[Downloaded free from http://www.ajmonline.org.in on Wednesday, August 26, 2020, IP: 10.232.74.

22]

  Review Article

Brain Stem Death: Critics and Ethics

Puneet Dhar
Department of Surgical Gastroenterology, AIIMS, Rishikesh, Uttarakhand, India

Abstract
Evolution of brain stem death certification has been linked to potential for organ donation. This has caused considerable legal and ethical
controversies which are outlined. These include differences in the mode of death, challenge to irreversibilty of death; absence of laws to
deal with withdrawal of support unless for organ donation, and clinical documentation of cardiac rather than brain stem death. Other legal,
economic and ethical issues are discussed.

Keywords: Brain stem death, ethics of transplant, legal issues

The evolution of brain stem death and the process of vital organs, it hinges solely on the concept of irreversibility!
certification, especially in India, have been covered in earlier Many reasons to criticize this is possible, for example,
sections in this issue. However, even as the steeplechase autoresuscitation or Lazarus phenomenon (could be delayed
appeared to be nearing its end, the obstacle race continues to action of catecholamines or increase in venous return after
raise legal and ethical controversies! stopping ventilation) even though there is no documented
long‑term survival subsequently. Likewise, extracorporeal
In the Indian law, death is differently defined in two acts: the
membrane oxygenation and other techniques can now restore
registration of birth and death act (permanent disappearance
cardiorespiratory function to preserve organs; hence, is it
of all evidence of life) and Transplantation of Human Organs
possible to be sure that neural function or even consciousness
and Tissues Act (THOTA). Which includes brain stem
cannot be restored! Similarly, it is possible not to resuscitate
and cardiopulmonary components. This ambiguity can be
after an arrest, one with a potential, however short-lived,
temporally separate, for example, a brain stem dead patient can
to resuscitate! Cardiac donation has also happened after
take from hours to days for cardiorespiratory arrest! Hence, a
circulatory death  –  further challenging the irreversibility![2]
single legal definition is imperative.[1]
All these scenarios are extremely rare and highly improbable,
As physicians, it seems to us irrefutably logical that anything but the fact that it is, at all possible, is what fuels controversy!
so clearly capable as cadaveric organ donation, of saving a
Historically, the brain stem death declaration process in India
life, can have any controversy! However, some ethicists and
as well as elsewhere has been inextricably linked to the onset
critics feel that the definition itself can be conveniently used
and propagation of organ transplantation. It is unfortunate
to have parameters which are most compatible with invariable
that it continues to be so associated, even though, in a it ought
death rather than actual death itself! They feel that death
to have first been a component of futility of care. Possibly
occurs only when there is complete destruction of all three
because of a complex interplay of social, cultural and ethnic
body functions – neurologic, respiratory, and cardiovascular.
reasons, there has been a reluctance to take this head‑on by
Ironically, it is the physicians who feel that the decision should
both the medical and legal communities as well as by the
be a social rather than a scientific one! Since the alternate
government and nongovernmental organizations. Having a
narrative of death declaration by cessation of only one of
the organs involves inevitable eventual stoppage of other
Address for correspondence: Prof. Puneet Dhar,
AIIMS, Rishikesh, Uttarakhand, India.
Submitted: 28-Apr-2020 Accepted: 29-Apr-2020
E‑mail: dharpuneet@gmail.com
Published: 18-Aug-2020

Access this article online This is an open access journal, and articles are distributed under the terms of the Creative
Quick Response Code: Commons Attribution‑NonCommercial‑ShareAlike 4.0 License, which allows others to
Website: remix, tweak, and build upon the work non‑commercially, as long as appropriate credit
www.ajmonline.org.in is given and the new creations are licensed under the identical terms.
For reprints contact: reprints@medknow.com

DOI:
10.4103/AMJM.AMJM_30_20 How to cite this article: Dhar P. Brain stem death: Critics and ethics. Amrita
J Med 2020;16:77-81.

© 2020 Amrita Journal of Medicine | Published by Wolters Kluwer ‑ Medknow 77

[Downloaded free from http://www.ajmonline.org.in on Wednesday, August 26, 2020, IP: 10.232.74.22]
Dhar: Brain stem death ethics
dichotomous (national vs. private) and watertight health‑care
delivery system frequently with mutual distrust, also doesn’t
help! In addition, the lay public gets the feeling that the organs
are made available in the public hospitals (the “have‑nots!”),
while the recipients tend to be the “haves” since much of the
complex transplant work gets done in  (expensive) private
hospitals. Clearly, this perceived social inequity cannot easily
be addressed legally till more government hospitals start doing
transplants (especially nonrenal).
A related legal point has been stressed in a recent review by
Shroff and Navin and its editorial by Nagral.[3,4] They highlight
the absence of a legal framework to withdraw life support even
though brain stem death has been declared, communicated to
relatives, and organs sought but either refused or not used for
any other reason. The continuity of care, in case the organs, is
requested but refused and gives rise to an awkward situation
where the family could potentially be suspicious of the
motives of brain stem death declaration to be only to procure
the organs!! There is frequently a lack of time, maturity,
and ownership of who should explain the legal reasons for
this continuity of care. The distrust tends to deepen with an
increase in the cost of continuation of expensive intensive care
unit (ICU) care. As a corollary, the ICU physicians and other
caregivers become reluctant to broach the topic of seeking
organs unless it is reasonably sure that the request would be
accepted!  Irresponsible and sensationalistic news channels
and viral unauthenticated social media reports of miraculous
recovery after certification of death further compound this
problem. A strong point is made for seeking a clarification in
the law and its rules to include withdrawal of care irrespective
of demand for organs once brain stem death has occurred.
This will have an important fringe benefit in freeing up scarce
intensive care beds in futile settings. Till that happens, one
way to avoid this distrust is to train transplant coordinators
to sensitively but clearly communicate the legal loophole up
front while explaining brain stem death but before seeking
the organs. An offshoot from this problem is a lack of legal
clarity on who takes the final call on consent. This assumes
importance when there is a difference of opinion between
family members. For instance, the wife who should be the
closest relative and may be aware of the antemortem desire
to donate has no legal recourse if a patrilineal cousin appears
and refuses the consent to donate! What if the closest kin is
not available geographically?! These contentious issues could
of course be erased if we opt in for the “opt out” doctrine of
presumed consent unless specifically expressed a desire NOT
to donate. However, before we blindly go that route, we need
to make sure that other murkier issues of misuse and abuse
do not counter all the supposed advantages! Any modification
of THOTA could help in suggesting or establishing a chain
of command for the final consent to donate. Another peculiar
situation could exist if the consent is withdrawn after the first
set of testing – no legal recourse exists under THOTA. Should
the second set of tests be done – if yes to what use? If not, we
have legally not confirmed brain stem death. Hence, we are
78
again forced to wait for circulatory death to be documented.
This uncertainty increases the confusion over documenting
and use of brain stem death (legally should be second set of
tests) instead of circulatory (“natural!”) death in all paperwork.
The third legal lacuna exists in the domain of donation after
cardiac death (DCD). It is simply not possible in our country
in a controlled setting as we have no law for withdrawal of
care in a terminal setting. This has not been addressed even
in the later modification of THOTA after two decades. Even
when this would be possible, there would be debatable issues
like how long to wait, where (near relatives or in the theater),
any interventions that would be permitted to reduce warm
ischemia, etc., which will need sorting out. Hence, until it
comes into THOTA, only uncontrolled DCD is possible. Since
this would largely only yield inferior organs some of which
are unusable, it would tend to feed its own unpopularity and
discourage it altogether!
Another legal issue is the global lack of consensus of defining
brain stem death – should it be clinical or neurological?! And
timelines for declaration – would one be enough if due diligence
is observed to account for all the confounders?! Especially if
organ donation is not being sought – would make the whole
process simpler and easier to implement. But would it really
be justified to have two sets of laws for defining brain stem
death, depending on end use?! Many intensivists suggest that
the law should be the same irrespective of donation – will avoid
sticky issues like withdrawal of consent before the second test
and makes withdrawal of supports more credible. As it is, there
could be problems in doing brain stem certification, especially
the mandatory apnea test, for example, if hypothermic,
desaturation, or if the blood pressure is unstable. Alternate
methods for establishing brain stem death become necessary to
document cerebral blood flow such as computed tomography,
transcranial Doppler or cerebral angiography, or neurological
confirmation of isoelectric electroencephalogram over 30 min
after ruling out sedatives and hypothermia.[5]
A dichotomy may appear to exist in the declaration process
itself – only one physician is needed to document circulatory
death, while four are needed for brain stem death declaration and
that too on two separate occasions. Clearly, this is an attempt to
increase transparency and confirm permanency/irreversibility
and prevent any misuse or subjectivity in borderline setting.
Yet, it does tend to complicate the declaration itself – this can
be perceived as an undue prolongation of the bereavement
process at a time when the family is attempting to hasten the
terminal rites of the deceased as much as possible!One unusual
situation could be exploited as a legal loophole – in a homicidal
attack resulting in brain stem death, there could be a claim that
death was caused actually by disconnection of life supports!
The final legal controversy exists in the interpretation of role of
authorization committees for living unrelated transplants and
the very low refusal rate in what could be a very suspicious
segment. While it would appear irrelevant in the context of
brain stem death, the systems are inextricably linked since the
Amrita Journal of Medicine  ¦  Volume 16  ¦  Issue 2  ¦  April-June 2020
[Downloaded free from http://www.ajmonline.org.in on Wednesday, August 26, 2020, IP: 10.232.74.22]
Dhar: Brain stem death ethics
resultant exponential increase in unrelated transplants tends to
reduce the impetus for cadaveric organ retrieval!
Ethical controversies are even more complex as the lines
tend to get blurred between the myriad shades of right and
“wrong!”[6] Legally, a given definition of death tends to be
sharply demarcated as a specific point in the timeline of
life where it can presumably be “tested” to have become
irreversible or permanent. However, in practical usage,
death is actually a continuing process and ethically has a
wide spectrum of definitions! For instance, the Uniform
determination of Death Act and THOTA include irreversible
cessation of all functions of the entire brain. However, none
of the testing methods test all functions! For instance, nothing
tests hypothalamic or pituitary function which could be
functioning at time of death declaration! Hence, theoretically,
even in brain stem death declaration, there could be a variety of
definitions (and hence room for a doubt!). Of these, the three
main groups include circulatory or somatic (from irreversible
loss of circulation, with or without cardiac activity), whole
brain definitions (all central nervous system functions lost, but
single cells could function and spinal reflexes could exist and
hypothalamic functions are all debatable!), and higher brain
definitions.[7] Which of these should we use as the definitive
definition?! Despite the scope for this confusion, in Asia, it
appears ethically and morally more justified to rely on any
of these against the Damocles Sword of organ trafficking in
living donors.
Organ donation after brain stem death rests on principles of
altruism and utilitarianism. Neuroscientists have shown the
psychological benefits of altruism. Yet, all acts of donation,
sharing, helping, or sacrifice tend to involve some sort of
self‑interest like satisfaction, recognition among peers,
expectation of reciprocity, or even the notion of karma – getting
postmortem benefits!
The primary ethical controversy encountered in brain stem
declaration is that of consent for donation. Logically, it would
appear to be a no brainer that consent is mandatory. However,
actual antemortem documentation of consent and equally
importantly making friends and family aware of the same is
rather rare. In these circumstances, it becomes the decision of
the next of kin available at that time. Sometimes, an ethical
dilemma may appear, for example, even with explicit consent
of the donor, there could be refusal of consent by the friends
or relatives present at the time of brain stem death declaration.
This could be due to the lack of awareness of the will or because
of refusal or failure to take responsibility for this decision or
fear of refusal by “closer” but geographically absent relatives.
It could also be a result of their own biases like a belief that
it would result in a less aggressive care or resuscitation or
perception of unfairness of organ allocation (e.g., why should
it go to an alcoholic!). One way out is better documentation
of the explicit consent  –  as donor cards, entries in driving
license, or as advance directives in official registries. This also
has an indirect benefit of popularizing the act of donation to
Amrita Journal of Medicine  ¦  Volume 16  ¦  Issue 2  ¦  April-June 2020
other contacts. One of the problems with explicit consent is
a perceived ethnic inequity, for example, South Asians in the
UK and the Afro‑Caribbean community in the USA are seen
to donate less but receive a higher proportion of the donated
organs.
The doctrine of implied consent on the contrary presumes that
unless a wish to the contrary was made, most people would
agree to donate! This is akin to a chairman in a meeting saying
that a motion would go through as accepted unless someone in
the meeting objects. In many European countries led by this
“Spanish” model, declaration of brain death and organ retrieval
has increased exponentially. There appears to be an ethical bias
toward this concept as many take a high moral ground that
anyone would “want” to donate for the good of society. Some
even feel that it is immoral for a person to decline consent! In
nondemocratic setups, this could swing ethics the other way
to be akin to a totalitarian and mandatory conscription of the
organs! The USA and other countries have consistently rejected
this model on the grounds that it should not be implemented in
the absence of priming and education of society. It is interesting
that all efforts are made to push for an “Opt in” during life,   but
once a potential donor is identified, if we justify the consent
as presumed, it may be unfair to those who were genuinely
confused and had not actually made up their mind, as opposed
to those who may have intended to donate but never got round
to expressing that wish!
Another ethical concern pertains to the frequent violation of
the separation of donor and recipient information in the hype
to glorify and popularize donation. This frequently recurring
breach must not be allowed to happen in the long run and is
best controlled early.
Ethical problems of conflict of interest can also occur because
of local legalities, for example, if a declaration is sought in
a nonretrieval hospital, there could be an attempt to move
a potential donor either for “better neurological care” and
convert it into an in‑house donor, bypassing the state authority
to allocate it elsewhere. It is also known that instead of
moving donor, a potential matching recipient can be moved
across states within the same chain of hospitals, as there is
nothing preventing anyone being listed in a separate center in
a different state! Such abuse can be avoided by liberalizing
licensed retrieval centers, national registries for recipients,
and also use of only medical rather than geographical criteria
for organ allocation.
The issue of a prisoner on death row being used for an elective
death and retrieval would appear to be incontrovertibly
inhuman! However, proponents would argue that it gives the
convicted criminal a chance to repent and compensate by
doing something worthwhile in society. A survey by the news
organization MicroSoft National Broadcasting Company
(MSNBC) showed 80% acceptance to death row donors and
75% of potential lung recipients voted to accept such organs.[8]
Despite this, there are clearly issues to be understood here
including likely coercion, the ethics of capital punishment
79
[Downloaded free from http://www.ajmonline.org.in on Wednesday, August 26, 2020, IP: 10.232.74.22]
Dhar: Brain stem death ethics
itself, possibility of poorer quality organs and increased warm
ischemia, and violation of the dead donor “rule”  –  of not
causing death to donate!
Financial issues can also cloud brain stem declaration and
organ retrieval. Even though it is less murky than the prospect
for organ trade and transplant tourism in live unrelated
donation, there could be subtle variations, especially if there
is a lack of transparency of the allocation process. The fact
that many celebrities, politicians, and other “haves” tend to get
organs (sometimes multiple!) easily, while others succumb to
waiting lists, suggests that even in the developed countries, the
process is far from being unblemished! In the less developed
countries, there could be an implied pressure to donate for a
family financially impoverished by the prolonged illness itself,
as there is a tendency to “write off” some of the expenses,
especially if these are compensated in the market economy of
more potential for profit from the recipients! Sometimes, even
the funeral expenses are paid off. There is a clear window of
opportunity for an outright sale as well if prospective recipients
are not isolated or blinded from the donation and allocation
process. Even medical establishments, if unethical, can bump
up investigation results to make a patient appear sicker for
a consideration to favor an urgent allotment to a particular
recipient!
Nonfinancial incentives on the contrary are less
controversial yet could violate the principle that the
sickest  (one needing the most) recipient gets the organ.
Israel incorporated nonmedical priority points for
allocation, for example, for someone registered as a
donor – with higher priority of those registered longer if
a family member actually donated and if the impending
recipient himself was a live donor. [9,10] It does have an
attractive justification that it fulfills an ethical principal
of reciprocal altruism. In addition to countering the notion
that religion (Judaism here) forbids donation, it could be
an effective incentive for potential (fence sitter) donors to
register. Another suggestion has been to have a government
insurance scheme for pledged organ donors.
The issue of transplant tourism and organ trafficking is much
more relevant in live donor transplant, yet it has managed
to cast its shadow in the brain stem death declared category
too. There is a potential for richer patients to move to areas
with better donation rates, and corrupt practice is possible in
countries with wide income disparities to bridge this chasm!
The way forward clearly entails delinking organ donation from
brain stem death certification and education on brain stem stem
death and futility of subsequent care. Importantly, uniform
declaration of death should be included in the registration
of births and deaths act. This can support medical personnel
to declare brain stem death and legally validate withdrawal
of supports, even if there is no consent for organ donation.
It is hoped that the whole country supports withdrawal of
cardiorespiratory support even if brain death doesn’t proceed
to organ donation as has been done by a recent Government of
80
Kerala order. This would lead to a relatively less painful end
of life experience for the bereaved family.[11]
Another frightening scenario is the donation from a person
dying of physician‑assisted suicide and euthanasia which is
legally permissible in some West European countries and
Canada. There appears to be a gradual shift from retrieval
after death to actually “conduct” the death in an operation
theater! After informed consent, body cavities are surgically
opened, and then, the lethal injection is given. A  pure
scientist might argue that logically this would minimize
ischemic damage and yield the best organs in a volunteer
already committed to die. However, to others, it would
eerily recapitulate the specter of Robin Cook’s “Coma” – no
longer being in the realm of science fiction or as has been
called a “death by donation!!”[12] Acceptance by an organ
hungry populace already suggests an ethical preference to
bypass the (hitherto inviolable) dead donor rule if individuals
volunteer to die for organ donation.[13,14] Soon, those with
stigma of permanent disabilities and eventually even those
who cannot decided for themselves may feel the pressure
to become useful! Physician‑assisted homicide may appear
to be a strong term but forebodes a tightrope walk between
physician intent and patient awareness! Just like the palpable
unrelenting pressure on an emergency live donor as the
patient deteriorates; we could expect a similar guilt and
subtle coercion on the marginalized and less useful members
of society. As they devalue themselves, offering their organs
might seem a ray of hope and we could tilt toward a not so
Brave New World!!
Financial support and sponsorship
Nil.
Conflicts of interest
There are no conflicts of interest.
References
1. John S. When Death Comes Calling. India Legal; 2016. Available from:
http://www.indialegallive.com/cover‑story‑articles/il‑feature‑news/
defining‑death‑legally‑14973. [Last accessed on 2019 Jul 31].
2. Wijdicks  EF. Critics and brain death. In: Brain Death. 3rd  ed., Ch. 5.
Oxford University Press; 2017. p. 111-32.
3. Nagral S. Ways of dying. Indian J Med Ethics. 2018;3:NS:266-9.
4. Shroff S, Navin S. Brain death and circulatory death: Need for a uniform
definition of death in India. Indian J Med Ethics 2018;3:321‑3.
5. Kumar L. Brain death and care of the organ donor. J Anaesthesiol Clin
Pharmacol 2016;32:146‑52.
6. Dalal  AR. Philosophy of organ donation: Review of ethical facets.
World J Transplant 2015;5:44‑51.
7. Veatch  RM. Would a reasonable person now accept the 1968 harvard
brain death report? A short history of brain death. Hastings Cent Rep
2018;48 Suppl 4:S6‑9.
8. Lin  SS, Rich  L, Pal  JD, Sade  RM. Prisoners on death row should be
accepted as organ donors. Ann Thorac Surg 2012;93:1773‑9.
9. Lavee J, Ashkenazi T, Gurman G, Steinberg D. A new law for allocation
of donor organs in Israel. Lancet 2010;375:1131‑3.
10. Lavee J. Ethical amendments to the israeli organ transplant law. Am J
Transplant 2013;13:1614.
11. Available from: https://www.mohanfoundation.org/images/BRAIN-
STEM-DEATH‑CERTIFICATION‑GUIDELINES‑KERALA.pdf.
Amrita Journal of Medicine  ¦  Volume 16  ¦  Issue 2  ¦  April-June 2020
[Downloaded free from http://www.ajmonline.org.in on Wednesday, August 26, 2020, IP: 10.232.74.22]

Dhar: Brain stem death ethics

[Last accessed on 2020 Feb 08].
12. Ely  EW. Death by organ donation: Euthanizing patients for their
organs gains frightening traction. Intensive Care Med 2019;45:1309‑11.
13. Ball IM, Sibbald R, Truog RD. Voluntary euthanasia – Implications for
organ donation. N Engl J Med 2018;379:909‑11.
14. Lewis R. Voluntary Euthanasia: Are we Ready to Harvest Organs While
Donors are Still Alive? Genetic Literacy Project; 2018. Available from:
https://geneticliteracyproject.org/2018/09/18/voluntary-euthanasia‑are
‑we‑ready‑to‑harvest‑organs‑from‑patients-who‑are‑still‑alive/.  [Last
accessed on 2019 Oct 12].

Amrita Journal of Medicine  ¦  Volume 16  ¦  Issue 2  ¦  April-June 2020 81