November 1979 I/3
DEFINITION OF DEATH LEGISLATION: AN ETHICAL ANALYSIS
I. Since 1970, twenty-five states have passed definition of death laws. The laws differ from state to state but, in general, they allow a physician to declare that human death has occurred when the clinical signs of irreversible and complete cessation of total brain functions are present and respiration and circulation are maintained artificially. The main reasons for this legislation are to dispose for successful organ transplants and to protect physicians from irresponsible malpractice litigation.
In Missouri, several unsuccessful attempts have been made to pass a definition of death law. Do we need such a law in Missouri?
II. In order to analyze the situation thoroughly, several things must be kept in mind:
1. The term "definition of death" legislation is a misnomer. What we are concerned with is the legal right for a physician to make a declaration of death from signs associated with complete and irreversible cessation of brain functions.
2. There are two distinct questions involved:
a. Are there a set of signs, medically substantiated, which can be utilized to declare that human death has occurred, when the traditional signs (irreversible cessation of spontaneous respiration and circulation) cannot be discerned because a respirator is utilized? This question, to be answered primarily by physicians but with the help of philosophers, has been answered in the affirmative.(2)
b. Should physicians be given the legal right to utilize the signs in question, usually referred to as the brain death syndrome, when declaring the fact of human death? This is a question to be answered by legislators, having consulted physicians, others in the profession of health care, and those who might be affected by such legislation.
3. Declaring human death from the signs associated with brain death syndrome presupposes that a respirator is in use and that the traditional clinical signs of human death (i.e., irreversible cessation of spontaneous functions of heart and lungs) are not observable.(3) However, the declaration of human death from the signs of brain death implies that the more traditional signs of human death would soon appear if the respirator were removed.
4. From a medical point of view, the signs utilized to determine that human death has occurred should be:
clear - that is, not ambiguous, not dependent upon mere opinion, and in accord with the known physiology of the living human person.
certain -that is, taken together, the signs must give conclusive proof of human death: the dying person muct be givent the benefit of any doubt.
irreversible -that is, medical experience and documentation must testify conclusively that people (the bodily remains of people) in this condition do not regain the signs of human life.
5. Some physicians and philosophers maintain that human death occurs if there are certain signs that only partial brain death (dysfunction of the cerebral cortex only) has occurred.(4) Whether this is a sufficient sign of human death is not at question here. The legislation enacted in the various states has not sought to approve the declaration of death utilizing signs of partial brain death. Rather, this legislation seeks to recognize signs of total brain death; that is, signs which indicate that a complete and irreversible cessation of all brain functions has occurred.(5) With this in mind, the set of signs utilized by physicians, and the language of the legislation, must be signs and language which indicate that human death already has occurred, not that it will occur shortly if the same signs perdure. While this point is disputed by some, it seems that the safer methodology should be followed in this most serious of human decisions.(6)
6. In general, legislation should not be enacted unless it promotes or enforces ethical obligations or rights which would not otherwise be observed sufficiently. In order to discuss the need for legal recognition of the brain death syndrome then, we must delineate the major ethical obligations and rights involved in this issue. They seem to be:
a. one should not declare that a person has died unless there are clear, certain, and irreversible signs that the lifegiving principle (often called the soul) no longer informs (enlivens and organizes) the remains of the human person in question.
b. one should treat the remains of a human person with respect.
c. one should be willing to enhance life for other people provided the action does not violate other serious ethical obligations. Usually then, one should be willing to allow one's vital organs to be transplanted to another person after death.
d. one should be able to practice medicine and offer health care without fear of irresponsible malpractice accusations and litigation.
III. In theory, the above ethical rights could be respected, and the above obligations could be fulfilled, without a state law. But given the particular circumstances that exist in Missouri, will these rights and obligations actually be respected, or do we need a state law in order to enhance, promote, and/or guarantee fulfillment of these major rights and obligations? This is the question that the legislature should answer, with the help of physicians, of other health care professionals, and of other interested citizens.
Whatever the extrinsic political issues that might be involved, the ethical issues outlined above should be the focal point in passing or rejecting brain death legislation.
Kevin O'Rourke, OP
1. Cassell, Eric and Kass, Leon, et al, "Refinements in Criteria for the Determination of Death: An Appraisal," Journal of the American Medical Association 221 (1972):48-53.
2. Biorck, G., "On the Definition of Death," World Medical Journal, (Sept,1967): 137-139.
3. cf. Respect Life Report for state legislation, Vol.2, n.8, Oct.1979; n.5, May, 1979; n.3, March 1979.
4. Rizzo, Robert; Yonder, Paul, "Definition and Criteria of Clinical Death," Linacre Quarterly, 40 (1973): 223-233; DeMere McCarthy, "Hearing Before the Missouri Senate Select Committee on the Definition of Death," Sept. 10, 1976.
5. cf. footnote 3.
6. Byrne, Paul; O'Reilly, Sean; and Quay, Paul, SJ, "Brain Death: An Opposing Viewpoint," Journal of the American Medical Association, Nov. 2, 1979, (242) n.18, p.1985-1990.
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