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It's a pleasure to be here
again, this is the second conference that I've attended in
Cuba - I was here in 2000, and was the recipient of the
generous hospitality of Cubans, and it was very nice to come
here again and experience the same.
I was originally scheduled to
speak at this ... Marcelo Sánchez
Sorondo, I guess, will be
arriving later in the conference. So I don't have any
PowerPoint presentation or anything like that, and I wish I
could give this presentation in Spanish ... but I apologize
for that.
The matter of defining death,
and its criteria for determination are being revisited by
the US Presidents Council on Bioethics. The public
attention to the case of Terri Schiavo has, no doubt, played
a significant role in putting this matter on the council's
agenda. Cases of post-mortem pregnancy, and the
extraordinary case reported by D. Alan Shewman in which a
whole-brain dead body was sustained for over twenty years,
has also recently challenged our current understanding of
death.
The Schiavo case caused many
to wonder about the biological and ethical differences
between cases of brain-death and permanent vegetative state.
While there are fair biological differences between these
conditions, cases like Schiavo raise the issue of whether
the biological differences make any ethical difference, or
any difference in terms of what it means for someone to die.
Should the definition of death and its neurological criteria
be expanded to include individuals in permanent vegetative
state, and individuals who have irreversibility lost the
possibility for consciousness and every other mental
function, and understanding that there is a continuum of
these cases of persistent vegetative state, and on the far
end, those are the ones I'm really talking about.
Where there is a high risk of clinical certainty in terms of
the lack of any potential for regaining consciousness.
I think Ted Rothstein, later in this conference, will be
presenting a paper on that.
Or should cases like Schiavo,
along with cases where whole-brain dead bodies are
artificially sustained for months or years cause us to
reexamine and reject any neurological criteria for
determining death, including the irreversible loss of all
brain function?
So in this paper what I'm
going to try to do is to examine the arguments moving in one
direction or another in the context of the current
deliberations of the President's Conference. The last
time a US Presidential body addressed the matter of defining
death was in 1981 when there was disagreement among the
states over the definition and criteria for determining
death. A person might have been considered dead in
Kansas, but alive in the neighboring state of Missouri.
Because Kansas had legally adopted neurological criteria for
determining death whereas Missouri had not. In
response to this problem, the 1981 President's Commission on
Defining Death was charged with proposing a uniform
statutory definition of death. The Commission
ultimately recommended the following - which I assume you're
familiar with - that if an individual has sustained either
irreversible cessation of circulatory and respiratory
functions or irreversible cessation of all functions of the
entire brain including the brain stem is dead.
Subsequently all states in the United States have accepted,
either judicially or legislatively, the recommendation of
the Commission - this is essentially the current law in the
United States.
The 1981 Commission had a
definite practical charge and there was some urgency in
resolving the matter. Although the current President's
Council's recommendations may have practical import, it is
not faced with the same urgency. This is worth
mentioning because the current council now has the
opportunity to address the issues more completely,
especially at the theoretical level.
The 1981 Commission's Report
has been criticized as conceptually flawed. Since the
Commission's main aim was to promote a consensus on the
acceptable criteria for determining death, it avoided - or
didn't deal adequately - with the more theoretical task of
providing a sound grounding for a particular definition of
death. Ideally, as Alan Shewman pointed out in his
presentation to the President's Council, on November 6th,
2007; "one should start with a clear conception, or
definition, of death, and then work toward an understanding
of the criteria and specific tests for determining it."
Instead, the 1981 Commission, along with some of the early
work biologists on revising the criteria for death, started
with, and ultimately proposed criteria for determining death
that it thought would be acceptable to the medical community
and public and never adequately addressed the definition of
death.
Although the 1981 Report
mentions three alternative definitions of death:
1. The irreversible loss
of organic integration
2. The irreversible loss
of consciousness
3. The departure of the
soul from the body
The Commission essentially
endorsed the first, strictly biological, definition, because they thought that it fit best with the criteria that
they proposed. However the Commission never adequately
considered the arguments for the alternative definitions, or
whether the fact that people disagree over the definition of
death should support a more pluralistic legal definition
that would allow individuals some choice over the definition
and criteria.
Indeed, although the
Commission admitted, that the matter of defining death is
primarily a philosophical matter, it went on to say that it
would not journey down arcane philosophical paths that, it
claimed, were far removed from the practical matter of
defining death. Due to the urgency of the 1981
Commission's charge, there may be some justification for its
failure to engage in philosophical issues, however there is
no reason why the current council should not journey down
the 'arcane philosophical paths'.
D. Alan Shewman has it right
when he says that the most responsible way to proceed is to
first formulate an acceptable definition, or conception, of
death; and then formulate criterion and tests for its
determination. If the Council concludes that there is
no one acceptable definition of death, then it should
forthrightly address the issue of how this disagreement
should be handled in a pluralistic society.
The 1981 President's
Commission's failure to address the definitional question
has come back to haunt the Council. Alan Shewman and
other have effectively shown that it is implausible to think
that a living human organism requires a functioning brain in
order to be organically integrated. Cases of
post-mortem pregnancy, in which whole-brain dead women are
sustained for months to allow the fetus to gestate and be
removed by Caesarian section, and cases where whole-brain
dead humans have been sustained for extended times - in one
case, over 20 years - show that human organic integration is
compatible with the loss of all brain function. As
Shewman put it, in his presentation before the President's
Council, "no biologist is going to say that these
individuals are not alive, thus we accept the 1981
Commission's definition of death as the irreversible loss of
integration of the organism as a whole, there is no reason
to think that the current whole-brain neurological criterion
determines when this occurs. We must either reject the
current neurological criterion and, I suppose, go back to
the traditional cardio-respiratory criterion - that's a
suggestion that Shewman makes, and its not the direction I
want to take it - or we revise the definition of death to
make it compatible with the criterion."
The President's Council
appears to be headed in the direction of revising the
definition of death by revising what it means for a human
organism to be integrated as a whole.
Remarks by members of the
President's Council suggest two arguments for rejecting the
claim that artificially sustained whole-brain individuals
are alive. Both arguments seem to retain the 1981
definition of death as the loss of integration of the
organism as a whole; but they appeal to different factors to
support the claim that individuals who have lost all brain
function are no longer integrated organisms, and therefore
have died.
The first argument is one
that Leon Kass, and others on the council, have mentioned.
This argument suggests a revision in what it means for a
human organism to be integrated as a whole as it interprets
organic integration as involving not only internal
coordination among the organism's subsystems, but
integration with the environment. Thus, even if
Shewman and others are correct, that a degree of internal
organic integration can persist through the loss of all
brain functions, the organism's integration with its
environment is destroyed in the case of whole-brain death.
Kass suggests that a living
organism be defined by the presence of an innate,
autonomous, drive to interact with the world. While no
member of the Commission has yet clearly spelled out what
this drive consists in, in the case of human beings, it
apparently involves the innate drive to breathe on one's
own, and to consciously interact with the world. Both
impulses appear to be necessary since Kass, and others, do
not want to count individuals in locked-in syndrome, and the
permanently vegetative, as dead. Even though
individuals in locked-in syndrome have lost their autonomous
drive to breathe due to injury in certain structures of the
brainstem, they are still alive because they retain
conscious interaction with the world. Individuals in
permanent vegetative state are also still alive since they
retain an innate drive to exchange oxygen with the
environment even though they have irreversibly lost the
capacity for conscious interaction with the world.
Individuals in permanent vegetative state can also interact
with the environment in terms of nutritional exchange,
although they require artificial support to do this.
The second argument appeals
to the idea that the brain plays a role as an executive in
the integrative functioning of the human organism, and when
this executive function is destroyed, the organic
integration of the organism is destroyed. What remains
is no longer an organic unity, but a set of
mechanically-sustained subsystems. Dr. Holbert, a
member of the Council, has voiced this argument: "It is also
essentially an argument that the 1981 President's Commission
endorsed, and therefore does not represent a revision in the
rationale for accepting the loss of all brain functions as
death."
However, I think that both of
these arguments for maintaining that artificially-sustained
whole-brain dead human individuals have lost their organic
integration are implausible. In Kass' view neither the
loss of the spontaneous, or autonomous drive to breath - and
therefore exchange oxygen with the environment; or the loss
of the ability for conscious interaction - that is
experience, with the world, is individually sufficient for a
determination of death. However, he takes a loss of
both to be jointly sufficient.
However, a main reason why
the loss of spontaneous respiration is not sufficient for
determining the death of the organism is that this
brainstem-mediated function can be compensated by artificial
support - and the exchange of oxygen to sustain the organism
can take place. Kass would not like to classify
everyone dependent, or even permanently dependent, on a
ventilator as dead. Kass also clearly rejects the idea
that individuals in permanent vegetative state are dead.
Even though these individuals may have irreversibly lost the
capacity for conscious interaction with the environment, he
does not think this is sufficient for death since they still
retain the capacity to interact biologically with the
environment in terms of oxygen and nutritional exchange.
It should be noted, however, that individuals in permanent
vegetative state require artificial nutritional support.
So it would appear to be the process of spontaneous
respiration in these individuals that Kass thinks is so
significant.
Suppose, however, that an
individual in permanent vegetative state sustained a highly
localized lesion in the brainstem that interfered with the
individual's ability to breathe without assistance.
Also suppose that this ability could be easily compensated
by putting the individual on a ventilator. The
exchange of oxygen between the organism and the environment
would continue as it continues in individuals who require
ventilator support but who are not in a permanent vegetative
state. Why, in this case, is the loss of normally
spontaneous brainstem function so significant that the human
organism no longer maintains, in Kass' words, an
'over-and-against relationship with the world'. If the
loss of this spontaneous brainstem breathing function is not
sufficient in determining death in many other patients who
require ventilator support, and if the irreversible loss of
consciousness is insufficient in determining death in
patients in permanent vegetative state; why does the
irreversible loss of consciousness suddenly become so
relevant that it puts the artificially-sustained individual
in permanent vegetative state in the class of the dead.
The organic integration between the individual in permanent
vegetative state who requires a ventilator, and one who does
not, seems to be a trivial difference. We have not
been given a reason why this difference is ontologically, or
ethically, relevant.
If there is a reason to think
that the individual in permanent vegetative state is a
living human being or whole organism, and if
dependency on a ventilator does not change the status of the
organic integration of other living human beings from dead
to alive; why should it do so in the case of individual in
permanent vegetative state who require ventilator support?
Unless we attribute the same ontological significance to the
loss of spontaneous respiration in human beings who are not
in a permanent vegetative state, as we do to those that are,
the two lack consistency and suggest it is based on our
arbitrary stipulation.
Another problem with this
view is that it is unclear why we should not consider the
ventilator simply a change in the organism's environmental
conditions. The organism continues to interact with
its environment, but its environment has now been changed to
enable it to take in oxygen in a special way - respiration
continues. Oxygen is distributed to cells and organs
throughout the body and the myriad of
biologically-coordinated functions of those cells and organs
continues. All organisms require a certain environment
in which to survive. Why isn't this case interpreted
as a case in which organic integration persists, but there
is a change in the environmental conditions to allow the
organism to continue its organic integration?
While human organisms do not
normally need to interact with a ventilator in order to
survive - some do - suppose, for example, a human organism
lost what would be its normal capacity to regulate its
temperature, and could only survive if the environmental
conditions were altered to effect the regulation of its
temperature. Outside of this controlled environment,
the organism would not survive. How is ventilator
support any different from this? Just as we would not
say that the organism was dead because it lacked the
internal drive, or capacity, to regulate its temperature;
there is no reason to think that an organism on a ventilator
support - even one in a permanent vegetative state, or one
who has lost all brain function - is dead.
It is also unclear why
spontaneous respiration is so significant such that its loss
in combination with the irreversible loss of consciousness
would constitute the loss of organic integration in the
sense of the organism's capacity to interact with the world.
As Shewman, and others, have pointed out: 'individuals who
satisfy the criteria for whole-brain death are able to take
in nourishment, grow, and maintain homeostasis - albeit
through artificial ventilation, feeding, and hydration.'
Why doesn't this count as an organisms interaction with its
environment, and therefore constitutive of the persistence
of life in the organism?
In short, Kass' claim is
implausible because artificially-sustained whole-brain
individuals can be, quote, "[inaudible] against the world,
in a biological sense." Most conspicuously, as D. Allen Shewman has pointed out, they continue to function
holistically by maintaining homeostasis and growing
proportionally. Indeed, if these individuals can take
in nourishment, and possess it in a way that sustains its
growth, it is hard to see why one would not consider such an
individual alive. Thus, Shewman thinks that no
biologist would consider such artificially-sustained,
brain-dead individuals, as dead.
As noted above, the second
argument entertained by the Council for accepting the loss
of all brain functions as death appeals to the idea that the
brain plays the role of an executive in the integrative
functioning of the human organism; and when this executive
function is destroyed, the organic integration of the
organism is destroyed. What remains is no longer an
organic unity, but a set of mechanically-sustained
subsystems. This argument is not new as it also
appeared as part of the rationale for accepting the
whole-brain criterion for death in the 1981 President's
Commission Report on Defining Death; the main problem with
this argument, however, is that it has been effectively
challenged by critics of the whole-brain criterion. As
noted above, Shewman and others, have questioned whether the
brain is necessary for the organic integration of the human
organism.
If organic integration can
persist in cases of artificially-sustained whole-brain dead
human organisms; then in what sense is the brain the
executor of this integration. There is, indeed, a
problem with the metaphor of the executive function of the
brain. Executive applies, most literally, to a
decision-maker where we think that a deliberate decision by
a person is involved. To speak of the brain as
functioning as an executive is metaphorical at best.
In fact, it is probably misleading to divide the various
functions of a biological organism into categories like
executive and subordinates. Especially if
one wants to understand the workings of an organism as a
whole. The nature of an organism is best understood
holistically - the various parts working together to
constitute a life.
The characterization of the
brain as an executive probably derives more from what we
value about ourselves - our consciousness and personality -
rather than any integrative, or executive, role the brain
may play in the biological integration of the organism.
While the brain does, indeed, play a critical executive role
in explaining human actions and decisions - since such
decisions are crucially dependent on brain functions; the
brain does not play this critical role in the integrative
activity of the human organism. We cannot fathom how
personal deliberations could be made without brain function,
however we can understand how the human organism can be
integrated and continue to live without brain function.
The brain is the control
center for conscious decision-making, but not for organic
integration. Thus, the invocation of the executive
function of the brain in the 1981 Report, and the current
Council's emphasis on this idea as it relates to organic
integration, are misleading. While it is appropriate
to talk about the executive role of the brain in the context
of understanding conscious decisions and actions; it is
inappropriate to talk about the executive functions of the
brain in the context of understanding what integrates human
organic life.
The brain does not have the
kind of executive role in integrating biological processes,
but the brain has this role in integrating human decisions
and deliberate behavior - functions associated with our
understanding of ourselves as, in some sense, something
more than simply organic beings. Indeed, invoking
the significance of the executive function of the brain
would support acceptance of a higher-brain formulation of
death, since the executive functions of the brain crucial to
consciousness and decision-making, require more brain
functioning than the brainstem functions normally associated
with the maintenance of respiration.
There is a further difficulty
with both arguments voiced by the Council. What would
the Council say about whether a human embryo, or fetus, is
an integrated organism? An early fetus lacks a
brainstem-mediated reflex to breathe, and the necessary
brain structures for consciousness. But is this any
reason to think this is not an integrated organism, and
therefore, not alive? Why think that because it does
not have this specific type of openness to the environment,
it is not a living organism? If these functions are
not necessary for it to be a living human organism at the
beginning of life, why think that they are necessary at the
end of life? The fact that a fetus maintains this
homeostasis, and grows in the womb, is evidence that it is
internally, and externally, integrated with its environment.
We should, therefore, consider it a living organism despite
the fact that it lacks a brainstem-mediated reflex to
breathe, as well as consciousness. If this is true in
the case of the fetus, why isn't it true in the case of the
artificially-sustained whole-brain dead body? To be consistent, would the
Council have to say that the embryo is not an organism, and
only becomes one when it has the drive to breathe on its own
- the traditional Jewish view of taking the first breath as
definitive of one's humanity?
Now, the alternative to
the Council's position is to consider the
artificially-sustained whole-brain dead individual to be a
living organism, as Shewman and others hold. Since
artificially-sustained whole-brain dead organisms exhibit
so much activity that we associate with being alive, it is
implausible to consider them to be dead organisms.
However, at this point - and this is, I think, a critical
point - the question arises as to whether it is the same
individual, or being, that previously existed.
Shewman argues that, assuming
death is the loss of organic integration, the same human
organism persists through the loss of all brain functions
since it continues to be organically integrated.
However, there is an alternative to this view - namely, to
consider the artificially-sustained whole-brain dead
individual to be a living organism, but not of the same
kind, or identical, to the human being, or person, that
previously existed. In this view, the human brain, or
person, has died - that is, it has undergone a substantial
change - however, instead of the remains of the human being,
or person, taking the form of an inanimate corpse;
technology has intervened to transform what was a person, or
human being, into a new artificially-created form of life.
In this view, the death of a
human being, or person, is not defined as the irreversible
loss of organic integration, but as the irreversible loss of
psycho-physical integration, where psycho refers to
the capacity, or potential, for conscious experience of the
world. Indeed, I believe that the real reason many of
us have accepted neurological criteria for determining death
is not because we were sure that the loss of all brain
function meant the loss of organic integration; but because
we were sure that the loss of all brain function meant the
loss of any potential for conscious experience of the world.
I've argued for this view
more fully elsewhere, and I don't want to re-iterate those
arguments here, although I'll certainly take questions about
it. Instead, I want to make one further observation
about the current deliberations of the President's Council
on Defining Death. In the transcripts of the
proceedings of September 7, 2006; there are repeated
references to the soul by members of the Council.
Prof. Meilaender: If you
have lost a higher brain capacity but you are still
breathing independently of mechanical assistance and
your heart is beating, then yours is, as far as I'm
concerned, still an animated body with the anima still
present.
Dr. Eberstadt: Leon Kass
[...] mentioned one thing in particular that I think
might be apposite to add to our discussion. And
that's the discussion of the human soul.
Dr. Carson: [...] and it
really gets back to what you were saying, you know,
about the soul or about that part of us that when gone,
no longer allows you to function as a human being.
Prof. Lawler: So the
organism can be a whole and in a certain way from the
traditional point of view, without a soul in a way, in a
controversial way, because the organism then becomes no
brain and all body. And it keeps going. It
keeps ticking literally. So this presents us with
a problem.
Prof. Meilaender: I find
myself in the, for me, unusual position of wanting to
issue a caution with respect to language that is often
thought of as religious. That is to say the soul
language though, of course, it doesn't have to be
necessarily religious language. It can be sort of a
purely philosophical language.
But I was sitting here
when Ben was talking, thinking about the danger of this
language is that people are going to connect soul
language to certain kinds of higher brain capacities.
And think that the loss of the soul is the same as that.
And then sure enough,
five minutes later, Peter talked about a functioning
body from which the soul or the brain is gone. I think
that is a mistake. And I don't think that is the way
the soul language needs to be understood. I just want
to point out that it is a danger.
Dr. Hurlbut: ... trying
to avoid the word soul, we have lost the functional
shorthand for what a lot of people - what relates to a
lot of people's concepts of what is going on in these
realms.
If we could in a gingerly
sort of way reenter into that category without any
disposition of prejudice toward any one formulation, we
might really come to some valuable insight and help our
society reformulate what was meant by soul but in a more
pluralistic and more material physiologically-related
description.
In other words, I think
we might be offered the unique opportunity to clarify
the meaning of soul and psyche in modern terms would be
a really wonderful thing to do because there is a lot
that is being lost by not using the word soul.
Prof. Lawler: ... you
know you can't talk about the human soul in the absence
of a human body as if the soul and the body weren't a
whole.
Chairman Pellegrino: From
the ontological point of view, I believe that death
occurs when the soul leaves the body. I take the
Aristolelean point of view on the soul and the unity of
body and soul, as some of you [have already] said. And
I don't think we are going to be able to discern that
moment by any test that I know.
Now all this talk about the
soul makes me wonder about its relevance. Why are
grown men and women on a US President's Council on Bioethics
talking about the soul in the context of defining death?
I also wonder what exactly the 1981 President's Commission
on Defining Death meant when it said that defining death is
fundamentally a philosophical matter. What relevance
does philosophy, or religion, have to the matter defining
death?
I think it has everything to
do with it. I agree with Dr. Hurlbut that it would,
indeed, be a valuable insight, and help, for our society to
clarify the meaning of soul - or psyche - in modern terms.
Or, more reservedly, it would be a help to see how
alternative views of how our nature involving a soul or
spirit can be reconciled with alternative formulations of
death. However, this is a difficult challenge since
there are many different views about the soul or spirit.
Indeed, I think, that the main obstacle to achieving
consensus on the definition of death stems from a lack of
consensus on our nature as persons or human beings.
Essentially, proponents of alternative formulations of death
have been talking passed each other because they have been
proposing criteria for the determination of death for
different kinds of beings.
The ontological question -
what kind of being are we? or who gets counted among
the living we? - is the fundamental issue that needs
to be addressed before we can begin to formulate more
specific criteria for when such a being begins, and ceases,
to exist. It is interesting, for example, how quick
Prof. Meilaender was to rebut Prof. Lawler's suggestion that
cases of whole-brain death might be cases in which there is
an integrated organism without a soul. Lawler's
suggestion, of course, would be consistent with a
higher-brain formulation of death. However, according
to Meilaender, Lawler's view should be rejected because it
relies on a mistaken understanding of the nature of the
soul. The problem, however, is that the nature of the
soul isn't a biological issue; but a metaphysical one.
And it is unclear why the statutory definition of death
should be grounded in one particular metaphysical view of
the nature of the soul as opposed to another.
For example, what would Prof.
Meilaender's response be to a Japanese person who rejects
the whole-brain neurological criterion on the grounds that
it conflicts with her understanding of ki as an inner
spirit, or self, that does not reside in the brain; and
appears evident in artificially-sustained whole-brain dead
bodies.
It is also worth noting that
Kass' attempt to reinterpret the meaning of organic
integration by positing an innate drive for
interaction with the environment; may simply be a
place-holder for what others would call a soul. Indeed
it is not clear that this drive is a biological
concept at all.
Indeed, the matter of
defining death depends on an understanding of our nature
that is bound up with different religious, philosophical,
and cultural beliefs. In particular, with different
views on the nature of ensoulment, and the very existence of
the soul. Then this argues for a more pluralistic
approach to the definition of death. What would be
helpful in this context would be to show how alternative
views about the nature of the human being or person may be
consistent, or inconsistent, with alternative formulations
of death. At least this would clarify, for many, how
their beliefs about what makes us the kind of beings that we
are; and what we value about ourselves, are related to the
alternative formulations of death.
Instead of pretending that
the matter of defining death is a strictly biological
matter, the metaphysical, moral, and cultural dimensions of
persons would be given their due. Here I agree with,
and I'll close with, Margaret Locke when she says that 'in
this transnational world of increasingly pluralistic
societies; we must begin to recognize a multiplicity of ways
of comprehending and legalizing the process of dying, and
the managing of death.'
Thank you. |
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