Whole Brain Death Analysis

The Whole-Brain Concept of Death Remains Optimum Public Policy
James L. Bernat

he definition of death is one of the oldest and most enduring problems in biophilosophy and bioethics. Serious controversies over formally defining death began with the invention of the positive-pressure mechanical ventilator in the 1950s. For the first time, physicians could maintain ventilation and, hence, circulation on patients who had sustained what had been previously lethal brain damage. Prior to the development of mechanical ventilators, brain injuries severe enough to induce apnea quickly progressed to cardiac arrest from hypoxemia. Before the 1950s, the loss of spontaneous breathing and heartbeat (“vital functions”) were perfect predictors of death because
He claims further that his cases of “chronic brain death” show that the concept of brain death is inherently counterintuitive, for how could a dead body gestate infants or grow?57 Another critic, Robert Taylor, has called the brain death concept a “legal fiction” that is accepted by society in a manner analogous to the concept of legal blindness. Taylor explains that legal blindness is a concept invented by society to permit people who are functionally blind from severe visual impairment to receive the same social benefits as those enjoyed by people who are totally blind. We all know that most people who are declared legally blind are not truly blind. But we employ a legal fiction and use the term “blindness” in a biologically incorrect way for its socially beneficial purpose. Taylor argues that, by analogy, we know that people we declare “brain dead” are not truly dead, but we consider them dead for the socially beneficial goal of organ procurement.58 As a longstanding proponent of whole-brain death, I acknowledge that the whole-brain formulation, although coherent, is imperfect, and that my attempts to defend it have not adequately addressed all valid criticisms. But my inadequacies must be viewed within the larger context of the relationship of biology to public policy. Our attempts to conceptualize, understand, and define the complex and subtle natural concepts of life and death remain far from perfect. Perhaps we will never be able to achieve uniform definitions of life and death that everyone accepts and that no one criticizes for conceptual or practical shortcomings. In the real world of public policy on biological issues, we must frequently make compromises or approximations to achieve acceptable practices and laws. For these compromises to be tolerable, generally they should be minor and not affect outcomes. For example, in the current practice of organ donation after cardiac death (formerly known as non-heart-beating organ