Putting Death in Context

Reports of the death of "brain death" have been greatly exaggerated (apologies to Mark Twain). Ever since Henry K. Beecher and the Harvard Ad-Hoc Brain Death Committee came up with brain death criteria in 1968, the nature, status, and definition of death have created problems. In their article on the ethics of "vital organ donations," Franklin G. Miller and Robert D. Truog point to some of these issues, concluding that the concept of brain death as death of the human being is neither coherent nor credible. They offer an alternative account that would allow physicians to remove transplantable organs from patients who have suffered an irreversible coma but fail to meet the criteria for brain death, defined as "the irreversible cessation of all functions of the entire brain." The new justification is necessary, they assert, because the so-called brain dead are "not really dead," and the fiction of brain death offers "only a veneer of protection." Miller and Truog view it as protection to safeguard severely compromised patients from serving as a source of organs for other patients.

It was not always the case. As the first legal case involving brain death makes clear, the protection was not developed for patients but for surgeons and for the medical examiner who made the "dead body" available as a source of tissue. It protected the transplant enterprise. This point was not lost on the family members of Bruce O. Tucker, a middle-aged African American man who, in an accident in 1968, sustained serious head injuries and was transported to the Richmond hospital, where surgeons at the Medical College of Virginia had been waiting for an appropriate candidate from whom to remove a heart and place it in the body of someone whose heart was failing. On May 25, 1968, they identified Tucker as a likely source. Once he was declared dead using neurological criteria, Tucker was quickly pronounced "unclaimed dead," and in violation of Virginia law, which required a twenty-four-hour waiting period for friends or families to claim a body, his heart and kidneys were removed. Joseph Klett, a retired white executive, received Tucker's heart and lived for seven days with the organ.

Tucker's family did not hear about the heart transplant from the doctors or the hospital; they learned from an undertaker that the organs had been removed. William Tucker retained the legal services of L. Douglas Wilder, a young African American lawyer, and brought suit against the surgeons and the state medical examiner. From the start, Wilder insisted that Tucker's race and socioeconomic circumstances made him vulnerable for organ removal.

Tucker's experience resonated uneasily with reports from Capetown, South Africa, where surgeon Christiaan Barnard removed the hearts of black South Africans and placed them in the bodies of white recipients. It perhaps came as little surprise to the Tucker family when they did not prevail in their lawsuit. In 1972, the jury in Tucker v. Lower ruled that the physicians were justified in relying on evidence about the brain to determine death. It did little to reassure vulnerable patients and their families that this was a safeguard for severely compromised hospital patients.

There is a cost, Miller and Truog maintain, in basing a system on dubious and incoherent claims. The deleterious effects on professional integrity from having to maintain the fiction of brain death in order to get patients and families to donate organs matters. It seems reasonable that physicians would benefit from a more coherent and defensible ethical account of vital organ donation.

What are the benefits for the public and for patients? If the proposal prompts greater transparency about the nature and circumstances of organ removal, organ donation, and the conventions that physicians use in making determinations about viable organs from dead bodies, it would benefit patients and the public. Indeed, perhaps both physicians and bioethicists would be gratified to learn that members of the public need not be resolutely protected from some of the more grisly details about the paradoxical need for "both a living human body and a dead donor." As the early experience with organ and tissue transplantation...