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  • Brain Death and Organ Removal:Revisiting a High-Stakes Question1
  • Bernard N. Schumacher

The irreversible cessation of all brain activity as a criterion for death, including that of the brain stem, was suggested in 1968 by the now famous report of an ad hoc committee at Harvard Medical School. For several years now, this criterion has once again been the object of rather well-publicized critical reflection, chiefly in the Anglo-Saxon world and, more recently, in the German-speaking world. The German philosopher Ralf Stoecker has even gone so far as to assert, during his March 21, 2012, speech to the German Ethical Council (Deutscher Ethikrat): “To my knowledge there is no convincing argument for the validity of the concept of brain death, today even less than in 1997,”2 the year in which Germany authorized the removal of organs from a human being whose death had been certified according to this cerebral criterion. In opposition to those who say that medical science has succeeded in proving the appropriateness of the brain-death criterion, he concluded that “recourse to the concept of brain death today, moreover, is no longer sufficient to determine whether or not it is permissible to remove organs.”3 He [End Page 1239] therefore considers the debate about brain death “useless.”4

His position is not an isolated case. It is along the same lines as the stance taken by a number of Anglo-Saxon physicians, legal scholars, and philosophers who have expressed serious doubts as to the legitimacy of the brain-death criterion. “No plausible and coherent account has been advanced to explain why brain-dead patients are dead,”5 the American bioethicist Franklin G. Miller had explained three years earlier, following his colleague Robert D. Truog, who thinks that “the concept of brain death is seriously problematic.”6 The American philosopher Don Marquis ratchets up the rhetoric: “The orthodox legal definition of death is indefensible.”7 Brain death is likewise described by the American bioethicist Robert M. Veatch as being “old-fashioned” and “less and less plausible,”8 all the more so because, as the American physician Ari Joffe notes, “When one examines the rationale for BD being death itself, it is surprisingly hard to justify.”9

This school of thought denounces the fact that the brain-death criterion was implemented in order to correspond to actual praxis. It is said to be, in the final analysis, a “legal fiction”10 or “convenient”11 [End Page 1240] along the lines of what the German philosopher Dieter Birnbacher very recently described as a psychological “strategy of suppression”12 or, as the German legal scholar Wolfgang Höfling put it, an “illusory self-deception.”13 The American physician Robert Taylor points out the fact that we know perfectly well that persons who are declared brain dead are actually alive but that we want to consider them dead. The criterion of brain death, these thinkers say, is ultimately a societal construct and not a truth based on reason and science.14

These authors wish to break the taboo that surrounds any questioning of the brain-death criterion. The refusal to take into consideration even the hypothetical possibility of an error in this regard was illustrated by recent medical-ethical guidelines issued by the Swiss Academy of Medical Sciences (Académie suisse des Sciences médicales, or ASSM) with regard to the “Diagnosis of death in the context of organ transplantation.”15

Why this silence and refusal even to reargue the legitimacy of the brain-death criterion? If we were to find that it was wrong (i.e. [End Page 1241] illegitimate), people often say, it would have disastrous implications for the removal and transplantation of vital organs at a time when we see an ever-increasing shortage of donors. On the other hand, the continuation of this practice would be tantamount to approval of putting living persons to death and, in the final analysis, of using them only as means to an end for the benefit of other persons—or to quote the very telling image of the German philosopher Hans Jonas, approval of engaging in the “vivisection”16 of a person under...