Introduction

Debaters have been ignoring a wildly interesting part of the topic: namely, what does it mean for a patient to be deceased? Is brain death sufficient? What about cardiac death? Is it even possible to define death? How do concepts of death vary across countries? (Rememberthis topic isnt US-specific!)

Why do definitions of death matter? Well, first, its an interesting topicality debate. But death also sparks a number of interesting ethical questions. Is it permissible to harvest organs from the irreversibly comatose? How does that affect doctors decisions to withdraw life support? How should we choose between patients in need of organs and potential brain-dead donors?

Even seemingly uncontroversial concepts of deathfor example, cessation of cardiopulmonary activitycome with a host of a complications. How soon after cardiac death should we extract organs? Sooner is typically betterbut what if theres a chance that the patient could be resuscitated? How should we balance between the pressing need for organs and the off chance that a patient could recover?

This file is an exploration into the many issues surrounding different medical definitions of death and the ethical problems that arise as a result. Rather than separating cards by AFF or NEG, I have divided this file into different topic areas. Some cards can be written into a topicality shell; others could be part of a disad. The function of these cards will obviously change based on the situationits up to you to decide how to use them. Ambiguity of DeathNo Singular DefinitionThe idea that there is a singular definition of death is an accident of historyour language surrounding death evolved only because technologies that exist now were not possible in the past.Alan Shewmon 04, [UCLA Medical Center], "The Dead Donor Rule: Lessons from Linguistics," Kennedy institute of Ethics Journal, Volume 14, Number 3, September 2004 (pp 277-300).The dynamic interaction between language and thought goes much deeper than merely focusing attention by naming. What if the assumption that there must be a clear, unitary, objective, correct concept of death is derived not so much from intellectual insight as from an accident of the language we think in: the singularity of the word death? What if our very lexicon is a setup for the interminable and seemingly unresolvable debates about the nature and determination of death, as well as for the incoherent thinking about death that abounds among not only the general public but health professionals as well? Most languages contain a single-word equivalent to the English death, suggesting that there is indeed a corresponding singular concept universally understood across societies down through history. This makes sense, because up until the very recent advent of life support in developed countries, the set of candidate death events was fairly limitedfinal breath, decapitation. . . . Moreover, nothing critical hinged on the exact timing of deathso long as it had surely occurred prior to burial. But modern developed countries now find themselves with death situations unknown and inconceivable throughout the millennia during which languages developed. Therefore, just because one grew up learning to speak and think with the one word death, it does not follow that one also must think with the same singular concept in the context of modern ICUs. (Neither does the new context necessarily imply that one should not think in terms of a singular death concept; it simply raises the question, which I believe is answered in the course of this paper.)Language surrounding death varies from culture to culture. Alan Shewmon 04, [UCLA Medical Center], "The Dead Donor Rule: Lessons from Linguistics," Kennedy institute of Ethics Journal, Volume 14, Number 3, September 2004 (pp 277-300).Some languages have no equivalent for the English word death. For example, in the Kovai language of Papua New Guinea, the verb um means to die, but the noun formed from it, umong, means not only death but also mere sickness (not necessarily fatal). There is no other obvious word for death or sickness. This may be quite common in Papua New Guinean languages (personal communication, Michael Johnstone, Cam- bridge University). In Tok Pisin, English-based creole of Papua New Guinea, he dies/is dead is rendered em i dai, which can also mean he is unconscious. To indicate what we call death they add an aspectual qualifier: em i dai pinis, which also can mean something like he is al- ready dead and which is not available for the future tense, or dai olgeta (die altogether) (personal communication, Eva Lindstrom, Linguistics, Stockholm University). These peoples very language seems to reflect a world-view in which the demarcation between life and death lies more in the direction of life than we tend to think. A similar thing occurs in Quechua: My sister-in-law is dying! This, in Quichua, may mean anything from a headache to a snakebite. If one is in excellent health, he is living. Other- wise, he is dying. (Elliot 1957, pp. 4243) Such a linguistic difference reflects a profound difference in world-view, in which death is viewed not as the end of life but as a kind of extreme of illness, after which the spirits of the dead continue to live (physically) in a different place, eating, sleeping, working, and so forth, from whence they may return periodically to speak about their present life to family mem- bers in dreams.There is no universally true definition of death.Alan Shewmon 04, [UCLA Medical Center], "The Dead Donor Rule: Lessons from Linguistics," Kennedy institute of Ethics Journal, Volume 14, Number 3, September 2004 (pp 277-300).We should abandon the search for criteria for the universally true moment of death, as there is no single, context-independent, true mo- ment of death. Rather, there are various moments of state discontinuity, not all of which necessarily occur in a given case, and not all of which are equally striking to the senses and intellect of an observer. All of these state discontinuities are equally real and valid phenomena in themselves, and there is no a priori reason that one of them must be singled out for the designation death while the others slip into conceptual obscurity for want of a word. Once we recognize the restrictions that our language tends to impose on our ways of thinking about death, we can attempt to transcend them through expanding the vocabulary to correspond to the more enlightened understanding. We could invent words for E1, E2, and so forth, that would be distinct enough not to create a false impression that they were all spe- cies of the same conceptual genus death, but simply different moments of state discontinuity resulting from changes in observable parameters along the continuous process known as dying and decaying.We should not think of death as a moment that demarcates when organ procurement is permissible. Alan Shewmon 04, [UCLA Medical Center], "The Dead Donor Rule: Lessons from Linguistics," Kennedy institute of Ethics Journal, Volume 14, Number 3, September 2004 (pp 277-300).Society traditionally has assumed a univocal notion of death, in large part because until very recently in human history there was no need for a more nuanced notion. Thus, our language developed with only a single word for death, namely, death and its relatives dead, to die, and the like, euphemisms excluded. What served humankind well linguisti- cally for most of history now tends to restrict thinking when applied to situations uniquely occasioned by modern medicine. It is time to expand our death vocabulary to facilitate the recognition of multiple events, all equally real, along the process from declining health to decomposition. Depending on the context, some of these death-related events may constitute a more obvious discontinuity than others and may more justifiably be considered death within that context. It also may be more appropriate emotionally and/or morally to begin certain kinds of death behavior at one of these moments and not others, depending on the clinical context and the behavior in question. There is no reason to assume a priori that there must be an overarching, unitary conception of death from which all diagnostic criteria and tests must derive. Regarding organ transplantation, the important and truly meaningful question is not When is the patient dead? but rather When can organs X, Y, Z . . . be removed without causing or hastening death or harming the patient in any way? Perhaps some of the general publics confusion and incoherence surrounding the DDR, as revealed by the Siminoff, Burant, and Youngner survey, results from a mismatch between peoples intuitive understanding of death in the era of modern medicine and the limited lexicon that our colloquial language imposes on us for articulating that intuitive understanding.RelativityDeath is ambiguous and culturally relative.Elysa R. Koppelman 03, [Oakland University], "The Dead Donor Rule and the Concept of Death: Severing the Ties that Bind Them," The American Journal of Bioethics, 3:1, Winter 2003, 1-9.Veatch and Charo both believe that death is an ambiguous concept because it is not a purely bio- logical concept. Death is a social, normative is- sue that is inuenced by religion, metaphysics, and values (Veatch 1999); it is a concept that is intimately tied with social or political goals (Charo 1999). Death has moral, religious, and political connotations making its extension something not purely empirical, but laden with feelings, values, and beliefs. Because of this belief about the nature of death, these theorists claim that a single mo- ment is insufcient to justify all social and moral concerns that seem to be connected with death for all people. Both theorists share the intuition that lies behind the dd rule, claiming that we need mo- ments of death, both socially and psychologically, but they argue that these moments differ among individuals and cultures.Legal FictionsEven if death is ambiguous, we can still create legal fictions about death in the realm of public policy. Elysa R. Koppelman 03, [Oakland University], "The Dead Donor Rule and the Concept of Death: Severing the Ties that Bind Them," The American Journal of Bioethics, 3:1, Winter 2003, 1-9.Charo argues that for public policy it seems far easier to recognize and then disregard the ambiguity of death than to embrace it. She questions whether the general public can handle the ambiguity and subtle nuances needed to make personal decisions about the meaning of death. Public acceptance, she writes, is far easier to gain by urging people to focus on a single, simple, seemingly self- evident truth. What the public needs are simple rules that are accessible to common sense and common experience. The public has accepted legal fictions in the past, Charo points out, because their acceptance resolves moral or social problems in a way that exemplifies presumptions about the hierarchy of values to be upheld in any particular situation in which they are implicated. The same approach might work for public policy surrounding death. Given the difficulties in reaching consensus on a medical definition of death, law can be used to create fictions. For example, we have accepted the legal fiction of considering persons who have been missing for a certain amount of years as dead. Although the real status of the missing person is unknown, we have agreed to accept a set of somewhat arbitrary facts as grounds for acting as if the person is dead. We deem it reasonable to act this way in agreed-upon circumstances in part because doing so allows us to uphold certain values we believe to be important. Likewise, Charo argues, we might get the public to agree that patients in PVS can be considered dead for the purpose of resolving marital concerns. This is because some values that marriage refects are not being met if one partner is in PVS, and the public believes that these values are important enough to outweigh any rights the PVS patient might have in this area.Legal determinations of death should be context-specific.Elysa R. Koppelman 03, [Oakland University], "The Dead Donor Rule and the Concept of Death: Severing the Ties that Bind Them," The American Journal of Bioethics, 3:1, Winter 2003, 1-9.Determinations of death seem to be connected to many moral and social acts. But since there is no consensus about death for all moral and social acts, Charo suggests that we accept a different point for each moral and social act that depends on death as a legal fiction and that we do so in the name of up- holding important social values. Each {the} point at which we consider a patient dead for a particular purpose needs to be easily accepted and understood by the public.AT Legal FictionsThere is no way to generate consensus on a legal fiction about death as it relates to organ procurement. Elysa R. Koppelman 03, [Oakland University], "The Dead Donor Rule and the Concept of Death: Severing the Ties that Bind Them," The American Journal of Bioethics, 3:1, Winter 2003, 1-9.The problem with the legal concept of brain death is that there is no consensus on the state of affairs under which it would be reasonable to act as if the person were dead for certain purposes, such as removing organs or withdrawing life support. There is no common-sense reality; there is no com- mon experience. We cannot get the public to fo- cus on a single, simple, self-evident truth, because there are too many alternative ontological and moral commitmentscommitments that carry with them strong emotions because they are often tied intimately to ones identity or worldview. And it seems consensus is unlikely given the social, po- litical, and normative nature of the concept of death. Legal ctions might be a good idea in some cases, but it is unlikely that they will work here. Recognizing and then disregarding the ambiguity of death simply has not been successful. So how can advocates of the dd rule respond to the fact that brain death has not been completely accepted by the public as a legal ction? The contrary approachesdiscarding and em- bracing ambiguityare reected in a discussion on the Critical Care Medicine-Listserv (CCM-L)1 concerning how to approach the parents of a brain- dead child about organ donation. Should you A. tell parents that their child is dead and that the organs are being kept functioning by articial means; or B. tell the parents that their child is brain-dead and then explain what that means? Aviel Roy-Shapira, who posted this question, wrote that arguments for A focused on the claim that the message of death should be unambiguous (that is, the ambiguity should be downplayed or masked) and that arguments for B. emphasized that the ambiguity cannot be masked, that the family cannot believe a direct statement of death, seeing their beloved all rosy, with a regular heart rate on the monitor.New definitions of death are motivated by an interest in procuring organs. George Khushf 10, [University of South Carolina], "A Matter of Respect: A Defense of the Dead Donor Rule and of a "Whole-Brain" Criterion for Determination of Death," Journal of Medicine and Philosophy, 35, 330-364, 2010.I will argue that it is exactly in this sense that organ donation plays a role in the refinement of death concepts. (The same could also be said for the relevance of other high-technology medical practicessuch as the termina- tion of high cost, resource, and labor intensive carefor the development of new criteria for determination of death. For the sake of simplicity, I will just focus on the questions related to organ donation.) Two things jointly moti- vate and inform the development of more precise criteria for determination of death: (a) the costs of being too conservative and (b) the potential masking effect of technologies used to sustain life. We can thus concede that an interest in harvesting organs (along with some other interests) partly motivates and informs the development of new neurological criteria for determining death. This fact, by itself, is very inter- esting. Death is obviously a pervasive human phenomenon. each person in her own turn must face it. And death must be faced not just in the final mo- ments of life, but throughout life. For each of us, an awareness of our own impending death provides a horizon and limit for what we might accomplish during our brief stay on earth. The wisdom of the great philosophical and religious traditions are all, in some way, related to how this inescapable da- tum of human existence might inform our lives and how it might be man- aged. But when we come to our current debates about death and the criteria of death, these big questions are largely forgotten, and nearly everything is framed in a rather narrow medical context. To this extent, the criteria for determining death are oriented toward medical ends that are, in the larger human scheme of things, but a tiny, insignificant consideration (Nozick, 1981, chapter 6).Brain DeathBrain Death- GenericThe use of brain criteria for determining death is generally accepted in the United States and abroad. Michael A. DeVita et al 92., [assistant professor of anesthesiology/critical care medicine and director of the Surgical Intensive Care Unit at Montefiore University Hospital, University of Pittsburgh medical Center], History of Organ Donation by Patients with Cardiac Death, in Procuring Organs for Transplant: The Debate over Non-Heart-Beating Cadaver Protocols, Johns Hopkins University Press, Print, 1992, pp. 24-25. While some debate continued, the use of brain criteria for determining death grew in acceptance in the 1970s and 1980s in both the United States and abroad. Legislative action in the United States (Curran 1989; Report 1986) and elsewhere (Kaufman et al. 1979) attempted to prove identification and recruitment of brain dead donors. In Denmark, Sweden, France, Israel, Italy, and Norway organs can be taken from all brain dead patients unless the patient had specifically denied permission (Kaufman et al. 1979). Over the last 18 years, withdrawal of life support from living patients who have requested, or whose surrogates have requested, that the support be withdrawn has been gaining in acceptance in the U.S., and is supported by case law (In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976); Meisel 1992). This has probably contributed to the acceptance of discontinuing ventilator support of patients who can be declared dead using neurologic criteria. Despite objections, neurological death is generally accepted by the medical community. Rodriguez-Arias et al 11, David Rodriguez-Arias, [Universidad del Pais Vasco/EHU], Maxwell J. Smith [University of Toronto], and Neil M. Lazar [University of Toronto and University Health Network], "Donation After Circulatory Death: Burying the Dead Donor Rule," The American Journal of Bioethics, 11(8), 2011.These problems have led scholars to support organ re- trieval from brain-dead patients by way of two main justi- fications. The Presidents Council on Bioethics has argued for the necessity of a new definition of death: the cessation of the fundamental vital work of a living organismthe work of self-preservation, achieved through the organisms need-driven commerce with the surrounding world (Pres- idents Council on Bioethics 2008). This alternative has been acknowledged to be the best available rationale to equate the destruction of the entire brain to death, but has also been thoroughly criticized as being a vague, arbitrary, in- consistent and counterintuitive contortion of semantics intended to save the neurological standard at all intellec- tual costs (Shewmon 2009, 20). A second justification has been offered by Truog and others, who have claimed that procuring organs from patients with a severe brain injury can be performed in a respectful and protective way, albeit acknowledging that it constitutes an acceptable violation of the DDR (Truog and Robinson 2003). We explore the impli- cations of this proposal throughout this article. There are clearly unresolved issues regarding the determination of death by neurological criteria in relation to organ procurement. However, organ procurement from brain-dead patients is widespread and is for the most part a fairly uncontroversial practice, certainly due to the fact that neurological death remains a reliable criterion for estab- lishing a prognosis of irreversibility. Where controversy is now focused is in cases of donation after circulatory death (Bernat 2010).Whole brain death has near universal legal status. Iltis and Cherry 10, Ana Smith Iltis [Associate Professor, Center for Health Care Ethics, Saint Louis University] and Mark J. Cherry [St. Edward's University], "Death Revisited: Rethinking Death and the Dead Donor Rule," Journal of Medicine and Philosophy, 35: 223-241, 2010.The conceptualization of whole brain death as death was further advanced by two significant events in 1981. First, the national Conference of Commis- sioners on Uniform State laws (nCCUSl) published the Uniform determina- tion of death Act (UddA). The UddA (1981) stated that: An individual who has sustained 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 accordance with accepted medical standards. Second, the Presidents Com- mission for the Study of ethical Problems in Medicine and Biomedical and Behavioral research published a report affirming the findings and recom- mendations of the harvard Ad hoc Committee published in 1968 regarding a whole brain definition of death and urging adoption of the UddA (previously endorsed by the American Medical Association, the American Bar Association. and the nCCUSl). It was hoped that the UddA would be adopted in all states so that there would be one single set of guidelines describing who was dead and how death could be determined throughout the United States. The failure to adopt uniform standards for determining death would have interesting implications, with people who would be deemed dead in one state being considered very much alive in other states. eventually, all 50 states recognized neurological criteria for determining death. Two states, however, have specific laws (new Jersey) or regulations (new york) in place to accommodate persons who object to declarations of death grounded in neurological criteria on religious grounds (such as Ortho- dox Jews; see Olick, 1991; new york, 1987; new Jersey declaration of death Act, 1991).Harvard Committee DefinitionA 1968 Harvard committee defined death to include cessation of all brain functions.Norman Frost 04, [Professor of Pediatrics and Bioethics; Director of the Bioethics Program; and Vice Chair of the Department of Medical History and Bioethics at the University of Wisconsin-Madison], "Reconsidering the Dead Donor Rule: Is it Important that organ Donors be Dead?" Kennedy institute of Ethics Journal 14.3 (2004) 249-260.In 1968, an ad hoc committee at the Harvard Medical School (Harvard Medical School Ad Hoc Committee 1968) published a report with the explicit utilitarian intent of improving the supply of organs for transplantation (Pernick 1999). To achieve this goal, the committee reported its conclusions on a strictly medical matter and then made a policy proposal. The medical conclusion was that they had identified criteria for reliably ascertaining when all brain functions had irreversibly ceased and a patient could be considered to be irreversibly comatose. This condition they called "brain death." The policy proposal was that this medical conditiondeath of the brainbe accepted as constituting death of the person and that laws be enacted to acknowledge this. Implicit in the report was the assumption thatfor reasons of ethics, law, and public acceptancea patient should be dead before vital organs were removed. This assumption has come to be known as "the dead donor [End Page 249] rule" (Robertson 1998). Since the traditional definition of death, based on irreversible loss of cardiorespiratory function, had been undermined by the development of machines that could replace these functions, a new definition of death was needed.Higher Brain DefinitionHigher brain advocates believe that death should focus on the permanent loss of brain function necessary for consciousness or personal identity. George Khushf 10, [University of South Carolina], "A Matter of Respect: A Defense of the Dead Donor Rule and of a "Whole-Brain" Criterion for Determination of Death," Journal of Medicine and Philosophy, 35, 330-364, 2010.Generally, higher brain critics argue that a policy on determining death in humans should focus on the permanent loss of that brain function necessary for consciousness or personal identity. here, there are several variants. Ac- cording to Veatch (1993, 24; also 1988 a,b, 2005), the task of defining death primarily concerns whether somebody is to be treated as a member in full standing of the human moral community. he thinks that this concerns whether someone has integrated functioning of mind and body not whether he/she is a person. Veatch distinguishes his morally grounded argument from that of other higher brain advocates like Green and Wikler, who make death depend on an account of personal identity. Using a brain switch scenario, Green and Wikler (1980) argue that an individual, for example, Jones, is not identical with the individual that person becomes when all con- tinuity of self-awareness is lost. Jones, whatever kind of entity he is, is es- sentially an entity with psychological properties. Thus, when brain death strips the patients body of all its psychological traits, Jones ceases to exist. (121) Green and Wikler claim that their argument rests on ontological con- cerns related to personal identity but that these arguments do not depend on controversial accounts of personhood or on moral concerns associated with who has full standing in a moral community (as in the arguments of Veatch). A third, higher brain argument can be found in Puccetti (1976) and Glover (1977). For them, death occurs when life no longer has value for the human whose life is considered. This is morally grounded, but, unlike Veatchs argu- ment, it depends on a kind of moral factwhether persons in question could value their own liferather than on more complex considerations about who deserves full standing as members of a moral community. De- spite these differences, all advocates of higher brain definitions share some common assumptions: a determination of death depends on an individual- oriented or person-oriented account of what is essential to or a condition of being human; it then uses loss of higher brain function essential for individu- ality/personal identity/valuing life as a criterion and recognizes that tests would then need to be developed to ascertain when such function is lost. In all cases, determination of death is emphatically not a purely biological matter.Presidents Commission DefinitionThe Presidents Commission, which is a model for the majority of state statutes, recognizes both brain death and cardiac death. David Cole 92, [associate professor of philosophy in the Department of Philosophy, University of Minnesota], Statutory Definitions of Death and the Management of Terminally Ill Patients Who May Become Organ Donors After Death, in Procuring Organs for Transplant: The Debate over Non-Heart-Beating Cadaver Protocols, Johns Hopkins University Press, Print, 1992, p. 70. Third, there are statutory definitions of death: These stipulate what is to count as death for legal purposes. A host of states have adopted new statutory definitions of death. These are revisionary in various ways; most conspicuously, they embrace brain death. The statues are much narrower than the concept of death and the phenomenon of death. Typically they provide a definition of death that is inapplicable to organisms that lack brains and hearts. The UPMC protocol occurs against a background of more than 20 years of discussion of the legal definition of death and proposals for reform. A central event in that discussion was the publication in 1981 of the report by the Presidents Commission entitled Defining Death. That report centers around a proposed Uniform Determination of Death Act: An individual who has sustained 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 accordance with accepted medical standards. This is the model for a majority of the state statutes. The widely accepted Presidents Commission recognizes both cardiopulmonary and neurological criteria for the same phenomenon of death.George Khushf 10, [University of South Carolina], "A Matter of Respect: A Defense of the Dead Donor Rule and of a "Whole-Brain" Criterion for Determination of Death," Journal of Medicine and Philosophy, 35, 330-364, 2010.In sum, the Presidents Commission assumed that cardiopulmonary and neurological criteria were different criteria for the same phenomenon of death. These criteria provided two windows on the same event. By focus- ing only on the criteria and not on the higher generality basic concepts, the Commission left open how explicitly one understands that single phenom- enon of death. The policy recommendation of the Presidents Commissionoutlining the second pillarwas rapidly enshrined in law and clinical practice. Although neither Capron-Kass nor the Presidents Commission addressed DDr in their writings on the determination of death, this first pillar arose as the de facto result of an explicit statute providing the second pillar. Broad social prohibi- tions against the direct taking of human life were already in place in all states. since viable organs depended on perfusion, a consequence of the second pillar was that the new neurological criteria would provide the basis for determining death of organ donors.6

AT Brain DeathJapan does not accept the concept of brain death in organ transplantation. Michael A. DeVita et al 92., [assistant professor of anesthesiology/critical care medicine and director of the Surgical Intensive Care Unit at Montefiore University Hospital, University of Pittsburgh medical Center], History of Organ Donation by Patients with Cardiac Death, in Procuring Organs for Transplant: The Debate over Non-Heart-Beating Cadaver Protocols, Johns Hopkins University Press, Print, 1992, p. 25. The general acceptance of brain death criteria was not without exception, however. In Japan, where controversy over organ procurement from a brain dead donor had broken out more than a decade earlier, as late 1985 surgeons were indicted on murder charges for the removal of kidneys, pancreas, and liver from a brain dead woman. Because of lack of public acceptance of the concept of brain death, cadaver organ donation in japan comes only from non-heart-beating cadaversthose pronounced dead by cardiac criteria (Koyama et al. 1989, Fujita et al. 1989; Kozaki et al. 1991). Brain death legislation drew considerable opposition. Michael A. DeVita et al. 92, [assistant professor of anesthesiology/critical care medicine and director of the Surgical Intensive Care Unit at Montefiore University Hospital, University of Pittsburgh medical Center], History of Organ Donation by Patients with Cardiac Death, in Procuring Organs for Transplant: The Debate over Non-Heart-Beating Cadaver Protocols, Johns Hopkins University Press, Print, 1992, p. 24. Opposition to brain death legislation came mainly from individuals in whose view such bills were manifestations of a movement to withhold medical care and life support from handicapped persons (Curran 1989). At a meeting in 1971, philosophers and theologians denounced brain death as a crass expediency, unnecessary, and immoral that was hastily devised by surgeons (Foster 1076; Perry 1979). They took issue with the Harvard decision that death of the central nervous system equals death of the individual. They argued that it was more precise to say that death of the central nervous system is always followed by death but in fact is not death. Van Till (1976) argues forcefully that the Harvard Committee was attempting to declare death to achieve practical ends, and therefore its conclusions were unethical and legally unacceptable. Tests to determine brian-death are inconsistent and inconclusive. Robert D. Truog 97, [Professor of Medical Ethics, Harvard Medical School], "Is it time to abandon brain death?" Hastings Center Report 27, no. 1 (1997).Finally, clinicians have patients who fulfill the tests for brain death frequently respond to surgical incision at the time of organ procurement with a significant rise in both heart rate and blood pressure. This suggests that integrated neurological function at a supraspinal level may be present in at least some patients diagnosed as brain-dead. This evidence points to the conclusion that there is a significant disparity between the standard tests used to make the diagnosis of brain death and the criterion these tests are purported to fulfill. Faced with these facts, even supporters of the current statues acknowledge that the criterion of "whole-brain" death is only an "approximation."The concept of brain death is incoherent.Franklin G. Miller 08 [Department of Bioethics at the National Institutes of Health] and Robert D. Truog [Professor at Harvard Medical School], Rethinking the ethics of vital organ donations, Hastings Center Report, Volume 38, Number 6, November-December 2008, pp. 38-46.We contend that the proposition that brain death constitutes death of the human being is incoherent and, therefore, not credible. To be sure, brain death is a valid diagnosis of irreversible coma. No one who satisfies the criteria for brain death regains consciousness.3 Contrary, however, to the Uniform Determination of Death Act developed by a president's commission in 1981, many patients properly diagnosed as dead under whole brain death criteria do not have "irreversible cessation of all functions of the entire brain."4 For example, the brains of many patients retain a variety of homeostatic functions, from regulation of temperature to control over salt and water balance.5 James Bernat and colleagues have responded that brain death should not require the loss of literally all functions of the entire brain, but only those that preserve the "functioning of the organism as a whole."6 According to Bernat, the diagnosis of brain death signifies the loss of those critical brain functions that maintain the integrity of the body as a living organism.7 The loss of these functions causes the body to "dis-integrate," leading over a period of days to cardiac arrest. This deterioration is claimed to be inevitable, regardless of whether the patient is on life support.The brain dead are not really dead. Franklin G. Miller 08 [Department of Bioethics at the National Institutes of Health] and Robert D. Truog [Professor at Harvard Medical School], Rethinking the ethics of vital organ donations, Hastings Center Report, Volume 38, Number 6, November-December 2008, pp. 38-46.With both theoretical analysis and empirical data, Alan Shewmon has seriously challenged Bernat's defense of brain death. Shewmon has shown, for example, that some patients who fulfill all of the diagnostic criteria of brain death can "survive" for many years.8 With life support systems no more complex than home mechanical ventilation, these patients maintain an array of integrative functions including circulation, digestion and metabolism of food, excretion of wastes, hormonal balance, wound healing, growth and sexual maturation, and even gestation of a fetus. Based on meta-analytic data of brain dead patients maintained on ventilators for one week or more, Shewmon argues that the human body does not need the brain to integrate homeostatic functions, and that integration of these activities is possible even in the absence of these supposedly critical brain functions. In sum, patients who fulfill all of the diagnostic criteria for brain death remain alive in virtually every sense except for the fact that they have permanently lost the capacity for consciousness.Brain death is impossible to determine.Norman Frost 04, [Professor of Pediatrics and Bioethics; Director of the Bioethics Program; and Vice Chair of the Department of Medical History and Bioethics at the University of Wisconsin-Madison], "Reconsidering the Dead Donor Rule: Is it Important that organ Donors be Dead?" Kennedy institute of Ethics Journal 14.3 (2004) 249-260.Problems with the medical definition and ascertainment of "brain death" have long been evident. Many patients determined to have lost all brain function still maintain hypothalamic function sufficient to regulate water balance (Lynn and Cranford 1999), so the "whole brain" in fact has not ceased to function. Cells continue to function, evidenced by recovery of stem cells which can be propagated in vitro. And in the real world of clinical practice, even those who are called upon to make the determination of when a patient is dead according to these criteria have a high rate of misunderstanding, confusion, and error. For example, only 35 percent of physicians and nurses likely to be involved in organ procurement at a major academic health center correctly identified the legal and medical criteria for determining death. Nineteen percent of these clinicians "had a concept of death that was consistent with . . . (classifying) . . . anencephalics and patients in a persistent vegetative state as dead" (Youngner et al. 1989).

AT Harvard Committee DefinitionThe Harvard Committees definition of death has nothing to do with biological death and is instead an imposed moral judgment. Robert M. Veatch 04, [Professor of Medical Ethics, Kennedy Institute of Ethics, Georgetown University], "Abandon the Dead Donor Rule or Change the Definition of Death?" Kennedy Institute of Ethics Journal 14.3 (2004) 261-276.As a graduate student at Harvard interested in medical ethics, I worked closely with several of the members of the Ad Hoc Committee, including Henry Beecher, its chair, and Ralph Potter, the theological ethicist on the committee. None of the members was so naive as to believe that people with dead brains were dead in the traditional biological sense of the irreversible loss of bodily integration. (Some may have made the logical and empirical mistake of assuming that people with fully dead brains are dead because they are inevitably soon to experience death in the traditional biological sense, but some committee members understood that the predicted loss of this bodily integration in the near future did not prove that the individual with a dead brain already was dead.1 ) Rather, committee members implicitly held that, even though these people are not dead in the traditional biological sense, they have lost the moral status of members of the human moral community. They believed that people with dead brains no longer should be protected by norms prohibiting homicideeven merciful homicide with the consent of the one killed. In effect, the committee and its fellow travelers proposed an entirely new definition of death, one that assigned the label "death" for social and policy purposes to people who no longer are seen as having the full moral standing assigned to other humans. This then new definition of death thus ceased to have inherent biological meaning, but rather embodied a moral meaning. The committee members [End Page 267] identified a group of humans deemed to have undergone a quantum change in moral status and called them "dead." This signaled that such persons would stand in a new relation with the moral community. Among the implications would be that organs that normally preserve life could be removed without the elaborate moral defense normally necessary to justify a homicide. Once one is labeled "dead," mere advance approval of the individual or of a valid surrogate routinely would justify removal of organs that normally would preserve life. The person with a dead brain would be treated the way dead people are treated.The Harvard criteria for death sets incoherent standards. Norman Frost 04, [Professor of Pediatrics and Bioethics; Director of the Bioethics Program; and Vice Chair of the Department of Medical History and Bioethics at the University of Wisconsin-Madison], "Reconsidering the Dead Donor Rule: Is it Important that organ Donors be Dead?" Kennedy institute of Ethics Journal 14.3 (2004) 249-260.The other conclusion of the Harvard reporti.e., that patients who are "brain dead" are in fact deadalso has been subject to increasing criticism for two reasons. First, on epistemological grounds, there are many competing proposals for what constitutes "death," and there is no objective way of identifying which is the "right" or "correct" definition (Arnold and Younger 1993; Emanuel 1995; Halevy and Brody 1999). Second, the concept of "brain death" as equivalent to death of the person is not coherent to substantial numbers of ordinary citizens. For some, the standard is too high, as they believe a loved one has died long before the whole brain has ceased to function. For some, the standard is too low, as it is difficult to accept that a patient is dead when he appears to be sedated but otherwise normal, with good color and all other organs functioning normally, and indistinguishable from many others in the intensive care unit whose status as "alive" is not in question.Lack of ConsensusA current lack of consensus exists on the definition of death and the permissibility of organ procurement from dead patients. Robert M. Veatch 04, [Professor of Medical Ethics, Kennedy Institute of Ethics, Georgetown University], "Abandon the Dead Donor Rule or Change the Definition of Death?" Kennedy Institute of Ethics Journal 14.3 (2004) 261-276.Laura Siminoff, Christopher Burant, and Stuart Youngner (2004) have made clear that substantial confusion and disagreement ex- ists among the citizens of Ohio over the definition of death and [End Page 261] when organs for transplant can be procured. The cases presented in their survey involved (1) a patient who had lost all functions of the entire brain (Scenario 1: the "brain death" case), (2) an irreversibly comatose patient on a ventilator with no possibility of recovery of consciousness (Scenario 2: irreversible coma), and (3) a patient breathing without mechanical support who had no possibility of recovery of consciousness (Scenario 3: the PVS case). Responses to these three cases from more than 1300 Ohio residents show not only that the respondents apparently often misunderstand the Ohio law regarding the definition of death and organ procurement, but also that their moral intuitions appear significantly inconsistent with that law. A majority was wrong in their belief about whether someone with a dead brain was legally dead. On the other hand, a majority was willing to claim that the comatose person was really dead, and, in spite of enormous publicity about famous patients in persistent vegetative statesuch as Karen Quinlanbeing alive, a large minority (34%) considered such a person dead. Youngner and others have documented how physicians and nurses were similarly confused and in disagreement about the status of patients with dead brains or severe brain pathology. In 1989, using a somewhat different method, he and his colleagues found that only 35 percent of respondents within the health professions correctly identified the legal and medical criteria for determining death (Youngner et al. 1989). The Ohio study by Siminoff and colleagues also shows that one third of the respondents is willing to donate the organs of at least some humans considered alive, at least when presented with a hypothetical scenario. That is, they are willing to condone killing them to get their organs. They would, in short, be willing to break the "dead donor rule" (DDR), which holds that one cannot licitly procure life-prolonging organs from a donor until that donor is dead. To procure when the organ source is still alive would kill the donor. It would be a homicide, and even the explicit permission of the donor does not legally justify a homicide. The present study thus raises the question of whether a rule that is near sacrosanct in the transplant community can be supported if there is such a large minority who reject it. Moreover, Siminoff and her colleagues also found that a very large percentage (about 95%) were willing to procure life-prolonging organs from legally living comatose and vegetative patients when they were mistakenly classified as dead. This represents a second group that would, in effect, break the DDR because they were mistaken about classifying legally living patients as deceased. [End Page 262] The apparent confusion among lay people and health professionals over the definition of death and the DDR raises provocative questions not only for clinicians and policymakers, but also for theoreticians who have analyzed the definition of death and placed substantial weight on the DDR (Arnold and Youngner 1993). Recent scholarship has called that rule into question (see Koppelman 2003 and fifteen accompanying commentaries on the subject).

Brain Dead DonorsBrain-dead patients were a main source of transplantable organs before the institution of brain death laws.Robert M. Arnold et al 92, [associate professor of medicine in the Division of General Internal Medicine and associate director for education at the Center of Medical Ethics, University of Pittsburgh Medical Center], Back to the Future: Obtaining Organs from Non-Heart-Beating Cadaver Donors, in Procuring Organs for Transplant: The Debate over Non-Heart-Beating Cadaver Protocols, Johns Hopkins University Press, Print, 1992. If organ transplantation is going to continue to flourish, alternative sources of organs must be found. Patients who have been declared dead by cardiopulmonary criteria, rather than brain-oriented criteria, are another potential sources of transplantable organs. These patients are referred to as non-heart-beating cadaver donors (NHBCDs) because their hearts are no longer beating at the time of organ procurement. Prior to the institution of brain death laws, NHBCDs were the main source (along with living, related donors) of organs for transplantation. This method fell into disfavor following the advent of brain death legislation because, in contrast to HBCDs, the organs of NHBCDs are not perfused up to the time of procurement. Between the time the patient diesi.e., when the heart stopsand the organs are procured, the organs suffer damage, often irreparable, because of the lack of blood flow, this damage is called warm ischemia. Conflicts of InterestProcuring organs from brain-dead patients generates ethical problems for the doctor who must decide whether to withdraw life support. Byers W. Shaw 92, [professor of surgery and chief of transplantation, Department of Surgery, University of Nebraska Medical Center], Conflict of Interest in the Procurement of Organs from Cadavers Following Withdrawal of Life Support, in Procuring Organs for Transplant: The Debate over Non-Heart-Beating Cadaver Protocols, Johns Hopkins University Press, Print, 1992, p 105.The first time that the issue of conflict of interest arises is not in contemplating withdrawal of care, but in judging that the prospective donors condition is hopeless. For instance, imagine that the intensivist who has grown weary of the prolonged and, to his view, agonizing deaths of so many patients with so many horrible diseases. This physician may find more hope in the life-saving opportunity provided by organ transplantation. If the person in need of organ transplantation is younger, more attractive, or in some way seems more deserving than another critically ill patient, then the conclusion that one patients condition is hopeless can be tainted by an understanding of the tremendous hope organ availability holds for another. To carry the example further, once our intensivist (or other responsible physician) has decided that a patients condition is hopeless, he has to work through exactly which measures can be withdrawn without causing suffering. For example, the physician often must decide whether removing the ventilator from a ventilator-dependent patient will cause the patient to suffer. It will lead to death by hypoxia or hypercarbia, and the obvious concern is that if the patient can feel the symptoms of either of these syndromes, substantial suffering, even terror, can result. Physicians may administer drugs that decrease comatose patients viability for transplantation, thus prolonging suffering. Byers W. Shaw 92, [professor of surgery and chief of transplantation, Department of Surgery, University of Nebraska Medical Center], Conflict of Interest in the Procurement of Organs from Cadavers Following Withdrawal of Life Support, in Procuring Organs for Transplant: The Debate over Non-Heart-Beating Cadaver Protocols, Johns Hopkins University Press, Print, 1992, p 106.We should pause to recognize the potential existence of another conflict of interest that could also be harmful to the patient from whom treatment is withdrawn. If the physician in charge of the withdrawal of treatment harbors negative feelings toward organ donation or transplantation, he may administer drugs in a manner that decreases their viability for transplantation. For example, one could prolong the period of hypotension and acidosis by occasional reduction in the doses of sedatives or the judicious use of sodium bicarbonate to counteract acidosis. Such measures might seem justifiable if intended to prevent sedation from leading directly to the patients death. What might on the surface be viewed as entirely proper may have its roots in a deeply felt desire to prevent the use of the organs for transplantation. The more disturbing aspect of this misdirected approach, however, is that it might prolong the critically ill patients suffering, to say nothing of making a spectacle of the entire proceedings.

Cardiac DeathCardiopulmonary Criterion of DeathDeath should be defined as a purely biological concept in cardiopulmonary function is the sole criterion. George Khushf 10, [University of South Carolina], "A Matter of Respect: A Defense of the Dead Donor Rule and of a "Whole-Brain" Criterion for Determination of Death," Journal of Medicine and Philosophy, 35, 330-364, 2010.The second strand of criticism comes from those who advance a nonbrain criterion or, more positively stated, who advance cardiopulmonary function as the sole criterion. At the time of the Presidents Commission (413), this position was regarded as the traditional or romantic concept (Veatch, 2009, 17) of those who did not sufficiently appreciate how technology alters the context for determining death. Today, however, it is often advanced as the hard-nosed purely biological option (Truog, 1997, 2000, 2007; shewmon, 2001, 2009). here, I will take robert Truog as representative. For him, death is a purely biological concept, and it occurs when the organism ceases to function as a whole. But Truog denies any privileged role for the brain as an organ of integration. he thinks that humans can continue to live even after all brain function is lost. Cardiopulmonary function should then serve as the sole criterion, and batteries of tests should be oriented toward ascertaining when such functioning is lost. since this determination of death would push death past the threshold where most organs are viable, Truog rejects DDr. he argues that a genuinely biological death concept makes clear that an- other basis is needed for determining when organs can be harvested (Truog and robinson, 2003; Truog and Miller, 2008).Irreversibility RequirementCardiac death requires irreversibility of loss of circulatory function, but current medical protocol involves declaring individuals dead even when their vital functions could be reversed. Rodriguez-Arias et al 11, David Rodriguez-Arias, [Universidad del Pais Vasco/EHU], Maxwell J. Smith [University of Toronto], and Neil M. Lazar [University of Toronto and University Health Network], "Donation After Circulatory Death: Burying the Dead Donor Rule," The American Journal of Bioethics, 11(8), 2011.The patient is not dead at the moment of organ retrieval because the time of circulatory arrest is too short to ensure that cardiac arrest is irreversible. Although this argument is based on an empirical claim regarding the necessary and sufficient time to guarantee that the loss of circulatory function is irreversible, the meaning of irreversible is problematic. While the dictio- nary definition of irreversible refers to some process that is not able to be undone or altered (Oxford Dictionaries), controlled DCD protocols have embraced a weaker con- strual of irreversible, i.e., permanent cessation. As we see, according to this weaker construal, individuals can be declared dead at times where their vital functions could still be reversed. Some have raised the suspicion that the moti- vation to abandon the standard conception of irreversibility in controlled DCD is that the amount of time necessary to prove such irreversibility would be sufficiently long so to damage significantly the other organs [other than the heart], thus making them less useful for transplantation purposes (Menikoff 1998, 158). Downie and colleagues interpreted the term irreversible even further, as will not be reversed without violating the patients decision or the law on con- sent (Downie et al. 2009, 858). However, this interpretation contradicts the idea that irreversible is a condition that does not depend on contingencies such as availability of technical resources or human decisions and conventions.Cardiac Death Without Brain Death Defining death through cessation of cardiac activity is problematic because that does not necessarily mean cessation of brain activity.Rodriguez-Arias et al 11, David Rodriguez-Arias, [Universidad del Pais Vasco/EHU], Maxwell J. Smith [University of Toronto], and Neil M. Lazar [University of Toronto and University Health Network], "Donation After Circulatory Death: Burying the Dead Donor Rule," The American Journal of Bioethics, 11(8), 2011.The patient is not dead at the moment of organ retrieval because brain death is not rigorously demonstrated and can only be assumed in DCD. Another substantial problem is the possibility that a DCD donor could be declared dead even though that per- sons brain may conserve the potential for functioning to some extent. This concern raises the question of the rela- tionship between brain death and circulatory death. In fact, the standard tests used for the determination of brain death are not used in either controlled DCD or uncontrolled DCD. Only a clinical evaluation, without confirmatory tests, is legally required (Institute of Medicine 1999). It has been questioned whether the waiting periods in existing pro- tocols are enough to ensure total brain failurethat the functions of the entire brain are irreversibly lostespecially as DCD may occur in the absence of a prior brain injury (Menikoff 1998). In both DCD protocols, the assumption is that, in the period between cessation of circulatory function and the determination of death, loss of all brain function has also become irreversible (Capron 1999). Advocates of DCD thus claim that those protocols do not violate the DDR be- cause loss of circulation quickly results in irreversible loss of brain function if no attempt to restore cardiac activity is undertaken (Bernat 2010).AT Cardiac Death- GenericThe concept of cardiac death does not square with current medical protocol. Miller and Truog 08, Franklin G. Miller [Department of Bioethics at the National Institutes of Health] and Robert D. Truog [Professor at Harvard Medical School], Rethinking the ethics of vital organ donations, Hastings Center Report, Volume 38, Number 6, November-December 2008, pp. 38-46.The practice of organ donation after cardiac death (DCD)developed in the early 1990s to retrieve organs from dying, hospitalized patients after withdrawal of life supportalso depends on an incoherent determination of death. Under DCD protocols, death is declared typically within two to five minutes of the observed cessation of circulatory function.9 At this point, however, the cessation of circulatory function is not irreversible and thus does not satisfy the standard cardiopulmonary criteria for death. Describing the Pittsburgh protocol for DCD, Robert Arnold and Stuart Younger have stated, "the heart could almost certainly be restarted by medical intervention."10 But as Dan Brock has observed, "The common sense understanding of the irreversibility of death is that it is not possible to restore the life or life functions of the individual, not that they will not in fact be restored only because no attempt will be made to do so."11 The dubious declaration of death is needed to square DCD with the dead donor rule.