Review
Mortal Dangers
Defining Death: The Case for Choice
by Robert M. Veatch and Lainie F. Ross
Georgetown University Press, 2016
(167 pages, $29.95, paperback)
reviewed by Allen H. Roberts II
Within a year of the first human heart transplant in 1967 by Dr. Christiaan Barnard in South Africa, the medical community at large anticipated the inevitable transplantable organ supply shortfall, and moved quickly to propose a new definition of death. Hitherto, from the dawn of the age, death had been determined to have occurred by the observation that a person was unresponsive, was not breathing, and had permanently lost his pulse. The need for transplantable organs changed all that, and the so-called concept of "brain death" was born. To have an option of declaring patients brain dead, rather than dead by traditional "circulatory" criteria, would in the years to come liberate untold numbers of livers, kidneys, hearts, and lungs—destined otherwise to be buried or burned—to the great benefit of many thousands who suffer the most horrid of diseases. "The gift of life," that is, a donated organ, has been for myriad children and adults, precisely that.
The concept of brain death, then, is defined as the irreversible loss of the function of the entire brain, including the deepest center that governs respiration. This definition of "whole-brain death" has been established by scholars, ethicists, Presidential Commissions and Councils, and in law, and is endorsed by the vast majority of religious traditions and across all Christian denominational lines.
Ethics Upgraded?
Robert M. Veatch, now professor emeritus of medical ethics at Georgetown University, is arguably the foremost among scholars who have engaged in the necessary and difficult polemic of the ethical considerations surrounding organ procurement, allocation, and transplantation. He was the first to author a comprehensive and readable text on the subject (Transplantation Ethics, Georgetown University Press, 2000), and has served as ethics consultant for the United Network for Organ Sharing (UNOS), which oversees the safe and equitable distribution of organs. And for four decades, Veatch has been an outspoken critic of the "whole brain" concept of death.
His present book is an extensive excerpt and development of his thought from the second edition of Transplantation Ethics (also coauthored by Lainie Ross, Georgetown University Press, 2015). In this text he presents, now to a general public readership, his long-held alternative to the whole-brain criterion for death, namely, the so-called "higher-brain" criterion. According to his proposal, patients who have suffered severe brain damage of the higher, or neocortical areas of the brain of sufficient magnitude to cause a permanent loss of consciousness—but who continue to breathe unassisted and have sleep-wake cycles—may be declared dead.
The prototype patient in this condition suffers what we call (I think regrettably) persistent vegetative state, or PVS. For these patients, say Veatch and Ross, by advance directive or surrogate decision making, "death behaviors" may then commence, such as grieving, the execution of wills and life insurance policies, and, of course, organ procurement. Life, for Veatch, is equated with the capacity for consciousness and social interaction.
Redefining Death
Veatch and Ross now call for a change in public policy and in law that will allow a "conscience clause," that is, a clause that will permit people to select for themselves, within a narrow range of options, those criteria by which they wish to be pronounced dead. A patient may, by advance or surrogate directive, select to have his death pronounced by (currently established) whole brain or circulatory parameters, or by a higher brain parameter. The choice, say Veatch and Ross, should be the patient's.
Veatch rightly clarifies for his readers that the definition of death itself is a philosophic, religious, and social one, which necessarily must be distinguished from the scientific criteria and methodology by which death is pronounced. Likewise, he correctly notes the conceptual and linguistic ambiguities associated with the whole brain criterion as it has been practiced for decades. The public, and indeed some medical practitioners, understandably remain confused by the fact that a person may be pronounced dead, legally, by whole brain criteria, while his heart continues to beat if he is supported by a mechanical ventilator.
However, the current legal and ethical construct of death as established by circulatory or whole brain criteria nonetheless remains a standard of care deeply engrained in ethical thought, in law, and in most religious traditions. In clinical practice, its validity is seldom, if ever, questioned. Scholars and clerics seem to understand that the deep mystery of the ontological moment of death will remain forever elusive, and that medical procedures used to establish the presence of death will forever fail to capture that moment, except by proxy.
Furthermore, a Presidential Commission called a decade ago to work through controversies surrounding the definition of death acknowledged but rejected Veatch's higher-brain -option, insisting, along with the majority of medical practitioners and theologians, that patients in PVS are most certainly alive, meriting care, compassion, and protection from commodification. Additionally, a number of neurophysiologic studies have surfaced which indicate that our understanding of the exact level of awareness, or lack thereof, in patients in PVS, remains imperfect. Caution is thus advised.
But Veatch would declare these patients dead, or permit them prospectively to permit this declaration, and would procure their organs. There is no escaping the fact, after all, that the entire debate over the definition and determination of death arose from the need for what some would consider a commodity. It is no accident that these discussions appear almost exclusively in textbooks and papers devoted to organ transplantation and the maximization of viable organ availability.
What is different now in what Veatch is saying? Why a new text, issued less than two years after his more comprehensive study of the topic of organ transplantation ethics? To be sure, there is nothing new in Veatch's polemic on the issues surrounding the contemporary definition of brain death. What has changed, and is changing, is the culture in which he writes. At this hour, assisted suicide has become legal in five states; the District of Columbia joined them in February since Congress failed to take affirmative action to oppose a measure that was signed by the Mayor. Compassion & Choices, the patients' rights activist group that has championed assisted death across the land, is on the move in virtually every state to achieve its agenda.
The stage is set, then, for the right of an individual to choose not only the time and place of his death, but also, if Veatch and Ross have their way, the very criteria by which he may be pronounced dead—even if he is, by the current and long-accepted definitions, alive. Since patients with PVS cannot self-ingest a lethal drug, choosing death by a higher brain criterion will necessarily involve active euthanasia. And, in case it escapes notice, organ procurement following euthanasia is currently being practiced in some European countries. Their protocols are being published in American transplantation journals.
Why the Faithful Should Resist
There are several levels at which Christians must reject Veatch's proposal not just of the higher brain criterion but also the proffering of such a choice to the public. The first is that patients with severe brain injury, despite their possibly permanent loss of the ability to interact with their surroundings (that is, as best we can ascertain) and other persons, are not dead, by any criteria.
Second, Holy Scripture and Church tradition throughout the ages have held to the absolute—not relative—sacredness of every human life. The current construct of whole brain death, codified in the Uniform Declaration of Death Act (UDDA) to be the only equivalent to traditional circulatory death, has held in balance the sacredness of the deeply suffering patient who is in need of an organ with the sacredness of a severely afflicted patient who may become an organ donor if and when, and only when, he dies. A deviation from this balance requires a relativizing of sacredness favoring the recipient. The potential organ donor who is in PVS possesses, under Veatch, lebensunwertes Leben—a life unworthy of life.
Finally, although Veatch does not invoke dualistic language, his proposals necessitate a clear hierarchy of mind over body, which has been better articulated by philosopher and higher-brain criterion proponent John Lizza. Writing in Persons, Humanity, and the Definition of Death (Johns Hopkins University Press, 2006), Lizza says,
If there is some sense . . . to the existentialist idea that our nature is not fixed and that we can create, at least in part, who we are, then personhood and personal identity should be approached more as open-ended projects than as realities determined by factors independent of the choices we make. . . . This is to say that we need to ask what it is we want to become, becoming open to the possibility that, just as there are new ways in which we can live, there may be new ways in which we can die.
Robert Veatch, then, has in Defining Death appealed to the public for a liberalization of the criteria by which a person may be declared dead—to such an extent that many who are not in fact dead could be declared so. In the end, he does this for the sole reason of making available to the -public organic commodities—parts of a lower self of those whose lives are not as worth living as others in a more deserving group. The cultural season is ripe for such a program, and, if you will, for the harvest.
To be sure, the needs of potential organ recipients are great, and God in his mercy has opened the door of life-saving organ transplantations. The current criteria for death, however, are sound, and protect both recipient and donor. In so doing, they hold at bay insidious forces that Veatch and others would release among us. This book is a necessary read for whoever would understand and resist them.
Allen H. Roberts II M.D., M.Div., M.A., is Professor of Clinical Medicine and Chair of the Clinical Ethics Committee at Georgetown University Medical Center in Washington, D. C.
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