In the face of an ever-emerging “culture of death,” the ancient truth that death is a mystery and not a “problem” is needed more than ever. To designate death as a problem implicitly suggests a need for a remedy, which underlines the modern assumption of possession of the resources necessary to exercise technical mastery over the “problem”—in this case, death. The predominance of the technical solution over the respectful awe rightly due in the face of something greater than us puts mankind in quite a predicament.
The Church, as Pope John Paul II attentively reminded us in Redemptor Hominis, is the guardian of transcendence. This image of the Church is particular fitting in dealing with complex ethical questions of life and death. In recent times, the very mystery of death—real death—has been debated extensively as it relates to the theory of “brain death,” which is effectively interrelated to ethical questions regarding organ donation.
Catholics see death in the light of divine revelation. Death, the fruit of original sin, now exists as the means by which we participate in the Passover of Our Lord, passing from death into new life. Death is not the end of our human existence; to say otherwise would be an embrace of the fallacious pagan trap of modern philosophical thought overflowing with agnostic existential anxiety over this very unsettling question.
Since the Christian tradition affirms the unity of the person as body and soul, death is best defined as the loss of the principle of integration between the body and the life-principle (the soul); concisely, the separation of body and soul leading to disintegration and decomposition is death. Pope John Paul II noted this in his Letter to the Pontifical Academy of Sciences:
Within the horizon of Christian anthropology, it is well known that the moment of death for each person consists in the definitive loss of the constitutive unity of body and spirit. Each human being, in fact, is alive precisely insofar as he or she is “corpore et anima unus” (Gaudium et Spes, 14), and he or she remains so for as long as this substantial unity-in-totality subsists. In the light of this anthropological truth, it is clear…that “the death of the person, understood in this primary sense, is an event which no scientific technique or empirical method can identify directly.”
The point of the Holy Father could not be more relevant given the fact that the criteria used to determine death has changed significantly over time as knowledge in the sciences, particularly human physiology, and medical technology have advanced. Death used to be declared upon the cessation of vital bodily functions, primarily breathing and a heartbeat, but once we began to resuscitate the dying who had ceased to breathe or whose heart had stopped, it was clearly that we could no longer rely on such antiquated, but nonetheless, commonsense standards. These advances quite naturally required legal and medical professions to adapt. However, revisions in law and medical protocol have not been uniform. Given these facts there is a continuing and urgent need to explore what “brain death” is, how or when a human person can be declared dead, and how and if the definition of death can inform such determinations of death.
In truth there is, even facing the mystery of death, a legitimate technical dimension that must be developed and explored. Organ donation is a good insofar that it adheres to the most rigorous standards of ethical conduct. (1) There must be informed consent given by the donor or the proper legal designee. (2) In the case of non-vital organ donation, physical and mental risks that might be incurred by the donor must be proportionate to the good sought on behalf of the recipient in addition to the donor being informed in advanced. (3) In the case of postmortem organ donation, it is absolutely necessary to be certain that the donor is truly dead prior to transplantation—it is never acceptable to kill directly, even to save the life of another—and we have but a clouded, imperfect vision of these things, which further complicates organ donation in this regard.
It is particularly necessary to avoid a radical dualism of body and soul—which is particularly relevant in the question of “brain death”— for God looks down on all, even those in a persistent vegetative state. Science itself cannot directly verify the event of death. Theology and philosophy ultimately provide the context for understanding the mystery of death, in this instance, aiding science. This is a unique challenge in the dialogue of faith and reason. Reason need not be reduced to technical reason. Therefore theology should not be cast off as irrational belief as it has the indispensable role of setting limits to what may be properly embraced both in theory and in practice. Through the dialogue of various academic disciplines we may reach a proper definition of death (including “brain death”) that is consistent with theologically and philosophical knowable truths about man, human dignity, applicable in a clinical setting, and clearly articulated as to be enforced strictly by the law.
The question of death arises quite naturally in consideration of organ donation. Vital organs include the heart, liver, lungs, kidneys and pancreas. Certainly some vital organs can be removed without causing the donor’s death, for example, one of two kidneys, or a lobe of a liver or lung and such practice is legitimate in the presence of moral norms.
The difficulty revolves more around vital organs necessary to sustain life. In order to be suitable for transplant, they need to be removed from the donor before respiration and circulation cease otherwise these organs would not be suitable for donation. The heart, for example, is the most sensitive organ in the human body to deteriorate from a lack of oxygen. Once breathing and circulation ceases, in five minutes or less, the heart is so damaged that it becomes medically worthless. The sense of urgency is real. However, it is manifestly euthanasia to remove vital organs from a living person prior to the end of blood circulation and respiration because it will quite obviously cause the donor’s death.
During a heart transplant procedure, extreme care must be taken to protect the heart from damage while extracting it from the donor. Surgeons literally have only minutes to remove the heart from the donor and into the waiting recipient. Typically a surgeon removes a beating heart or stops the beating heart just before lifting it out of the donor’s chest. Obviously the vital organs of a dead person are of no use and taking the heart of a living person is murder. How is vital organ donation possible then? Brain Death.
Prior to 1968, a person was determined to be dead with the end of certain bodily functions, especially respiration and heartbeat. In 1967, the first official heart transplant took place in South Africa. There were a total of 150 hearts transplants between 1967 and 1968. This scientific “advancement” stood a number of ethical obstacles of justification, particularly harvesting vital organs from living persons for transplants. Since the organs of a dead person are medically worthless, expanding the definition of death to include “brain death” legitimized the practice of removing vital organs from living comatose patients who are actually alive and therefore whose organs are usable. The desire to make heart transplants both legal and morally acceptable, quite arguably, was the political motive in the development of “brain death” theory.
In 1968, an ad hoc committee was formed at Harvard University for the purpose of redefining death so that vital organs could be removed from “brain dead” patients. The Harvard committee did not determine, by application of the scientific method, if an irreversible coma was an appropriate criterion for death. Rather, its mission was to see that it was established as a new criterion for death. In short, the report was made to fit predetermined conclusions. Missing from the Harvard Committee’s report were the most basic scientific studies, patient data, and references, as well as response to numerous objections to the claim that “brain death” is true death.
The conversion of “comatose” into “dead” was first accomplished with the publication of the Harvard Criteria. The change is obviously based on a falsehood. It is a truism that only someone alive can be in a coma, even when the condition is said to be “irreversible.” Neither the term “coma” nor phrase “comatose state” can be applied to the dead. Following a utilitarian line of reasoning, however, if people cannot be declared dead by the old rules, but can be (using “brain death”) declared so under new rules, the result is an increase in available organs for donation.
The conclusions of the Harvard committee could not be more disastrous on a number of levels. The Harvard criterion of “brain death” led to a number of changes in federal and state laws in the U.S and around the world. In the ten years succeeding the committee’s report more than thirty different sets of criteria for “brain death” were adopted in the United States and elsewhere. Many more criterions have been published since. The resultant intellectual schizophrenia on this issue could not be more staggering. In practice this has meant that one can be declared “brain dead” by one set of criteria, but alive by another or perhaps all others; in other words, one could be declared dead in one state and alive in another. This quandary has persisted to the present. In the January 2008 edition of Neurology, it was reported that there is no consensus about which of the hundreds of disparate sets of criteria should be used to declare a person “brain dead.” The pro-life author warned that Western society is reaching a point, if it is not already there, where the moment of death will be determined not by objective bodily changes but rather the philosophy of personhood by those in power.
Another disconcerting matter is that every set of criteria for “brain death” includes an apnea test (“apnea” means absence of breathing). Some pro-life medical professionals are concerned that this test has no benefit to the patient and perhaps exacerbates the patient’s already compromised condition. When a patient is on a life-supporting respirator, turning off the ventilator to see if they can breathe on their own becomes comparable to choking or suffocating the person in question. The resulting accumulation of carbon dioxide in the body can cause further damage to the person. The apnea test, during which the ventilator is turned off for up to 10 minutes until the carbon dioxide goes to 60 or higher (normal is 35-45) can induce a decrease in blood pressure or cardiac arrest. The sole purpose of the apnea test is to determine the patient’s ability to breath on his own in order to declare him or her “brain dead.” If the patient does not breathe on his or her own, this becomes the signal not to stop the ventilator, but to continue the ventilator until a recipient is ready to receive a necessary organ from the patient who, perhaps unknowingly, just then became a vital organ donor.
If those who make this claim (there are a number of pro-life scientists, medical professionals, and ethicists who agree with the moral concerns surrounding vital organ donations but also believe that the apnea test does not have a negative affect on the patient and this assessment by a number of concerned pro-life advocates is inaccurate) are correct it is immoral to perform a stressful, possibly lethal, apnea test. To turn off the ventilator for up to ten minutes as part of the declaration of “brain death” risks further damage and even killing a comatose patient who may otherwise survive.
Even if one were not to consider the apnea test, there are a host of other moral problems. According to Dr. Hargroder, a pro-life transplant surgeon (who does not participate in vital organ donations) and Fr. Joseph Howard, a medical ethicist, both participating in an end of life conference this past March (that I personally attended) in agreement concluded that it is generally no longer required for physicians to fulfill any of the numerous disparate sets of criteria to determine “brain death” to get organs.
Due to advances in science and technology and the use of artificial means to keep brain-injured patients alive, determining complete absence of brain wave activity becomes more complex. “Brain death,” in legal terms, is the irreversible end of all brain activity (including involuntary activity necessary to sustain life). Irreversible destruction to the brain-stem is characteristic of such an alleged condition as a person is no longer capable of sustaining the rest of the body’s systems without advanced life support. This should not be confused with a persistent vegetative state—a condition of patients with severe brain damage who are in a coma, but have progressed to a state of wakefulness without detectable awareness; this sometimes includes permanent, irreversible neurological dysfunction. But to determine the difference between these is rather difficult; it has been noted that brain electrical activity can stop completely, or perhaps, it simply drop to such a low level it is undetectable by most medical equipment. An EEG will therefore be flat, though this is observed during deep anesthesia or cardiac arrest though the patient is not truly dead. Strangely, an EEG is not legally required in the U.S. to certify death, though it is considered to have confirmatory value.
At a moment’s reflection the cognitive dissonance required to hold “brain death” as real death is incredible. There is an irrevocable difference between the body of a truly dead person and the body of a person declared to be “brain dead.” The body of a truly dead person is characterized in terms of disintegration and putrefaction. There is an absence of vital body functions and the destruction of the organs of the vital systems—the dead body is cold, stiff and unresponsive to all stimuli. In contrast, the body of a “brain dead” patient is warm and flexible; there is a beating heart, normal color, temperature, and blood pressure. Most functions continue, including digestion, excretion, and maintenance of fluid balance with normal urine output. There is often a response to surgical incisions. Given a long enough period of observation, someone declared “brain dead” will show healing and growth, and will go through puberty if they are a child.
Quite clearly “brain death” does not constitute real death. It is a self-evident truth that life and death cannot exist at the same time within the same person. Yet advocates of “brain death” conveniently fail to answer a number of questions, such as:
- Why is it (though it is no real surprise) health insurance covers the intensive costs for “brain dead” patients just as they do for living patients? If the patients’ organs are suitable for transplantation, any transfer of the patients to another hospital is covered by insurance. Insurance also covers the cost of life support, blood transfusions, antibiotics and other medications needed to maintain organs in a healthy state. This also applies to “brain dead” patients to be used in medical teaching facilities. Do dead people need medical insurance?
- Why do “brain dead” patients often receive intravenous fluids, antibiotics, ventilator care, and other life support measures? And how does a corpse process these things if the person is truly dead?
- How is it there have been cases of women who have sustained serious head injuries, been declared “brain dead,” and have given birth to a healthy child? In the longest recorded instance, the child was carried for 107 days before delivery. It is a truism that dead women do not bear new life.
- Why during the excision of vital organs do doctors find the need to use anesthesia and paralyzing drugs to control muscle spasms, blood pressure and heart rate changes, and other bodily protective mechanisms common in living patients? In normal medical practice, a patient’s reaction to a surgical incision will indicate to the anesthesiologist that the anesthetic is too light. This increase in heart rate and blood pressure are reactions to pain. Anesthetics are used to take away pain, but obviously a corpse does not feel pain.
The need to answer these questions is quite pressing. Most organ donation for organ transplantation is done in the setting of “brain death” and if the science is wrong (it is; “brain death” is pseudoscience) patients are being regularly euthanized. In some countries (e.g., Belgium, Poland, Portugal and France) everyone is automatically an organ donor, although some jurisdictions (such as Singapore, France, and New Zealand) allow opting out of the system.
The lobbying arm of the transplantation of the organs industry is so powerful that it has already obtained the approval of 40 states to declare that unless you officially refuse the use of our organs, you are automatically tested to determine suitably as an organ donor, which is carried out if consent is given by family or the legal designee who has medical power of attorney. Currently in New York legislation is pending to give hospitals “presumed consent” that everyone is an organ donor unless they or a legal designee explicitly say otherwise; in other words, an opt-out rather than an opt-in.
Another example of the complicated and troubling relationship between statutes governing “brain death” can be found in Virginia. The state recently streamlined the requirements for declaring a patient “brain dead.” The law previously required two physicians to make a determination that “brain death” has in fact occurred and one of the two has to be a specialist “in the field of neurology, neurosurgery, or electroencephalography.” The new law changes that by adding “critical care” to the list of specialists who can make a determination of “brain death.”
The obvious problem with the new law is that neither of the physicians has to have any expertise in anything related to neurology. That means erroneous determinations of “brain death” are a virtual certainty—this was the very reaction of medical experts quoted in a 2006 article published in The Star-Ledger when New Jersey was considering even more drastic changes in the personnel allowed to make a determination of “brain death” and dropping the requirement for two physicians. Medical professionals were concerned about dropping the requirements for specialists related to neurology being involved in the determination for obvious reasons. There have been a lieu of cases in recent decades where prospective donors have awakened minutes before their organs were extracted. After all, virtually everyone has heard relatively rare but astounding stories about people who were wheeled into the morgue only to sit up and ask for a drink of water. Hundreds of articles have been written on this subject and they are still coming.
A case study was reported in the Journal of Critical Care Medicine involving a patient with Guillain-Barr Syndrome who was thought to be “brain dead.” Fortunately, after more testing, the patient was found to have EEG (brain wave) function and in the end, actually got better. In June 2008, there was a case of a 45 year old man in France who was declared “brain dead” after a heart attack. According to a report by the Paris University’s hospital’s ethics committee when the surgeons began operating on the donor to remove his organs, he began to breathe, his pupils became responsive, and he reacted to pain. Several weeks later the patient was walking and talking. The operation had it occurred would have unmistakably been a form of involuntary euthanasia; quite obviously no donor recovers after his vital organs including a beating heart are excised.
It seems obvious that extending the incredible task of making “brain death” determinations to those lacking sufficient knowledge of neurology is absurd. So why is there this push?
- Perhaps unlike other specialists in brain-related areas, critical care specialists are readily available in an emergency room and probably the ICU. This means that a determination of “brain death” can be made more quickly, freeing up a room, and getting any organ donation request more quickly.
- Or given the careless usage of the term “brain death” regarding people who clearly were not as evident in high-profile cases, it is clear that at least have little concern about erroneously labeling someone as “brain dead” if they think the person doesn’t have much of a chance of a “meaningful” recovery.
This problem, by no stretch of the imagination, is simply a matter of failure regarding public policymakers. The prestigious and influential Kennedy Institute Journal of Ethics devoted an entire issue to discussing the ethical issues surrounding death and organ donation. Some ethicists suggested expanding donation beyond brain death and non-heartbeating organ donation (NHBD) by redefining death and providing exceptions to the dead donor rule! One “ethicist” even stated, “A patient, while still competent, may choose to have organs removed prior to death, through an advance directive.” In other words, the so-called “right to die” via physician assisted suicide should be extended to those who wish to sacrifice their lives for the purpose of organ donation. Some of the ethicists also cited an Ohio poll showing widespread public confusion over whether terms like “brain death,” “vegetative state” and “coma” described a living or dead person as an opportunity to change the rules about organ donation. This is manifestly what C.S. Lewis called the growing trend of verbicide.
This inhumane, evil line of logic does not simply victimize though at the end of life, but those at the dawn of life as well. The Council on Ethical and Judicial Affairs of the American Medical Association (E-J Council AMA) in 1988 concluded that it is “ethically acceptable” to use organs from anencephalic neonates only after they have died. In 1994 the council reversed its position stating that it is ethically acceptable to transplant the organs of anencephalic infants even before they die. The rationale for the reversal, while noting that what they advocate is illegal in most jurisdictions, was unbelievably utilitarian in nature:
- A shortage of organs available for transplant in infants and young children.
- Anencephalic neonates lack functioning cerebral hemispheres and never experience any degree of consciousness.
- The benefits of such transplants will be saving other young from death and many others will realize a substantial improvement in their quality of life.
- Grieving parents of an anencephalic child can find some meaning in their tragedy by allowing another child to benefit from a transplant.
The philosophy that inspires the practice is based on the error that man is an end to himself and the sole maker with supreme control of his own destiny. This utilitarian ethic ought to be rejected. The marketing and harvesting of organs has become a lucrative billion dollar international business. The monetary income to both surgeons and hospitals are enormous, providing strong incentives to compromise ethical norms for financial gain.
Despite its numerous ethical challenges, Pope John Paul II was an advocate of organ donation as was made clear on several occasions.
The Gospel of life is to be celebrated above all in daily living, which should be filled with self-giving love for others. . . . Over and above such outstanding moments, there is an everyday heroism, made up of gestures of sharing, big or small, which build up an authentic culture of life. A particularly praiseworthy example of such gestures is the donation of organs, performed in an ethically acceptable manner, with a view to offering a chance of health and even of life itself to the sick who sometimes have no other hope (Evangelium Vitae, 86).
However the late Roman Pontiff was a tentative supporter of “brain death” and organ donation. In his address to the 18th International Congress of the Transplantation Society, Pope John Paul II said:
Vital organs which occur singly in the body can be removed only after death…that is from the body of someone who is certainly dead…the Church does not make technical decisions…here it can be said that the criterion adopted in more recent times…namely the irreversible cessation of all brain activity, if rigorously applied, does not seem to conflict with a sound anthropology.
Without any surprise, a host of medical professionals and organ donation advocates, including Catholics, heralded the statements of the Holy Father as an ecclesial affirmation of their “brain death” criteria for transplants. But in reality, Pope John Paul II set forth very strict guidelines—these stricter guidelines are currently being violated, misinterpreted, and ignored by and large. The Holy Father’s approval was wholly contingent on the words “if” and “rigorously applied.”
The position of Pope John Paul II was no different than the basic moral criteria stated found in the Catechism (cf. 2293, 2294, 2296). The Holy Father was always particularly aware of the obligations imposed by the natural law in dealing with ethical questions surrounding “brain death” and organ donation. In his Letter to the Pontifical Academy of Sciences he noted:
The Church has encouraged the free donation of organs and on the other hand she has underlined the ethical conditions for such donation, emphasizing the obligation to defend the life and dignity of both donor and recipient…the aim is to favor a complex service to life, harmonizing technical progress with ethical rigor, humanizing relationships between people and correctly informed the public…
The Holy Father makes it explicitly clear removing vital organs, i.e., organs necessary to sustain life, must be postmortem. In other words, a heart transplant is only morally legitimate if the donor can be declared truly dead “with moral certainty” through rigorous clinical application of norms to ascertain the “signs of death….known through their physical manifestation in the individual subject.” Removal of life-sustaining vital organs under any other circumstances would be gravely immoral. In reality, this makes heart transplants extraordinarily difficult, if not virtually impossible with current technology due to the swift deterioration of the heart after death; however, the inviolable right-to-life must be respected at all times and in all circumstances.
The unease with the theory of “brain death” has continued under Pope Benedict XVI who has insisted pointedly that organ donation must remain “a gift” of the donor and that organs cannot be taken from vulnerable persons without their consent. Furthermore “the main criterion,” the Pope said, must be “respect for the life of the donor so that the removal of organs is allowed only in the presence of his actual death. Science, in recent years has made further progress in the determination of the death of a patient.” In the question of determination of death, the Pope cautioned, “there must not be the slightest suspicion of arbitrariness. Where certainty cannot be achieved, the principle of precaution must prevail.”