Article Text
Abstract
Advances in life-saving technologies in the past few decades have challenged our traditional understandings of death. Traditionally, death was understood to occur when a person stops breathing, their heart stops beating and they are cold to the touch. Today, physicians determine death by relying on a diagnosis of ‘total brain failure’ or by waiting a short while after circulation stops. Evidence has emerged, however, that the conceptual bases for these approaches to determining death are fundamentally flawed and depart substantially from the established biological conception of death. We argue that the current approach to determining death consists of two different types of unacknowledged legal fictions. These legal fictions were developed for practices that are largely ethically legitimate but need to be reconciled with the law. The considerable debate over the determination of death in the medical and scientific literature has not informed the public that vital organs are being procured from still-living donors and it seems unlikely that this information can remain hidden for long. Given the instability of the status quo and the difficulty of making the substantial legal changes required by complete transparency, we argue for a second-best policy solution: acknowledging the legal fictions involved in determining death to move in the direction of greater transparency. This may someday result in more substantial legal change to directly confront the challenges raised by life-sustaining and life-preserving technologies without the need for fictions.
- Legal aspects
- donation/procurement of organs/tissues
- definition/determination of death
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Introduction
In the second half of the 20th century, technological advances in intensive care medicine and organ transplantation led to the perceived need to rethink the criteria for determining death. Two US bioethics commissions played key roles in developing new approaches to determining death. In 1981, the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioural Research endorsed “whole brain death” as consistent with a sound biological conception of death, defining death as the irreversible cessation of an organism's integrated functioning. The Commission also clearly stated that the determination of death must ‘not constitute a mere legal fiction’.1 In 2008, the President's Council on Bioethics explicitly rejected the reasoning of the earlier Commission, but similarly maintained that the diagnosis of death be firmly based on scientific criteria and not “legal fictions' or ‘social agreements’ whose aim is less an accurate determination of death than a ready supply of organs”.2 Despite these declarations, we argue that current practices regarding the determination of death do not conform to a scientifically coherent understanding of death and that vital organs are being procured from still-living donors.3 These practices also conflict with the dead donor rule, which specifies that vital organs can be procured only from donors who have been determined to be dead according to established legal standards and laws governing homicide.4 Nevertheless, we maintain that our current practices can be justified ethically and legally. Understanding the determination of death as involving ‘legal fictions’ can bring greater transparency to the practices of organ procurement and transplantation while reconciling them with legal requirements.
Determining death
In 1968, an ad hoc committee at the Harvard Medical School developed new criteria for the diagnosis of ‘irreversible coma’ as a way to determine death.5 This committee paved the way for a 1981 President's Commission to endorse their criteria as ‘whole brain death,’ arguing that the brain is the central integrator of the body, that death occurs when the body stops functioning as an ‘integrated whole,’ and that death can therefore be determined when the brain ceases to function.1 The President's Commission proposed model language for determining death that became the basis for the Uniform Definition of Death Act. This act, which was subsequently adopted by state legislatures,6 provides that death occurs with the (1) ‘irreversible cessation of circulatory and respiratory functions’, or (2) ‘irreversible cessation of all functions of the entire brain, including the brain stem…’7 Over the past few decades, the determination of ‘whole brain death’ has been the prerequisite for procurement of vital organs from heart-beating donors.
Over time, a growing waiting list of patients in need of organs led institutions conducting organ transplantation to expand beyond ‘brain-dead’ donors. They developed protocols for procuring organs from patients following planned decisions to withdraw life support. Because these patients do not meet neurological criteria for determining death, they are declared dead on the traditional basis of cessation of circulation. In this context, the question of how long to wait after circulation stops is critical, since the wait must be long enough to ensure the donor is dead but not so long as to jeopardise the viability of the transplantable organs. Most institutions implementing protocols of controlled donation after circulatory determination of death (DCDD) settled on a waiting period following asystole of between 2 and 5 min, with some institutions waiting for even shorter periods of time.8
Why ‘whole brain death’ and ‘total brain failure’ are not death
The determination of death based on neurological criteria has always been somewhat controversial and has become more so in recent years. Contrary to the President's Commission's arguments, robust evidence has emerged that the integrative functioning of the organism as a whole does not depend on the brain. There are many examples of patients who are correctly diagnosed with ‘whole brain death’ but continue to perform a variety of integrative functions with the aid of mechanical ventilation and nursing care. These functions include circulating blood, maintaining respiration and body temperature, regulating salt and water homoeostasis, digesting food, healing wounds, fighting infections, mounting a stress response to surgical incisions, maturing and growing proportionally (in children) and even gestating fetuses successfully.9 In one dramatic report, a patient who clearly met all criteria for ‘whole brain death’ maintained integrative functioning for over 14 years.10
In 2008, the President's Council on Bioethics published a white paper acknowledging that the established rationale for the determination of death based on ‘whole brain death’ is flawed and must be either discarded or reformulated. Accepting the criticisms that many patients diagnosed with whole brain death can still perform integrative bodily functions, they proposed an alternative way of understanding death, which they characterised as ‘total brain failure’.
Although the term ‘total brain failure’ is itself a misnomer (many patients who meet these criteria do retain some brain functions, including temperature regulation and hormonal control over salt and fluid balance), it is an improvement over ‘brain death,’ as it does not presuppose that brain failure constitutes death. According to the Council, what makes individuals with ‘total brain failure’ dead is that they can no longer carry out the ‘fundamental vital work of a living organism’. More specifically, they claimed that death of an individual requires the loss of (1) ‘receptivity to stimuli and signals from the surrounding environment’, (2) ‘the ability to act upon the world to obtain… what it needs’ and (3) the ‘basic felt need that drives the organism to act’.2
Unfortunately, the Council's new rationale also fails in light of the evidence regarding the capabilities of individuals with ‘total brain failure.’ These individuals can perform vital work by being receptive to and acting upon their surrounding environment, as reflected, for example, in their ability to maintain body temperature, heal wounds and fight infections.11 Although individuals with ‘total brain failure’ have permanently lost consciousness and thus the ability to interact with others, they have not lost abilities that are essential to life. In short, they are not dead.
Why DCDD is insufficient to determine death
Death is an irreversible condition. Controlled DCDD protocols typically require an interval of between 2 and 5 min after asystole before death is declared, with one centre reporting successful heart transplants after waiting only 75 s.12 Are waiting periods in this range long enough to determine the irreversible loss of circulatory function? Under the most straightforward understanding of ‘irreversibility,’ asystole for 5 min or less is clearly insufficient to determine death, since many case reports and common clinical experience show that individuals have been successfully resuscitated after being asystolic for this long and longer.13 By reducing the limit of how long to wait to declare death after the last heartbeat, the current practice of DCDD generally fails to establish death with a reasonable degree of certainty. The fact that hearts have been successfully recovered and transplanted under DCDD protocols also calls into question the determination that the donor's loss of circulatory function was irreversible.7 14
Instead, the logic of DCDD protocols depends upon the view that when there is no intention of resuscitating the DCDD donor, the loss of circulatory function can be considered irreversible as soon as it is clear that the heart is unable to start again on its own (a phenomenon called autoresuscitation). Although the data are scant, it appears that autoresuscitation is a very rare phenomenon after even a minute or two of asystole.15
While organ donation in these circumstances may be ethical, redefining ‘irreversibility’ in terms of whether one chooses to reverse rather than whether it is possible to reverse seems to be a conceptual sleight-of-hand invoked solely to legitimate organ donation in this context. ‘Irreversibility’ normally means something that it is not possible to undo, as opposed to something that would be possible to undo but for the fact that another option was chosen.16 This conception illogically makes the irreversibility of death a matter of decision rather than reflecting a physiological condition.17 As long as attempting resuscitation can restore circulation, the cessation of circulatory functioning is not irreversible. In sum, the current practice of controlled DCDD confuses people who are imminently dying with those who are known to be dead.
Legal fictions
There are clear fallacies in the current approaches to determining death. Although prominent bioethics bodies have argued to the contrary, current approaches to determining death are based on legal fictions, which treat individuals as if they were dead even though they remain alive or are not known to be dead.18
Legal fictions are heuristic devices that use false statements to serve a particular legal purpose. They typically treat two clearly different things as if they were the same, so that the law governing one also governs the other. For example, a classic legal fiction is that corporations are persons under the eyes of the law. No one would confuse a corporation with a living person, but the law generally treats the two as the same in order to establish what law to apply to corporations. Although most common legal fictions are fully transparent, some legal fictions are unacknowledged.19 There are many different types of legal fictions, two of which are relevant here: status fictions and anticipatory fictions (see table 1).
‘Whole brain death’ and ‘total brain failure’ as status fictions
Like the fiction that a corporation is a person, ‘whole brain death’ uses analogical reasoning to apply the same law to two distinct, but related, categories. This type of legal fiction can be thought of as a ‘status’ fiction—a corporation is assigned the same status as persons under the law so that the body of law developed for people can be applied to corporations. This approach helps answer many legal questions, including in what state or court a corporation can be sued and, more controversially, how a corporation can contribute money to a political campaign 20 (table 1).
Similarly, ‘whole brain death’ is not the same as death, but they are treated as if they were the same under the law. People who are ‘brain dead’ maintain a host of life functions that a corpse cannot. This condition of profound brain damage is like death because both states are marked by the permanent loss of consciousness and the ability to interact with others. Given that most people would see no point in maintaining life support for patients in this condition, they are ‘as good as dead,’ making it reasonable to treat them as if they were dead so that their organs can be used to save the lives of others. It therefore makes sense to treat a diagnosis of ‘whole brain death’ the same as death for the purpose of determining when organ donation is legally permissible. Using analogical reasoning to extend the legal determination of death to those diagnosed with ‘whole brain death’ thereby invokes a status legal fiction.
Unlike the fiction that a corporation is a person in the eyes of the law, however, the fiction of determining death based on ‘whole brain death’ or ‘total brain failure’ is not transparent. It is an unacknowledged legal fiction that is used without full recognition of its falsity.17
DCDD is an anticipatory fiction
Determining death based on the irreversible cessation of circulation involves a different kind of legal fiction—an anticipatory fiction. Anticipatory fictions allow us to treat something that will imminently occur as if it has already happened, when waiting for it to occur will cause harm. An example of this type of legal fiction is the doctrine of “anticipatory breach” in contract law. Before one party can sue for breach of contract, courts usually require the other party to fail to fulfil their end of the bargain. There may be times when it is clear that one party is not going to perform their contractual obligations, however, and waiting to sue until the deadline specified by the contract will result in harm. In such cases, courts may allow claims of anticipatory breach.21
DCDD operates in much the same way (table 1). Vital organ donors under DCDD protocols are imminently dying, as a result of the withdrawal of life support, but are not known to be dead by virtue of irreversible cessation of circulatory function at the time that organs are procured. The determination of death in these cases treats the soon-to-occur state of death as if it has already occurred. The practice of DCDD requires the use of an anticipatory fiction because waiting longer to achieve certainty about irreversibility could result in substantial harm, including failing to respect the wishes of potential donors or neglecting to save many lives for lack of organs of sufficient quality. The legal fiction in DCDD is also unacknowledged.
Acknowledging the unacknowledged legal fictions
Although current practices of organ transplantation depend on the dead donor rule, evidence has accumulated that the current approach to the determination of death is conceptually unsound; vital organ donors are not dead or not known to be dead at the time that organs are being procured. Because the President's Council and commentators in the medical and bioethics literature have extensively discussed the deficiencies in the determination of death, this evidence is unlikely to remain out of the public eye for long. It would therefore be naïve to expect that these fictions can be left unacknowledged indefinitely.
As the truth about the determination of death and organ donation becomes more apparent, physicians could face criminal liability for what has become standard practice. The Cleveland Clinic was investigated in 1997 for considering a protocol to recover organs for transplantation more effectively by waiting a few minutes after asystole and using heparin and phentolamine to preserve the organs (drugs that some argue could hasten death).22 Lawsuits challenging our current approaches to determining death may succeed in the face of the evidence about brain death and DCDD. For these reasons, it seems prudent to consider the alternatives to simply muddling through and hoping that the status quo can be maintained indefinitely.
The clearest option is to abandon the dead donor rule. We have argued that donors who are “brain dead” are not dead and donors under DCDD protocols are not known to be dead. However, individuals who are ‘brain dead’ or imminently dying are neither harmed nor wronged by organ donation when based on valid decisions to withdraw life support and donate their organs.3 Although there are strong ethical arguments to justify abandoning the dead donor rule, this option poses serious practical difficulties. Reconstructing the rationale for vital organ donation without legal fictions would require extensive reform of state laws governing the determination of death and homicide. Not only would this be a lengthy undertaking, but it might be impossible to accomplish in the current political climate. This option would therefore require foregoing many opportunities for organ donation permanently, or at least until extensive legal reform is completed. The tremendous loss of life that would result from abandoning our current approaches to organ donation would be a considerable and tragic cost and would exacerbate the scarcity of life-saving organs we already face. There were more than 21 000 transplants from donors classified as deceased in 2009, yet over 100 000 people remain on the national waiting list.23
Another alternative is to adopt the ‘higher brain’ standard for death, under which death occurs when an individual permanently loses consciousness. The higher brain standard has been rejected by the President's Commission and the President's Council, however, and faces a number of practical and legal difficulties. First, the higher brain standard is typically understood to explain when the death of a person occurs, but the legal definitions of death refer to the death of a human individual. Defining personhood is a value-laden and morally fraught task about which reasonable people may disagree.24 Second, physicians may not have the diagnostic tools to reliably determine when consciousness is permanently lost.25 Finally, turning to a higher brain standard of death cannot rescue DCDD protocols, as they do not rely on brain-based criteria for determining death.
For lack of any better options, an interim solution is to move towards greater transparency by acknowledging these legal fictions. This would harmonise our current practices of organ donation with the law and allow the public to gradually become aware of the realities in how we determine death. While organ donors declared dead according to ‘whole brain death’ or circulatory criteria remain alive or are not known to be dead, they will not be harmed or wronged by having their organs removed with their (or their proxy's) consent.3 Therefore, acknowledging the legal fictions that underlie organ transplantation can provide us with a way to more honestly continue an ethically justifiable and life-saving practice. This temporary use of legal fictions eventually may allow the medical profession and the public to face the trade-offs and uncertainties involved in how death is determined without the need for legal fictions.
Conclusion
Current approaches to determining death in the practice of organ transplantation rely upon unacknowledged legal fictions. ‘Whole brain death’ relies on a status fiction, while DCDD uses an anticipatory fiction. Given the challenges to current criteria for determining death that have been published in the literature, maintaining the status quo without acknowledging its reliance upon legal fictions will probably require disingenuous, if not duplicitous, public explanations. We have argued that simply acknowledging the use of legal fictions in the determination of death is a positive step towards facing the reality of vital organ transplantation. By moving in the direction of greater transparency, we may someday be able to confront the challenges raised by life-sustaining and life-preserving technologies without the need for fictions.
Acknowledgments
This article is based on ideas developed in a larger work, SK Shah, FG Miller, “Can We Handle the Truth? Legal Fictions in the Determination of Death”, American Journal of Law and Medicine 36:540-585 (2010).
References
Footnotes
The opinions expressed are the view of the authors. They do not represent any position or policy of the US National Institutes of Health, the Public Health Service, or the Department of Health and Human Services.
Funding This research was supported by the Intramural Research Program of the NIH, out of the Warren G Magnussen Clinical Center. However, the sponsor had no role in the development of manuscript or decision to submit it for publication. Two of the authors are US government employees who must comply with the NIH Public Access Policy and the author or NIH will deposit, or have deposited, in NIH's PubMed Central archive, an electronic version of the final, peer-reviewed manuscript upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication.
Competing interests None.
Provenance and peer review Not commissioned; externally peer reviewed.
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