Why Brain Death Should Be a Legal Fiction

Seema K. Shah, JD


September 23, 2013

In This Article

Background: Development of Brain Death Criteria

The President's Council relied heavily on the groundbreaking work of D. Alan Shewmon. Shewmon documented the cases of 100 patients who were accurately determined to be brain dead and who maintained survival for more than 1 week, in some cases persisting for months, and in 1 case for 14 years.[1]

Shewmon has also demonstrated that brain-dead patients can perform a variety of functions consistent with integrative functioning, such as the removal of cellular waste, maintaining body temperature, healing of wounds, and fighting infection (including developing a febrile response).[18] In several cases, women have been able to persist and successfully gestate fetuses for months, and in another case, a child continued to grow proportionally after being determined to be brain dead.

This evidence demonstrates that if death is defined as the loss of integrative functioning of an organism as a whole, brain death is not the same as death. As the President's Council concluded, "If being alive as a biological organism requires being a whole that is more than the mere sum of its parts, then it would be difficult to deny that the body of a patient with total brain failure can still be alive, at least in some cases."[2]

Debating the Standards

After this acknowledgment, the President's Council addressed one other potential solution in the form of a personhood- or consciousness-based standard of death. This is important because one way to argue that brain death is the same as death is to say that death occurs when personhood is irreversibly lost, which occurs with the cessation of the functions of the brain.

The Council rightly rejects a personhood standard of death, explaining that: "Recent advances in technology offer no warrant for jettisoning the age-old idea that it is not as persons that we die, but rather as members of the family of living beings and as animals in particular."[2] It would require a radical renovation of our traditional conception of death to adopt a personhood standard of death, and given how heated the debate is over what constitutes personhood, we may be merely exchanging one can of worms for another.

Without any existing conceptual tools to revive the brain after brain death, the Council argued that either the practice of organ procurement is unjustified and should be stopped, or a new rationale would have to be developed for considering brain death the same as death. Concerned with the possible consequences of stopping life-saving organ transplants, the Council sought to construct a new definition of death.

First, it used the term "total brain failure" to describe the diagnosis that should be given to patients currently pronounced dead under neurologic criteria. Of course, this term is still not fully accurate, as some brain function persists in patients who have been pronounced dead under neurologic criteria. Nevertheless, the Council proposed abandoning the loss of integration as the standard for determining when death has occurred, instead proposing a new standard: that a living organism is defined as performing the "vital work" of "self-preservation, achieved through the organism's need-driven commerce with the surrounding world."[2]

Although the work of the President's Council takes a refreshingly candid view of brain death and the available evidence, its proposed resolution to the controversy surrounding brain death ultimately fails. What the Council fails to notice, is that there is another way out of the problem.

Brain death does not have to be the same as biological death to reconcile legal and ethical norms with current practices of vital organ transplantation. Instead, there is ample ethical justification to support vital organ procurement from brain-dead patients, and a legal fictions approach can help to reconcile the law with current practices of vital organ transplantation.[19]


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