Persons, Humanity, and the Definition of Death

1. Establishment of the Biological Paradigm

Establishment of the Biological Paradigm chapter one Before presenting my arguments for challenging the biological paradigm, I shall examine whether and to what extent the assumptions in the paradigm were made in the early work on defining death, when neurological criteria for death were first introduced . While it might be claimed that these assumptions were accepted long before the modern discussion of the definition and criteria of death, there is no evidence for such a claim. Indeed, I believe human death has always been understood as a metaphysical, ethical, and cultural phenomenon as fundamentally as it was understood as a biological phenomenon. The emphasis on the biological aspects of death over its metaphysical, ethical, and cultural aspects in arriving at a definition of death is a modern invention. How did the “paradigm” come to be established? The modern challenge to articulate a definition and criteria of death was instigated by advances in medical technology and organ transplantation in the early 1950s and 1960s.1 In the 1950s, the increased use of ventilators created clinical situations in which the patient’s heart would beat spontaneously, but the patient had no discernible brain activity and respiration was mechanically sustained. To some, it seemed that these patients were more dead than alive. If so, the traditional criterion of determining death on the basis of cessation of circulation and respiration was inadequate. These cases also raised the issue of whether the death of the person had to necessarily coincide with the death of the human organism. As in Locke’s hypothetical case of the prince and cobbler switching bodies (Locke [1694] 1975, bk. II, ch. 27, para. 15), in which the life history of the person could diverge from the life history of the human organism, some people regarded these clinical situations as actual cases in which the life histories of the person and human organism diverged. These cases also raised the issue of what it is that literally dies. Do persons, understood as in some sense distinct from human organisms, “die”? Or is death something that can only be literally predicated to human organisms or to persons understood as identical to human organisms, as assumed in the biological paradigm? In the 1960s, advances in organ transplantation techniques and some unusual legal cases provided additional impetus to rethinking the legal definition of death. Since organ transplantation requires well-preserved organs and is facilitated by removing organs from the donor as soon as possible, there was interest in declaring death at the earliest possible moment. Adopting a neurological or brain-based criterion for determining death would enable death to be declared earlier in some clinical situations. The unusual legal cases included one in New York in which a woman was assaulted , became comatose, and required ventilator support. When a physician later removed her from the ventilator, the person accused of the assault argued that the doctor’s action, not the assault, caused the woman’s death. The physician argued that the woman was already dead when he shut down the ventilator (Beauchamp and Perlin 1978, 3). A second case, in Virginia, involved a laborer who fell and suffered a massive head injury on May 24, 1968. After undergoing surgery, the patient, Bruce Tucker, was placed on a ventilator. He had a flat electroencephalograph “with occasional artifact.” An organ transplantation team later removed Tucker’s heart. The surgeons argued that Tucker had died, even though Virginia law at the time defined death as “a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereto such as respiration and pulsation.” In a suit brought by Tucker’s family challenging the surgeons’ action, the Virginia court found that the surgeons were not guilty of wrongful death of the decedent. This was interpreted by some as the court’s endorsement of a neurological criterion for determining death (Veatch 1972, 1978). In 1967/68, under the leadership of Henry Beecher, the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death (1968) proposed “irreversible coma” (a permanently nonfunctioning brain) as a new criterion of death. This committee was extremely influential in promoting adoption of a neurological criterion for death and establishment of the medical paradigm for the definition of death. As Martin Pernick (1999, 13–14) points out, Beecher thought that the matter of defining death should be left in medical hands and that philosophers, in particular...