The President’s Council on Bioethics: White Paper on Brain Death

E. Christian Brugger, D.Phil.

  In December 2008, the President’s Council on Bioethics (PCBE) published a long awaited White Paper (WP) on brain death entitled Controversies in the Determination of Death¹. A draft of the paper had been narrowly circulated in 2007 and received considerable criticism from one of the leading opponents of the accepted neurological definition for human death, D. Alan Shewmon, Professor of pediatric neurology at UCLA Medical Center.  The effort that the WP spends directly addressing Shewmon’s criticisms shows how significant the PCBE thought his arguments were.

  The WP has seven chapters.  The first outlines a history of the neurological criteria for determining death and then states the specific aims of the report: 1) to educate the public, 2) to address current challenges to the neurological standard (in particular the Shewmon argument), and 3) to discuss problems raised by the pressing need for organ donation.  The first chapter also formulates the WP’s overarching question: whether patients who suffer “whole brain death” are in fact dead.  Chapter two suggests that since using the word “death” in “brain death” can prejudice the overarching question of the report, the term “brain death” should be set aside.  It suggests as an alternative the more neutral term “total brain failure” (TBF).  Chapter three discusses terms of a scientific and physiological nature that the report thinks crucial for properly engaging the salient issues in the controversy over brain death.  Chapter four, the heart of the report, addresses the central question of whether patients diagnosed with TBF are in fact dead.  The chapter formulates two opposing arguments. The first, ultimately rejected in the report, states that because the bodies of brain dead patients can exhibit a relatively high degree of integrative activity, there are “sufficient grounds” for doubting that the patients are dead.  So although we cannot be certain that they are still alive, they ought to be treated as living human beings, albeit highly disabled ones.  The second position, adopted in the report, argues in favor of the common neurological criteria, but argues that the older rationale justifying it needs to be set aside.  In its place the report proposes a defense of brain death as human death based on the fact that bodies that have suffered TBF have ceased the “vital work of an organism.”  Chapter five discusses implications of each position for public policy and clinical practice.  Chapter six considers a possible alternative for organ procurement in the light of position one, namely, the practice of “controlled donation after cardiac death” (controlled DCD).  Finally, chapter seven summarizes the paper’s conclusions.

  The two positions of chapter four

  The first position outlined in the WP is Shewmon’s.  A good summary can be found in Shewmon’s influential 2001 essay in the Journal of Medicine and Philosophy, “The Brain and Somatic Integration: Insights Into the Standard Rationale for Equating ‘Brain Death’ With Death.”²  

  The WP states that older defenses of the neurological criteria held that to be a living organism—including a human organism—an entity had to be a living whole.³   So life at the level of the cell, or disparate expressions in organ systems, is not of itself sufficient to conclude that an organism is alive.  Death therefore should be not be equated with total cell necrosis, but rather with the point at which animate activity ceases at the level of the whole.  The brain was believed to be the organ responsible for integrating the vast array of living bodily activities such that if the brain was irreversibly and totally destroyed, the organism would literally dis-integrate.

  Shewmon provided evidence to the PCBE that showed there was no necessary connection between brain activity and multiple expressions of integrative bodily activity.  He set forth startling examples where the bodies of patients reliably diagnosed with TBF were shown to maintain homeostasis, fight infections and foreign bodies, eliminate, detoxify and recycle cell waste throughout the body, undergo respiration, assimilate nutrients, maintain body temperature, grow proportionately, heal wounds, exhibit cardiovascular and hormonal stress responses to unanesthetized surgical incision, gestate fetuses, and undergo puberty.⁴   In light of this, Shewmon concludes that the brain is not the master organ of integration in the body.  It was not responsible for conferring somatic unity.  Rather, the brain mediates integrative functions that are “modulatory and future survival-enhancing” of a living organism. 

  Faced with Shewmon’s evidence, the WP was forced to abandon its “reliance on the concept ‘integration’ … and with it the false assumption that the brain is the ‘integrator’ of vital functions”.⁵  But the report does not abandon its defense of a neurological criteria for death.  It sets out what it thinks to be “a more compelling account of wholeness” to support “the intuition” that a body that’s suffered TBF is no longer a whole organism.⁶  It says that all living organisms carry out a “fundamental vital work”.⁷   If an organism ceases to carry out this work, it is dead.  So reliable expressions of the cessation of an organism’s vital work would be reliable indicators of organismic death.  The vital work is self-preservation.  And self preservation manifests itself at the somatic level in expressions of a dynamic interaction with the outside world.  A living organism, even a most disabled one, expresses the need for life sustaining resources like oxygenated air by reaching out to the surrounding environment to secure its needs.  This ‘reaching out’ presupposes three capacities: 1) to receive signals and stimuli from the surrounding environment; 2) to act upon that environment to secure sustenance, most particularly in the activity of spontaneous breathing; and 3) to experience (not necessarily consciously) the inner need that drives the organism to act to secure its needs—that moves it to breath spontaneously.⁸

  Applying these criteria to the body of a brain dead patient, the report concludes that since none of the expressions can be identified we are justified in concluding the patient is dead.  The body of such a patient will sense no inner need for sustenance and so express no drive to interact with the surrounding environment—will make no attempt to breathe.  The somatic activity of the brain dead patient can only be sustained with ventilator support.  Spontaneous breathing then is the paramount expression that human organismic life persists. 

  What then of the multiple expressions of somatic integrative unity exhibited by some ventilator-dependent brain dead bodies?  The report concludes that these should not be seen as expressions of organismic life.  Rather, they are merely “artifacts” of the breathing machine that mask the fact that death has occurred.⁹
  Questions for the White Paper

    The WP’s concept of the “vital work” of a living organism is elegant and persuasive.  A couple of questions however can be raised as to why the concept necessarily leads to the conclusion that TBF patients are dead.  First, cannot some of the expressions of apparently living somatic activity in brain dead bodies be categorized as expressions of this three fold commerce with the world?  Are not homeostasis, oxygen assimilation, would healing, the fighting of infections and the process of nutrition activities in which a body receives complex signals, and then responds by securing needed resources?  Second, how can we be certain that the bodies of brain dead patients experience no felt need for oxygen?  Does not the evidence warrant no more than the conclusion that the body’s incapacitations prevent it from responding to that need?  We know that patients with apneic conditions can be very much alive, even conscious, but are completely unresponsive to CO2 build up in the body and exhibit no expressed drive to breath spontaneously.  Using the WP’s definition for living organisms—which conscious patients, it admits, necessarily are—their bodies must experience the need for oxygen exchange and have the drive to act but be impeded from acting because of pathology.  It seems that the WP still has questions to answer to justify the use of its new argument in defense of the established neurological standard.

¹President’s Council on Bioethics, Controversies in the Determination of Death (December 2008); available at www.bioethics.gov.
²See Journal of Medicine and Philosophy, vol 26, no. 5, (2001), 457-478
³PCBE, White Paper, 59.
⁴Shewmon reviews some of this evidence in The Brain and Somatic Integration, 467-468.
⁵Ibid., 60.
⁶Ibid., 60.
⁷Ibid.
⁸Ibid., 61-62.
⁹Ibid., 21.