Is "brain death" really death?

An important article on the moral question about organ harvesting related to the medical ethical issue of brain death.

This article was first published in March 2011 in connection with certain commentaries about Pope Benedict XVI's withdrawal of his consent to act as an organ donor, an important moral question that is often confusing for Catholics.

Fr. Peter Scott studied medicine before entering the seminary and was ordained in 1988 by Archbishop Lefebvre. He served as a seminary professor of Theology, Philosophy, Latin and History, two consecutive terms as the SSPX's USA District Superior, and rector of Holy Cross Seminary in Goulburn, Australia. He is currently the prior and academy principal in Roodespoort, South Africa. His articles and answers on modern medical issues have been much appreciated over the years.

Brain death and organ harvesting

The frequency of organ transplantation in recent years has brought to a head the debate which Popes John Paul II and Benedict XVI have been unable to resolve, despite several discourses on the question. The debate does not concern the morality of organ transplantation in itself. This question was in fact resolved by Pope Pius XII, when he spoke on the question of the transplantation of the cornea of the eye, which can be taken from the cadaver of a deceased person. He had this to say in his discourse to specialists of eye surgery on May 14, 1956:

The cadaver is not, in the proper sense of the word, a subject of rights, for it is deprived of the personality that can alone make it the subject of rights. The extirpation is no longer the removal of a good; the visual organs have, in effect, no longer the character of good in the cadaver, for they no longer serve it, and have no relationship to an end."

Hence the conclusion he draws:

The deceased person from whom the cornea is taken is not harmed in any of the goods to which he has a right, nor in his right to these goods." (Quoted in Courrier de Rome, #312, June 2008)

The same principles can be applied to the transplantation of organs necessary for life, morally permissible provided that they are taken from a cadaver. John Paul II confirmed this very clear teaching in a discourse to the 18th International Medical Congress on Transplantation on August 24, 2000:

Individual vital organs in a body can only be removed after death. This requirement is obvious, since to act differently would mean to intentionally bring about the death of the donor by removing his organs."

Brain death and real death

However, the debate concerns the determination of the moment of death, necessary to morally remove organs for organ transplantation. The difficulty lies in the fact that the moment of death, the separation of body and soul, is not an event that is always obvious to empirical investigation. Furthermore, it is clear that, as both Pius XII and John Paul II admit, the determination of this moment is not a question for theology or for the Church’s Magisterium, but is a technical one for which the medical profession is responsible.

Before 1968, the determination of the moment of death was done by the cessation of respiratory and cardiac functions, entirely necessary to maintain the unity of a living being. However, it was in 1968 that the Harvard criteria were first proposed and accepted, namely that brain death could be used to determine the fact of death. Professor Seifert, a specialist on the question, had this to say to LifesiteNews of February 24, 2009:

We look in vain for any argument for this unheard of change of determining death... except for two pragmatic reasons for introducing it, which have nothing to do at all with the question of whether a patient is dead but only deal with why it is practically useful to consider or define him to be dead… the wish to obtain organs for implantation and to have a criterion for switching off ventilators in ICUs."

It is the identification between brain death and real death that has become the moral basis of all transplantation of organs necessary for life since 1968, for it allows organs to be taken from a person considered juridically dead (consequently not really a person, and no longer considered as having either human dignity or rights, except as determined in a previous last will), but in all appearance biologically alive, given that his cardiac and respiratory functions are being artificially maintained. Encouragement was given to this opinion by Pope John Paul II when, in the abovementioned discourse of August 2000 he declared:

We can say that the recently established criterion to establish death with certitude, namely the complete and irreversible cessation of all cerebral activity, if rigorously applied, does not seem to be in conflict with the essential elements of a serious anthropology…. This moral certitude is considered as the necessary and sufficient basis for acting in an ethically correct fashion.

This opinion was further confirmed by a 2006 statement from the Holy See, entitled 'Why the Concept of Brain Death Is Valid as a Definition of Death' and signed by Cardinal Georges Cottier, then theologian to the papal household; Cardinal Alfonso Lopez Trujillo, at the time president of the Pontifical Council for the Family; Cardinal Carlo Maria Martini, the former Archbishop of Milan; and Bishop Elio Sgreccia, the then president of the Pontifical Academy for Life."

However, John Paul II’s statement was certainly not definitive, and like Pius XII, he accepted the principle that when in doubt a person was presumed to be alive and not dead at all:

Moreover, we recognize the moral principle according to which even the simple suspicion of being in the presence of a living person brings with it the obligation of full respect for him and of abstaining from any action that aims at bringing about death." (March 20, 2004; Discourse to a congress of Catholic physicians)

His acceptation of doubt on this question was shown by his approval of the decision of the Pontifical Academy for Life to convoke a meeting of specialists in February 2005 “On the Determination of the Precise Moment of Death,” which would have had no purpose if the neurological criteria were the final word on the question.

Benedict XVI has continued the same rather ambiguous attitude, on the one hand being in favor of organ transplantation as an act of charity (being himself a card carrying organ donor until elected pope), but on the other hand insisting that it is actual death that is required to legitimize organ transplantation. Professor E. Christian Brugger, Senior Fellow of Ethics at the Culture of Life foundation, points out that in his November 2009 address to a conference on organ transplantation organized in part by the Pontifical Academy of Life, Benedict XVI:

warned that the principle of moral certainty in determining death must be the highest priority of doctors. In its roster of speakers, that conference… did not address the moral issue that is at the heart of the controversy over organ transplants." (LifeSiteNews, February 4, 2011)

While such traditionally-minded ethicists are hoping that opinion in the Vatican may swing back around to condemning brain death as a criterion of real death, we must ask ourselves the question as to why there is such timidity on such an important question. Why is it that the obvious common sense observation that brain death does not bring about dissolution of the organism, nor of its unity, nor of its vital activities, is not clearly admitted by the modernist theologians?

There can be only one explanation: the influence of situation ethics, namely that the morality of each particular act depends essentially on the circumstances rather than on the act itself, with the consequent hesitation to condemn acts as intrinsically evil. This combined with the focus on a more secular ethics, concentrating on the value of man’s physical existence, rather than the sovereign importance of his soul, and of his eternal salvation, has led to the confusion. If only we had the clarity of Pope Pius XII, who in his discourse on the problems of resuscitation had this to say:

Human life continues for as long as its vital functions—which is not the same thing as the simple life of the organs—continue to manifest themselves spontaneously or with the help of artificial procedures" (in Courrier de Rome, op cit.).

The dead donor rule false

A very interesting contribution to the whole consideration of the morality of the removal of organs from persons said to be brain dead has come from an unexpected source. It is the New England Journal of Medicine that published, on August 14, 2008, vol. 359 (7), pp. 674-675, an article that demonstrates beyond all serious doubt that the harvesting of organs is done from persons that truly are living, and that in point of fact it is the harvesting of the organs necessary for life, such as lungs, heart, two kidneys, complete liver and pancreas, that is actually the cause of death.

The title of the article is “The Dead Donor Rule and Organ Transplantation” and it was written by Dr. Truong and Professor Miller (see the excerpt below).

The authors do not conclude that organ transplantation ought not therefore to be done, but to the contrary justify it on the purely utilitarian non-principle that the person was going to die in any case. This we cannot accept, as the Church has constantly taught, for the end does not justify the means, and you cannot kill a person on account of the good that can come to another person. Nevertheless, the passage attached as a note below illustrates the principle that the donor of the organs is indeed a living person, and hence that act of taking the organs is the deliberate termination of life, and that transplantation of organs necessary for life can only be justified as the taking of one life to save or prolong another life—that is, by playing God. The authors are entirely in favor of such immorality, but at least they avoid the hypocrisy of attempting to justify it by pretending that the brain dead person is actually a dead non-person, pointing out that he retains many vital functions, and can live for years in such a state.

In their own words:

The uncomfortable conclusion to be drawn from this literature is that although it may be perfectly ethical to remove vital organs for transplantation from patients who satisfy the diagnostic criteria of brain death, the reason it is ethical cannot be that we are convinced they are really dead."

They do not even hesitate to question the motives of the medical profession changing from the definition of death by cessation of cardiac function, to that of brain death, purely and simply to obtain organs for transplantation:

At worst, this ongoing reliance suggests that the medical profession has been gerrymandering the definition of death to carefully conform with conditions that are most favorable for transplantation. At best, the rule has provided misleading ethical cover that cannot withstand careful scrutiny."

This leaves us with the acute moral problem of patients who are dying, and whose only hope for physical survival lies in heart, lung, or liver transplants. Surely if it is up to the medical profession to determine the moment of death, it is also up to the Church to state loud and clear that brain death is not actual death, and cannot be used as a justification for organ transplantation. Surely if it is up to the medical profession to determine the moment of death, it is also up to the Church to state loud and clear that brain death is not actual death, and cannot be used as a justification for organ transplantation. These organs can only be usefully obtained from a body which still has all its vital functions, and which is still intact—that is biologically alive. The fact that the person is brain dead changes nothing to this. Such persons have no alternative but to accept their terminal illness and to prepare for a holy death. To accept the donation of organs is to accept the termination of another person’s life for one’s own good.

However, a clear distinction must be made from those persons who could receive a donation of an organ from a living person, without the removal of the organ causing his death. This is the case of the transplantation of one kidney, a part of a liver or pancreas, (either from a person in good health or one who is going to die), a cornea, or such harmless procedures as bone marrow transplantations. To the contrary, such transplantations, which require a sacrifice on the part of the donor, but not the loss of life, are strongly to be encouraged, whenever such means are a proportional and appropriate medical treatment.

Finally, Catholics ought to be reminded that they should not grant a general permission for organ transplantation from their own body, as is frequently requested, and that they should not allow such a permission to be included on their driver’s license. This would effectively be to grant permission for the immoral removal of their organs, and for their own murder, should they become brain dead, and it would take away from their Catholic relatives the power to stop the medical profession from taking these measures.

Cited excerpt

Fr. Scott quoted this article written by Dr. Truong and Professor Miller, which was published in the New England Journal of Medicine in the August 14, 2008 issue, vol. 359 (7), p. 674-675.

It shockingly shows that the medical industry admits that "brain dead" patients are actually still alive. Hence the unmistakable conclusion that harvesting vital organs from "brain dead" patients is immoral.

The dead donor rule and organ transplantation

Since its inception, organ transplantation has been guided by the overarching ethical requirement known as the dead donor rule, which simply states that patients must be declared dead before the removal of any vital organs for transplantation.

Before the development of modern critical care, the diagnosis of death was relatively straightforward: patients were dead when they were cold, blue, and stiff. Unfortunately, organs from these traditional cadavers cannot be used for transplantation. Forty years ago, an ad hoc committee at Harvard Medical School, chaired by Henry Beecher, suggested revising the definition of death in a way that would make some patients with devastating neurologic injury suitable for organ transplantation under the dead donor rule.

The concept of brain death has served us well and has been the ethical and legal justification for thousands of lifesaving donations and transplantations. Even so, there have been persistent questions about whether patients with massive brain injury, apnea, and loss of brain-stem reflexes are really dead. After all, when the injury is entirely intracranial, these patients look very much alive: they are warm and pink; they digest and metabolize food, excrete waste, undergo sexual maturation, and can even reproduce. To a casual observer, they look just like patients who are receiving long-term artificial ventilation and are asleep.

The arguments about why these patients should be considered dead have never been fully convincing. The definition of brain death requires the complete absence of all functions of the entire brain, yet many of these patients retain essential neurologic function, such as the regulated secretion of hypothalamic hormones. Some have argued that these patients are dead because they are permanently unconscious (which is true), but if this is the justification, then patients in a permanent vegetative state, who breathe spontaneously, should also be diagnosed as dead, a characterization that most regard as implausible. Others have claimed that “brain-dead” patients are dead because their brain damage has led to the “permanent cessation of functioning of the organism as a whole.” Yet evidence shows that if these patients are supported beyond the acute phase of their illness (which is rarely done), they can survive for many years. The uncomfortable conclusion to be drawn from this literature is that although it may be perfectly ethical to remove vital organs for transplantation from patients who satisfy the diagnostic criteria of brain death, the reason it is ethical cannot be that we are convinced they are really dead.

Over the past few years, our reliance on the dead donor rule has again been challenged, this time by the emergence of donation after cardiac death as a pathway for organ donation. Under protocols for this type of donation, patients who are not brain-dead but who are undergoing an orchestrated withdrawal of life support are monitored for the onset of cardiac arrest. In typical protocols, patients are pronounced dead 2 to 5 minutes after the onset of asystole (on the basis of cardiac criteria), and their organs are expeditiously removed for transplantation. Although everyone agrees that many patients could be resuscitated after an interval of 2 to 5 minutes, advocates of this approach to donation say that these patients can be regarded as dead because a decision has been made not to attempt resuscitation.

This understanding of death is problematic at several levels. The cardiac definition of death requires the irreversible cessation of cardiac function. Whereas the common understanding of “irreversible” is “impossible to reverse” in this context irreversibility is interpreted as the result of a choice not to reverse. This interpretation creates the paradox that the hearts of patients who have been declared dead on the basis of the irreversible loss of cardiac function have in fact been transplanted and have successfully functioned in the chest of another. Again, although it may be ethical to remove vital organs from these patients, we believe that the reason it is ethical cannot convincingly be that the donors are dead.

At the dawn of organ transplantation, the dead donor rule was accepted as an ethical premise that did not require reflection or justification, presumably because it appeared to be necessary as a safeguard against the unethical removal of vital organs from vulnerable patients. In retrospect, however, it appears that reliance on the dead donor rule has greater potential to undermine trust in the transplantation enterprise than to preserve it. At worst, this ongoing reliance suggests that the medical profession has been gerrymandering the definition of death to carefully conform with conditions that are most favorable for transplantation. At best, the rule has provided misleading ethical cover that cannot withstand careful scrutiny. A better approach to procuring vital organs while protecting vulnerable patients against abuse would be to emphasize the importance of obtaining valid informed consent for organ donation from patients or surrogates before the withdrawal of life-sustaining treatment in situations of devastating and irreversible neurologic injury…