of when death occurs, meaning that people should be allowed to decide ahead of time when they are to be deemed dead, thereby transforming death into merely another issue of “choice.”
On the surface, Veatch’s approach seems mired in a hopeless notion of autonomy, but (as with the differing approaches of many of the authors in The Definition of Death) it is in fact premised upon a utilitarian calculus: If people were allowed to decide for themselves when they are dead, “organs could be procured that otherwise would not be available, … bodies could be used for research (assuming proper consent is obtained), and life insurance would pay off.”
Norman Fost, director of the Program in Medical Ethics for the University of Wisconsin, goes further than most, questioning why we are worried about defining death at all. He writes, “My contention is that there is ample precedent in the law and good moral justification for removing organs from persons who are not legally dead.”
Fost believes that requiring people to be dead before harvesting their organs (a current ethical requirement known as the “dead-donor rule”) unduly limits the number procured. He asserts that organs should be harvested from people who are still alive. Among those Fost sees as appropriate to this procedure are ventilator-dependent patients diagnosed with permanent unconsciousness. Terminally ill but conscious people could also participate in having their organs harvested before they are actually dead “as part of their terminal care.”
Before you dismiss these arguments as unthinkable and therefore of little real concern, you should remember that when bioethicists reach consensus on a biomedical ethics issue, it often becomes embedded into law and public policy. Fifteen years ago, bioethicists generally agreed that unconscious people should be allowed to have their feeding tubes removed in order that they die. That procedure is now done to cognitively disabled people — conscious and unconscious — in every state. It was only about ten years ago that bioethicists and others began to talk seriously about legalizing physician-assisted suicide. Today, doctors legally prescribe poison to their terminally ill patients in Oregon, and serious legalization efforts are being mounted in Maine, California, and other states.
Arcane and dry, The Definition of Death will never make the bestseller lists. But the book is worth struggling through, for it illustrates the mindset and philosophical perspectives that underlie the modern bioethics movement.
In doing so, it provides an unintended service: warning us of the acute danger posed by bioethics to medical values and the essential morality of society. Indeed, for the most weak and vulnerable among us, preventing the new medicine envisioned by most of this book’s authors is, quite literally, a matter of life and death.