In the United States, a proposed revision of the American law concerning the definition of brain death is arousing the opposition of many practitioners: according to them, the proposed changes could, among other things, lead to hasty diagnoses in patients who are still very much alive. Once again, the concept of brain death, with all its ambiguities, is at the heart of the debate.
In America, the diagnosis of death is based on criteria set out in a law entitled the Uniform Determination of Death Act (UDDA).
Three scientists - Ariane Lewis, Richard Bonnie, and Thaddeus Pope - have just proposed a significant modification of these criteria: an idea taken up by the Uniform Law Commission (ULC) which is preparing a revised version of the legislative text called RUDDA.
In a column published on May 14, 2021 by the Journal of Medicine and Philosophy, [a pdf of the document may be found at https://doi.org/10.1093/jmp/jhab014 ] a group of over one hundred “experts in medicine, bioethics, law, and philosophy” affirms that, even if the UDDA needs revision, the methodology, the RUDDA, from which this revision is in the process of being made “is not the way to do it.”
To justify RUDDA, the three scientists rely on the current confusion among the different criteria for determining the brain death of a patient. The goal is simple: for them it is to harmonize the law with the guidelines - much broader and more fuzzy - put in place by the American Association of Neurology (AAN).
1. The latter does not recommend an examination showing the complete arrest of brain function beyond the simple electroencephalogram (EEG) performed at the patient's bedside.
It should be remembered on this subject that the French law defining brain death provided, in its first expression dating from April 24, 1968 – the Jeannerey circular -, that the EEG be a complementary examination. This method was considered insufficient by doctors and the public, so the criteria were modified over time.
In practice, the EEG criterion has been gradually abandoned in France, because all doctors consider it insufficient and replaced it either by cerebral angiography or by scanner, a replacement sanctioned by the decree and the December 2, 1996 order.
2. The authors would also like to delete the term “all” from the following sentence: “irreversible cessation of all functions of the entire brain,” to exclude hormonal function, associated with the part of the brain called the hypothalamus, related to the brainstem.
What a paradox! In the aforementioned French decree of 1996, it was precisely added in a specific manner: “The abolition of all brainstem reflexes” for greater reliability.
3. Finally, the proposed revision would no longer require the practitioner to obtain the consent of the family before performing examinations that could lead to a diagnosis of brain death.
Truth on the east side of the Atlantic, error on the opposite shore ...
These fluctuations, which it would not be difficult to multiply by drawing on the laws of various countries, highlight a double problem.
First, the deeply utilitarian nature of these brain death laws. They aim to establish the conditions under which organ harvesting can be legally performed. The very fact that the doctors first practiced, then asked for their revision, shows their insufficiency and establish with certainty that the living were killed by tests.
And in addition, the undeniable success of transplants has multiplied the practice. This has led to a chronic shortage of organ donations: there have been doctors complaining that the reduction in speed in France has reduced the possibility of transplants ...
This lack in turn led to a search for new criteria to broaden the candidates for organ donation, with inevitable drifts. Especially since the very notion of brain death is very questionable.
The disturbing changes which have led the group of scientists opposed to RUDDA in its current form, to denounce the “non-negligible risk of false-positive error (misdiagnosing a live patient as dead)” are therefore perfectly illegitimate.
The collective to conclude that the law should not, to diagnose the death, be based on criteria which are “a topic of legitimate debate among scholars,” and thus do not carry any unanimous scientific certainty.
Unfortunately, the evolution of the practice of transplants does not go in the direction of moral improvement in this part of the medical field.