By Seema Shah
It astonishes me how many people do not realize the controversial nature of “brain death” and the fact that it is not the same as death. There is a substantial body of literature showing that brain death is not the equivalent of death. The President’s Council on Bioethics issued a white paper in 2008 acknowledging the deficiencies with our current approaches to determining death. The literature on the topic is fascinating—some brain dead individuals have gestated babies successfully to viability and gone through puberty. Many brain dead individuals can heal wounds, regulate their body temperatures, and persist on ventilators for many years. (If you are unfamiliar with this literature and want to read further, see the citations provided below.)
Frank Miller and I have argued that best the way to think about the status quo is that brain death is a status legal fiction, much like the legal construct that a corporation is a person. A corporation is similar enough to a person that it is convenient to treat corporations as persons under the law, rather than writing an entirely new body of law meant to apply to corporations alone. We have argued that brain death is similar to death—Frank Miller and Bob Truog express this by saying that a person who is brain dead is “as good as dead.” For this reason, we can ethically and legally treat the two states in the same way for the purposes of determining death and allowing vital organ transplantation.
There are many open and interesting questions about brain death that I will be exploring on this blog for the next few weeks. Michael Nair-Collins has a recent article in the Kennedy Institute of Ethics Journal that argues that the current approach to determining death in the U.S. is paternalistic and, presumably, unjustified. He cites as evidence the kinds of information that are shared with people deciding whether to become organ donors. But is this true, or is there evidence that the public is able to distinguish between brain death and death? Kenneth Kasper, Frank Miller, and I are investigating this at the moment, and we are finding some surprising answers in the literature.
Another issue is whether the legal fiction of brain death should extend to research. What kinds of research would be acceptable to perform on brain dead individuals? Is it the same as what we would permit with research on cadavers, or is it different in some way?
Finally, given that legal fictions are meant to be a temporary solution (the “scaffolding” of the law, in Lon Fuller’s terms), what research needs to be done to move towards greater transparency in vital organ donation?
Citations for further reading:
- Shewmon DA. The brain and somatic integration: insights into the standard rationale for equating “brain death” with death. J Med Philos 2001; 26:468.
- Shewmon DA. Chronic “brain death”: meta-analysis and conceptual consequences. Neurology 1998:51.
- Farragher RA, Laffey JG, Maternal Brain Death and Somatic Support, Neurocritical Care 3:99-106 (2005).
- President’s Council on Bioethics, Controversies in the Determination of Death (2008).
- S.K. Shah, F.G. Miller, Can We Handle the Truth? Legal fictions in the determination of death, 36 Am. J. Law & Med. 540 (December 2010).