4 | CO NTRO VERSIES IN THE D ETERMINATIO N O F D EATH

States. In 1968, a physician-led committee at Harvard Medical

School, in an influential paper entitled “A D efinition of Irreversible
Coma,” concluded that patients who meet the diagnostic criteria for
a certain type of severe brain injury may be pronounced dead be-
fore the heart stops beating.3 In the 1970s, various state legislatures
and courts acted to turn this “medical consensus” into a legally rec-
ognized standard for determining death.* Not all states took such
action; those that did formulated the new brain-based physiological
standard and its relation to the more traditional cardiopulmonary
standard in often significantly different ways. In 1981, the Presi-
dent’s Commission for the Study of Ethical Problems in Medicine
and Biomedical and Behavioral Research (hereinafter “the Presi-
dent’s Commission”) published D efining D eath: M edical, L egal and
E thical Issues in the D etermination of D eath. In this landmark report, the
President’s Commission proposed a uniform statute for determin-
ing death by the application of two alternative physiological
standards: (1) “irreversible cessation of circulatory and respiratory
functions” and (2) “irreversible cessation of all functions of the en-
tire brain, including the brainstem.” 4

The text accompanying the proposed uniform statute clarified the

relationship between the two alternative standards. It said that in
almost all cases of human death the traditional standard (i.e., irre-
versible cessation of circulatory and respiratory functions) should
be used, as it always had been. O nly in rare cases in which mechani-
cal ventilation is used to support the breathing of a severely brain-
injured individual— one who meets criteria similar to those laid out

* Whether it truly was a consensus is a matter of historical debate. Certainly there

were some prominent physicians and others who did not share the Harvard
committee’s confidence that those who were properly diagnosed with “brain
death” (or “irreversible coma,” as the 1968 report called it) were dead as human
beings. Some discussion of this issue can be found in M. S. Pernick, “Back from
the G rave: Recurring Controversies over D efining and D iagnosing D eath in His-
tory,” in D eath: Beyond W hole Brain C riteria, ed. R. Zaner (The Netherlands: K luwer
Academic Publishers, 1988),17-74; and M. S. Pernick, “Brain D eath in a Cultural
Context: The Reconstruction of D eath, 1967-1981,” in T he D efinition of D eath:
C ontemporary C ontroversies, ed. S. J. Y oungner, R. M. Arnold, and R. Schapiro (Bal-
timore: The Johns Hopkins University Press, 1999): 3-33.
 CHAPTER O NE | 5

by the Harvard committee— should a brain-based standard be em-

ployed.

According to the President’s Commission, these latter cases require

a non-traditional standard because circulatory and respiratory func-
tions cannot and should not be considered signs of continued life if
they are supported technologically. The Commission proposed a useful
metaphor for the problem: recognizing death is like looking into a
room to see if someone is there. When the window that one usually
peers through is obscured— when the curtain is drawn— one should
make every effort to find another window. In the case at hand, the
“curtain is drawn” by the use of the ventilator to support breathing
and (indirectly) circulation. According to the President’s Commis-
sion, the neurological standard of irreversible loss of whole brain
function— the coma dépassé or “brain death” diagnosis— is a second
window on the same, biologically real phenomenon of human
death. Such a standard is needed only when the traditional standard
cannot be used— only when the curtain is drawn on the first win-
dow do we need to look through the second.

The President’s Commission’s model statute was endorsed by the

American Medical Association (AMA), the American Bar Associa-
tion (ABA), and the National Conference of Commissioners on
Uniform State Laws (NCCUSL). The NCCUSL published this stat-
ute under the name “Uniform D etermination of D eath Act”
(UD D A) and worked to get it passed in all of the states and juris-
dictions of the United States. The key section of the Act, Section
O ne, reads as follows:

§1. [D etermination of D eath]. An individual who has sus-

tained either (1) irreversible cessation of circulatory and
respiratory functions, or (2) irreversible cessation of all
functions of the entire brain, including the brain stem, is
dead. A determination of death must be made in accor-
dance with accepted medical standards.5

Through the NCCUSL’s efforts, a significant increase in uniformity

has been achieved. Not all U.S. jurisdictions have adopted the exact
language of the UD D A, but all of them, without exception, have
6 | CO NTRO VERSIES IN THE D ETERMINATIO N O F D EATH

some form of legal recognition for a brain-based standard of death.*

This recognition allows physicians to declare an individual who is
dependent on a ventilator dead before the cessation of heartbeat
and respiration if results indicating the coma dépassé or “brain death”
condition are obtained upon neurological examination.

The consensus position for using a neurological standard to deter-

mine death in the United States may be stated in this way: “Whole
brain death”— but no other sort of injury that leaves circulation and
respiration intact— is an appropriate standard for determining the
death of a human being.

D. The Contemporary Controversy

Today, however, the consensus position is subject to a number of

persistent concerns and novel criticisms. There remains consider-
able public confusion, both about the meaning of the term “brain
dead” and about its relation to the death of a human being. There is
persistent dissent by some clinicians, philosophers, and other criti-
cal observers who have never been convinced that “brain death” is,
indeed, the death of the human being. There are, as well, pressures
against insisting that declaring death, or at least “organ donation
eligibility,” requires the irreversible loss of function in the whole
brain. And, perhaps most important, there are critics who have pub-
lished evidence of ongoing integrated bodily activities in some
persons meeting the criteria of “whole brain death” and who have
claimed that this evidence invalidates the rationale for today’s con-
sensus position. These challenges invite— indeed, they necessitate—
a re-examination of the neurological standard enshrined in law and
medical practice. In this report, the President’s Council on Bioethics
offers such a re-examination.

* Forty-five U.S. jurisdictions have adopted a determination of death act that is

either identical to, or shares basic elements with, the UD D A. For details, see H.
R. Beresford, “Legal Aspects of Brain D eath,” in Brain D eath, ed. E. F. Wijdicks
(Philadelphia: Lippincott Williams & Wilkins, 2001). A few states have no deter-
mination of death statute, but rely instead on precedent-setting court cases, some
of which cite the UD D A in their decisions.