Introduction

Debaters have been ignoring a wildly interesting part of the topic:

namely, what does it mean for a patient to be deceased? Is brain death
sufficient? What about cardiac death? Is it even possible to define death?
How do concepts of death vary across countries? (Rememberthis topic isnt
US-specific!)

Why do definitions of death matter? Well, first, its an interesting

topicality debate. But death also sparks a number of interesting ethical
questions. Is it permissible to harvest organs from the irreversibly comatose?
How does that affect doctors decisions to withdraw life support? How should
we choose between patients in need of organs and potential brain-dead
donors?

Even seemingly uncontroversial concepts of deathfor example,

cessation of cardiopulmonary activitycome with a host of a complications.
How soon after cardiac death should we extract organs? Sooner is typically
betterbut what if theres a chance that the patient could be resuscitated?
How should we balance between the pressing need for organs and the off
chance that a patient could recover?

This file is an exploration into the many issues surrounding different

medical definitions of death and the ethical problems that arise as a result.
Rather than separating cards by AFF or NEG, I have divided this file into
different topic areas. Some cards can be written into a topicality shell; others
could be part of a disad. The function of these cards will obviously change
based on the situationits up to you to decide how to use them.

Ambiguity of Death

No Singular Definition
The idea that there is a singular definition of death is an
accident of historyour language surrounding death
evolved only because technologies that exist now were
not possible in the past.
Alan Shewmon 04, [UCLA Medical Center], "The Dead Donor Rule: Lessons from Linguistics," Kennedy
institute of Ethics Journal, Volume 14, Number 3, September 2004 (pp 277-300).

The dynamic interaction between language and thought goes much deeper
than merely focusing attention by naming. What if the assumption that there
must be a clear, unitary, objective, correct concept of death is derived not
so much from intellectual insight as from an accident of the language we
think in: the singularity of the word death? What if our very lexicon is a
setup for the interminable and seemingly unresolvable debates about the
nature and determination of death, as well as for the incoherent thinking
about death that abounds among not only the general public but health
professionals as well? Most languages contain a single-word equivalent to the
English death, suggesting that there is indeed a corresponding singular
concept universally understood across societies down through history. This
makes sense, because up until the very recent advent of life support in
developed countries, the set of candidate death events was fairly limited
final breath, decapitation. . . . Moreover, nothing critical hinged on the exact
timing of deathso long as it had surely occurred prior to burial. But modern
developed countries now find themselves with death situations unknown and
inconceivable throughout the millennia during which languages developed.
Therefore, just because one grew up learning to speak and think with the one
word death, it does not follow that one also must think with the same
singular concept in the context of modern ICUs. (Neither does the new
context necessarily imply that one should not think in terms of a singular
death concept; it simply raises the question, which I believe is answered in
the course of this paper.)

Language surrounding death varies from culture to

culture.
Alan Shewmon 04, [UCLA Medical Center], "The Dead Donor Rule: Lessons from Linguistics," Kennedy
institute of Ethics Journal, Volume 14, Number 3, September 2004 (pp 277-300).

Some languages have no equivalent for the English word death. For
example, in the Kovai language of Papua New Guinea, the verb um means to
die, but the noun formed from it, umong, means not only death but also
mere sickness (not necessarily fatal). There is no other obvious word for
death or sickness. This may be quite common in Papua New Guinean
languages (personal communication, Michael Johnstone, Cam- bridge
University). In Tok Pisin, English-based creole of Papua New Guinea, he
dies/is dead is rendered em i dai, which can also mean he is unconscious.
To indicate what we call death they add an aspectual qualifier: em i dai pinis,
which also can mean something like he is al- ready dead and which is not

available for the future tense, or dai olgeta (die altogether) (personal
communication, Eva Lindstrom, Linguistics, Stockholm University). These
peoples very language seems to reflect a world-view in which the
demarcation between life and death lies more in the direction of life than we
tend to think. A similar thing occurs in Quechua: My sister-in-law is dying!
This, in Quichua, may mean anything from a headache to a snakebite. If one
is in excellent health, he is living. Other- wise, he is dying. (Elliot 1957,
pp. 4243) Such a linguistic difference reflects a profound difference in worldview, in which death is viewed not as the end of life but as a kind of extreme
of illness, after which the spirits of the dead continue to live (physically) in a
different place, eating, sleeping, working, and so forth, from whence they
may return periodically to speak about their present life to family mem- bers
in dreams.

There is no universally true definition of death.

Alan Shewmon 04, [UCLA Medical Center], "The Dead Donor Rule: Lessons from Linguistics," Kennedy
institute of Ethics Journal, Volume 14, Number 3, September 2004 (pp 277-300).

We should abandon the search for criteria for the universally true moment
of death, as there is no single, context-independent, true mo- ment of
death. Rather, there are various moments of state discontinuity, not all of
which necessarily occur in a given case, and not all of which are equally
striking to the senses and intellect of an observer. All of these state
discontinuities are equally real and valid phenomena in themselves, and
there is no a priori reason that one of them must be singled out for the
designation death while the others slip into conceptual obscurity for want
of a word. Once we recognize the restrictions that our language tends to
impose on our ways of thinking about death, we can attempt to transcend
them through expanding the vocabulary to correspond to the more
enlightened understanding. We could invent words for E1, E2, and so forth,
that would be distinct enough not to create a false impression that they were
all spe- cies of the same conceptual genus death, but simply different
moments of state discontinuity resulting from changes in observable
parameters along the continuous process known as dying and decaying.

We should not think of death as a moment that

demarcates when organ procurement is permissible.
Alan Shewmon 04, [UCLA Medical Center], "The Dead Donor Rule: Lessons from Linguistics," Kennedy
institute of Ethics Journal, Volume 14, Number 3, September 2004 (pp 277-300).

Society traditionally has assumed a univocal notion of death, in large part

because until very recently in human history there was no need for a more
nuanced notion. Thus, our language developed with only a single word for
death, namely, death and its relatives dead, to die, and the like,
euphemisms excluded. What served humankind well linguisti- cally for most
of history now tends to restrict thinking when applied to situations uniquely
occasioned by modern medicine. It is time to expand our death vocabulary to
facilitate the recognition of multiple events, all equally real, along the process
from declining health to decomposition. Depending on the context, some of

these death-related events may constitute a more obvious discontinuity than

others and may more justifiably be considered death within that context. It
also may be more appropriate emotionally and/or morally to begin certain
kinds of death behavior at one of these moments and not others,
depending on the clinical context and the behavior in question. There is no
reason to assume a priori that there must be an overarching, unitary
conception of death from which all diagnostic criteria and tests must derive.
Regarding organ transplantation, the important and truly meaningful question
is not When is the patient dead? but rather When can organs X, Y, Z . . . be
removed without causing or hastening death or harming the patient in any
way? Perhaps some of the general publics confusion and incoherence
surrounding the DDR, as revealed by the Siminoff, Burant, and Youngner
survey, results from a mismatch between peoples intuitive understanding of
death in the era of modern medicine and the limited lexicon that our
colloquial language imposes on us for articulating that intuitive
understanding.

Relativity
Death is ambiguous and culturally relative.
Elysa R. Koppelman 03, [Oakland University], "The Dead Donor Rule and the Concept of Death:
Severing the Ties that Bind Them," The American Journal of Bioethics, 3:1, Winter 2003, 1-9.

Veatch and Charo both believe that death is an ambiguous concept because
it is not a purely bio- logical concept. Death is a social, normative is- sue
that is inuenced by religion, metaphysics, and values (Veatch 1999); it is a
concept that is intimately tied with social or political goals (Charo 1999).
Death has moral, religious, and political connotations making its extension
something not purely empirical, but laden with feelings, values, and beliefs.
Because of this belief about the nature of death, these theorists claim that a
single mo- ment is insuf cient to justify all social and moral concerns that
seem to be connected with death for all people. Both theorists share the
intuition that lies behind the dd rule, claiming that we need mo- ments of
death, both socially and psychologically, but they argue that these moments
differ among individuals and cultures.

Legal Fictions
Even if death is ambiguous, we can still create legal
fictions about death in the realm of public policy.
Elysa R. Koppelman 03, [Oakland University], "The Dead Donor Rule and the Concept of Death:
Severing the Ties that Bind Them," The American Journal of Bioethics, 3:1, Winter 2003, 1-9.

it seems far easier to recognize and then disregard the

ambiguity of death than to embrace it. She questions whether the general public can handle the ambiguity and
subtle nuances needed to make personal decisions about the meaning of death. Public acceptance, she writes, is far easier to
gain by urging people to focus on a single, simple, seemingly self- evident truth. What the public needs are simple rules
that are accessible to common sense and common experience . The public has accepted
Charo argues that for public policy

legal fictions in the past, Charo points out, because their acceptance resolves moral or social problems in a way that exemplifies

same
approach might work for public policy surrounding death. Given the
difficulties in reaching consensus on a medical definition of death, law can be
used to create fictions. For example, we have accepted the legal fiction of
considering persons who have been missing for a certain amount of years as
dead. Although the real status of the missing person is unknown, we have agreed to accept a set of somewhat arbitrary facts as grounds
for acting as if the person is dead. We deem it reasonable to act this way in agreed-upon circumstances in part
because doing so allows us to uphold certain values we believe to be
important. Likewise, Charo argues, we might get the public to agree that patients in PVS can be considered dead for the purpose of
presumptions about the hierarchy of values to be upheld in any particular situation in which they are implicated. The

resolving marital concerns. This is because some values that marriage refects are not being met if one partner is in PVS, and the public

these values are important enough to outweigh any rights the PVS
patient might have in this area.
believes that

Legal determinations of death should be context-specific.

Elysa R. Koppelman 03, [Oakland University], "The Dead Donor Rule and the Concept of Death:
Severing the Ties that Bind Them," The American Journal of Bioethics, 3:1, Winter 2003, 1-9.

Determinations of death seem to be connected to many moral and social

acts. But since there is no consensus about death for all moral and social acts, Charo suggests that we
accept a different point for each moral and social act that depends on death
as a legal fiction and that we do so in the name of up- holding important social values. Each {the} point at which we
consider a patient dead for a particular purpose needs to be easily accepted
and understood by the public.

AT Legal Fictions
There is no way to generate consensus on a legal fiction
about death as it relates to organ procurement.
Elysa R. Koppelman 03, [Oakland University], "The Dead Donor Rule and the Concept of Death:
Severing the Ties that Bind Them," The American Journal of Bioethics, 3:1, Winter 2003, 1-9.

The problem with the legal concept of brain death is that there is no
consensus on the state of affairs under which it would be reasonable to act as
if the person were dead for certain purposes, such as removing organs or
withdrawing life support. There is no common-sense reality; there is no common experience. We cannot get the public to fo- cus on a single, simple, selfevident truth, because there are too many alternative ontological and moral
commitmentscommitments that carry with them strong emotions because
they are often tied intimately to ones identity or worldview. And it seems
consensus is unlikely given the social, po- litical, and normative nature of the
concept of death. Legal ctions might be a good idea in some cases, but it is
unlikely that they will work here. Recognizing and then disregarding the
ambiguity of death simply has not been successful. So how can advocates of
the dd rule respond to the fact that brain death has not been completely
accepted by the public as a legal ction? The contrary approachesdiscarding
and em- bracing ambiguityare reected in a discussion on the Critical Care
Medicine-Listserv (CCM-L)1 concerning how to approach the parents of a
brain- dead child about organ donation. Should you A. tell parents that their
child is dead and that the organs are being kept functioning by articial
means; or B. tell the parents that their child is brain-dead and then explain
what that means? Aviel Roy-Shapira, who posted this question, wrote that
arguments for A focused on the claim that the message of death should be
unambiguous (that is, the ambiguity should be downplayed or masked) and
that arguments for B. emphasized that the ambiguity cannot be masked, that
the family cannot believe a direct statement of death, seeing their beloved
all rosy, with a regular heart rate on the monitor.

New definitions of death are motivated by an interest in

procuring organs.
George Khushf 10, [University of South Carolina], "A Matter of Respect: A Defense of the Dead Donor
Rule and of a "Whole-Brain" Criterion for Determination of Death," Journal of Medicine and Philosophy, 35,
330-364, 2010.

I will argue that it is exactly in this sense that organ donation plays a role in
the refinement of death concepts. (The same could also be said for the
relevance of other high-technology medical practicessuch as the termination of high cost, resource, and labor intensive carefor the development of
new criteria for determination of death. For the sake of simplicity, I will just
focus on the questions related to organ donation.) Two things jointly motivate and inform the development of more precise criteria for determination of
death: (a) the costs of being too conservative and (b) the potential masking
effect of technologies used to sustain life. We can thus concede that an
interest in harvesting organs (along with some other interests) partly

motivates and informs the development of new neurological criteria for

determining death. This fact, by itself, is very inter- esting. Death is obviously
a pervasive human phenomenon. each person in her own turn must face it.
And death must be faced not just in the final mo- ments of life, but
throughout life. For each of us, an awareness of our own impending death
provides a horizon and limit for what we might accomplish during our brief
stay on earth. The wisdom of the great philosophical and religious traditions
are all, in some way, related to how this inescapable da- tum of human
existence might inform our lives and how it might be man- aged. But when
we come to our current debates about death and the criteria of death, these
big questions are largely forgotten, and nearly everything is framed in a
rather narrow medical context. To this extent, the criteria for determining
death are oriented toward medical ends that are, in the larger human scheme
of things, but a tiny, insignificant consideration (Nozick, 1981, chapter 6).

Brain Death

Brain Death- Generic

The use of brain criteria for determining death is
generally accepted in the United States and abroad.
Michael A. DeVita et al 92., [assistant professor of anesthesiology/critical care medicine and director
of the Surgical Intensive Care Unit at Montefiore University Hospital, University of Pittsburgh medical
Center], History of Organ Donation by Patients with Cardiac Death, in Procuring Organs for Transplant:
The Debate over Non-Heart-Beating Cadaver Protocols, Johns Hopkins University Press, Print, 1992, pp. 2425.

While some debate continued, the use of brain criteria for determining death
grew in acceptance in the 1970s and 1980s in both the United States and
abroad. Legislative action in the United States (Curran 1989; Report 1986)
and elsewhere (Kaufman et al. 1979) attempted to prove identification and
recruitment of brain dead donors. In Denmark, Sweden, France, Israel, Italy,
and Norway organs can be taken from all brain dead patients unless the
patient had specifically denied permission (Kaufman et al. 1979). Over the
last 18 years, withdrawal of life support from living patients who have
requested, or whose surrogates have requested, that the support be
withdrawn has been gaining in acceptance in the U.S., and is supported by
case law (In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976); Meisel 1992). This
has probably contributed to the acceptance of discontinuing ventilator
support of patients who can be declared dead using neurologic criteria.

Despite objections, neurological death is generally

accepted by the medical community.
Rodriguez-Arias et al 11, David Rodriguez-Arias, [Universidad del Pais Vasco/EHU], Maxwell J.
Smith [University of Toronto], and Neil M. Lazar [University of Toronto and University Health Network],
"Donation After Circulatory Death: Burying the Dead Donor Rule," The American Journal of Bioethics, 11(8),
2011.

These problems have led scholars to support organ re- trieval from braindead patients by way of two main justi- fications. The Presidents Council on
Bioethics has argued for the necessity of a new definition of death: the
cessation of the fundamental vital work of a living organismthe work of selfpreservation, achieved through the organisms need-driven commerce with
the surrounding world (Pres- idents Council on Bioethics 2008). This
alternative has been acknowledged to be the best available rationale to
equate the destruction of the entire brain to death, but has also been
thoroughly criticized as being a vague, arbitrary, in- consistent and
counterintuitive contortion of semantics intended to save the neurological
standard at all intellec- tual costs (Shewmon 2009, 20). A second
justification has been offered by Truog and others, who have claimed that
procuring organs from patients with a severe brain injury can be performed in
a respectful and protective way, albeit acknowledging that it constitutes an
acceptable violation of the DDR (Truog and Robinson 2003). We explore the
impli- cations of this proposal throughout this article. There are clearly
unresolved issues regarding the determination of death by neurological
criteria in relation to organ procurement. However, organ procurement from
brain-dead patients is widespread and is for the most part a fairly

uncontroversial practice, certainly due to the fact that neurological death

remains a reliable criterion for estab- lishing a prognosis of irreversibility.
Where controversy is now focused is in cases of donation after circulatory
death (Bernat 2010).

Whole brain death has near universal legal status.

Iltis and Cherry 10, Ana Smith Iltis [Associate Professor, Center for Health Care Ethics, Saint Louis
University] and Mark J. Cherry [St. Edward's University], "Death Revisited: Rethinking Death and the Dead
Donor Rule," Journal of Medicine and Philosophy, 35: 223-241, 2010.

The conceptualization of whole brain death as death was further advanced by

two significant events in 1981. First, the national Conference of Commissioners on Uniform State laws (nCCUSl) published the Uniform determina- tion
of death Act (UddA). The UddA (1981) stated that: An individual who has
sustained either (1) irreversible cessation of circulatory and respiratory
functions, or (2) irreversible cessation of all functions of the entire brain,
including the brain stem, is dead. A determination of death must be made in
accordance with accepted medical standards. Second, the Presidents Commission for the Study of ethical Problems in Medicine and Biomedical and
Behavioral research published a report affirming the findings and recommendations of the harvard Ad hoc Committee published in 1968 regarding a
whole brain definition of death and urging adoption of the UddA (previously
endorsed by the American Medical Association, the American Bar Association.
and the nCCUSl). It was hoped that the UddA would be adopted in all states
so that there would be one single set of guidelines describing who was dead
and how death could be determined throughout the United States. The failure
to adopt uniform standards for determining death would have interesting
implications, with people who would be deemed dead in one state being
considered very much alive in other states. eventually, all 50 states
recognized neurological criteria for determining death. Two states, however,
have specific laws (new Jersey) or regulations (new york) in place to
accommodate persons who object to declarations of death grounded in
neurological criteria on religious grounds (such as Ortho- dox Jews; see Olick,
1991; new york, 1987; new Jersey declaration of death Act, 1991).

Harvard Committee Definition

A 1968 Harvard committee defined death to include
cessation of all brain functions.
Norman Frost 04, [Professor of Pediatrics and Bioethics; Director of the Bioethics Program; and Vice
Chair of the Department of Medical History and Bioethics at the University of Wisconsin-Madison],
"Reconsidering the Dead Donor Rule: Is it Important that organ Donors be Dead?" Kennedy institute of
Ethics Journal 14.3 (2004) 249-260.

In 1968, an ad hoc committee at the Harvard Medical School (Harvard

Medical School Ad Hoc Committee 1968) published a report with the explicit
utilitarian intent of improving the supply of organs for transplantation (Pernick
1999). To achieve this goal, the committee reported its conclusions on a
strictly medical matter and then made a policy proposal. The medical
conclusion was that they had identified criteria for reliably ascertaining when
all brain functions had irreversibly ceased and a patient could be considered
to be irreversibly comatose. This condition they called "brain death." The
policy proposal was that this medical conditiondeath of the brainbe
accepted as constituting death of the person and that laws be enacted to
acknowledge this. Implicit in the report was the assumption thatfor reasons
of ethics, law, and public acceptancea patient should be dead before vital
organs were removed. This assumption has come to be known as "the dead
donor [End Page 249] rule" (Robertson 1998). Since the traditional definition
of death, based on irreversible loss of cardiorespiratory function, had been
undermined by the development of machines that could replace these
functions, a new definition of death was needed.

Higher Brain Definition

Higher brain advocates believe that death should focus on
the permanent loss of brain function necessary for
consciousness or personal identity.
George Khushf 10, [University of South Carolina], "A Matter of Respect: A Defense of the Dead Donor
Rule and of a "Whole-Brain" Criterion for Determination of Death," Journal of Medicine and Philosophy, 35,
330-364, 2010.

Generally, higher brain critics argue that a policy on determining death in

humans should focus on the permanent loss of that brain function necessary
for consciousness or personal identity. here, there are several variants. According to Veatch (1993, 24; also 1988 a,b, 2005), the task of defining death
primarily concerns whether somebody is to be treated as a member in full
standing of the human moral community. he thinks that this concerns
whether someone has integrated functioning of mind and body not whether
he/she is a person. Veatch distinguishes his morally grounded argument
from that of other higher brain advocates like Green and Wikler, who make
death depend on an account of personal identity. Using a brain switch
scenario, Green and Wikler (1980) argue that an individual, for example,
Jones, is not identical with the individual that person becomes when all continuity of self-awareness is lost. Jones, whatever kind of entity he is, is essentially an entity with psychological properties. Thus, when brain death
strips the patients body of all its psychological traits, Jones ceases to exist.
(121) Green and Wikler claim that their argument rests on ontological concerns related to personal identity but that these arguments do not depend on
controversial accounts of personhood or on moral concerns associated with
who has full standing in a moral community (as in the arguments of Veatch).
A third, higher brain argument can be found in Puccetti (1976) and Glover
(1977). For them, death occurs when life no longer has value for the human
whose life is considered. This is morally grounded, but, unlike Veatchs argument, it depends on a kind of moral factwhether persons in question could
value their own liferather than on more complex considerations about who
deserves full standing as members of a moral community. De- spite these
differences, all advocates of higher brain definitions share some common
assumptions: a determination of death depends on an individual- oriented or
person-oriented account of what is essential to or a condition of being
human; it then uses loss of higher brain function essential for individuality/personal identity/valuing life as a criterion and recognizes that tests
would then need to be developed to ascertain when such function is lost. In
all cases, determination of death is emphatically not a purely biological
matter.

Presidents Commission Definition

The Presidents Commission, which is a model for the
majority of state statutes, recognizes both brain death
and cardiac death.
David Cole 92, [associate professor of philosophy in the Department of Philosophy, University of
Minnesota], Statutory Definitions of Death and the Management of Terminally Ill Patients Who May
Become Organ Donors After Death, in Procuring Organs for Transplant: The Debate over Non-HeartBeating Cadaver Protocols, Johns Hopkins University Press, Print, 1992, p. 70.

Third, there are statutory definitions of death: These stipulate what is to

count as death for legal purposes. A host of states have adopted new
statutory definitions of death. These are revisionary in various ways; most
conspicuously, they embrace brain death. The statues are much narrower
than the concept of death and the phenomenon of death. Typically they
provide a definition of death that is inapplicable to organisms that lack brains
and hearts. The UPMC protocol occurs against a background of more than 20
years of discussion of the legal definition of death and proposals for reform. A
central event in that discussion was the publication in 1981 of the report by
the Presidents Commission entitled Defining Death. That report centers
around a proposed Uniform Determination of Death Act: An individual who
has sustained either (1) irreversible cessation of circulatory and respiratory
functions, or (2) irreversible cessation of all functions of the entire brain,
including the brain stem, is dead. A determination of death must be made in
accordance with accepted medical standards. This is the model for a majority
of the state statutes.

The widely accepted Presidents Commission recognizes

both cardiopulmonary and neurological criteria for the
same phenomenon of death.
George Khushf 10, [University of South Carolina], "A Matter of Respect: A Defense of the Dead Donor
Rule and of a "Whole-Brain" Criterion for Determination of Death," Journal of Medicine and Philosophy, 35,
330-364, 2010.

In sum, the Presidents Commission assumed that cardiopulmonary and

neurological criteria were different criteria for the same phenomenon of
death. These criteria provided two windows on the same event. By focusing only on the criteria and not on the higher generality basic concepts, the
Commission left open how explicitly one understands that single phenomenon of death. The policy recommendation of the Presidents Commission
outlining the second pillarwas rapidly enshrined in law and clinical practice.
Although neither Capron-Kass nor the Presidents Commission addressed DDr
in their writings on the determination of death, this first pillar arose as the de
facto result of an explicit statute providing the second pillar. Broad social
prohibi- tions against the direct taking of human life were already in place in
all states. since viable organs depended on perfusion, a consequence of the
second pillar was that the new neurological criteria would provide the basis
for determining death of organ donors.6

AT Brain Death
Japan does not accept the concept of brain death in
organ transplantation.
Michael A. DeVita et al 92., [assistant professor of anesthesiology/critical care medicine and director
of the Surgical Intensive Care Unit at Montefiore University Hospital, University of Pittsburgh medical
Center], History of Organ Donation by Patients with Cardiac Death, in Procuring Organs for Transplant:
The Debate over Non-Heart-Beating Cadaver Protocols, Johns Hopkins University Press, Print, 1992, p. 25.

The general acceptance of brain death criteria was not without exception,
however. In Japan, where controversy over organ procurement from a brain
dead donor had broken out more than a decade earlier, as late 1985
surgeons were indicted on murder charges for the removal of kidneys,
pancreas, and liver from a brain dead woman. Because of lack of public
acceptance of the concept of brain death, cadaver organ donation in japan
comes only from non-heart-beating cadaversthose pronounced dead by
cardiac criteria (Koyama et al. 1989, Fujita et al. 1989; Kozaki et al. 1991).

Brain death legislation drew considerable opposition.

Michael A. DeVita et al. 92, [assistant professor of anesthesiology/critical care medicine and director
of the Surgical Intensive Care Unit at Montefiore University Hospital, University of Pittsburgh medical
Center], History of Organ Donation by Patients with Cardiac Death, in Procuring Organs for Transplant:
The Debate over Non-Heart-Beating Cadaver Protocols, Johns Hopkins University Press, Print, 1992, p. 24.

Opposition to brain death legislation came mainly from individuals in whose

view such bills were manifestations of a movement to withhold medical care
and life support from handicapped persons (Curran 1989). At a meeting in
1971, philosophers and theologians denounced brain death as a crass
expediency, unnecessary, and immoral that was hastily devised by surgeons
(Foster 1076; Perry 1979). They took issue with the Harvard decision that
death of the central nervous system equals death of the individual. They
argued that it was more precise to say that death of the central nervous
system is always followed by death but in fact is not death. Van Till (1976)
argues forcefully that the Harvard Committee was attempting to declare
death to achieve practical ends, and therefore its conclusions were unethical
and legally unacceptable.

Tests to determine brian-death are inconsistent and

inconclusive.
Robert D. Truog 97, [Professor of Medical Ethics, Harvard Medical School], "Is it time to abandon brain
death?" Hastings Center Report 27, no. 1 (1997).

Finally, clinicians have patients who fulfill the tests for brain death frequently
respond to surgical incision at the time of organ procurement with a
significant rise in both heart rate and blood pressure. This suggests that
integrated neurological function at a supraspinal level may be present in at
least some patients diagnosed as brain-dead. This evidence points to the
conclusion that there is a significant disparity between the standard tests
used to make the diagnosis of brain death and the criterion these tests are
purported to fulfill. Faced with these facts, even supporters of the current

statues acknowledge that the criterion of "whole-brain" death is only an

"approximation."

The concept of brain death is incoherent.

Franklin G. Miller 08 [Department of Bioethics at the National Institutes of Health] and Robert D. Truog
[Professor at Harvard Medical School], Rethinking the ethics of vital organ donations, Hastings Center
Report, Volume 38, Number 6, November-December 2008, pp. 38-46.

We contend that the proposition that brain death constitutes death of the
human being is incoherent and, therefore, not credible. To be sure, brain
death is a valid diagnosis of irreversible coma. No one who satisfies the
criteria for brain death regains consciousness.3 Contrary, however, to the
Uniform Determination of Death Act developed by a president's commission
in 1981, many patients properly diagnosed as dead under whole brain death
criteria do not have "irreversible cessation of all functions of the entire
brain."4 For example, the brains of many patients retain a variety of
homeostatic functions, from regulation of temperature to control over salt
and water balance.5 James Bernat and colleagues have responded that brain
death should not require the loss of literally all functions of the entire brain,
but only those that preserve the "functioning of the organism as a whole."6
According to Bernat, the diagnosis of brain death signifies the loss of those
critical brain functions that maintain the integrity of the body as a living
organism.7 The loss of these functions causes the body to "dis-integrate,"
leading over a period of days to cardiac arrest. This deterioration is claimed
to be inevitable, regardless of whether the patient is on life support.

The brain dead are not really dead.

Franklin G. Miller 08 [Department of Bioethics at the National Institutes of Health] and Robert D. Truog
[Professor at Harvard Medical School], Rethinking the ethics of vital organ donations, Hastings Center
Report, Volume 38, Number 6, November-December 2008, pp. 38-46.

With both theoretical analysis and empirical data, Alan Shewmon has
seriously challenged Bernat's defense of brain death. Shewmon has shown,
for example, that some patients who fulfill all of the diagnostic criteria of
brain death can "survive" for many years.8 With life support systems no more
complex than home mechanical ventilation, these patients maintain an array
of integrative functions including circulation, digestion and metabolism of
food, excretion of wastes, hormonal balance, wound healing, growth and
sexual maturation, and even gestation of a fetus. Based on meta-analytic
data of brain dead patients maintained on ventilators for one week or more,
Shewmon argues that the human body does not need the brain to integrate
homeostatic functions, and that integration of these activities is possible
even in the absence of these supposedly critical brain functions. In sum,
patients who fulfill all of the diagnostic criteria for brain death remain alive in
virtually every sense except for the fact that they have permanently lost the
capacity for consciousness.

Brain death is impossible to determine.

Norman Frost 04, [Professor of Pediatrics and Bioethics; Director of the Bioethics Program; and Vice
Chair of the Department of Medical History and Bioethics at the University of Wisconsin-Madison],

"Reconsidering the Dead Donor Rule: Is it Important that organ Donors be Dead?" Kennedy institute of
Ethics Journal 14.3 (2004) 249-260.

Problems with the medical definition and ascertainment of "brain death" have
long been evident. Many patients determined to have lost all brain function
still maintain hypothalamic function sufficient to regulate water balance (Lynn
and Cranford 1999), so the "whole brain" in fact has not ceased to function.
Cells continue to function, evidenced by recovery of stem cells which can be
propagated in vitro. And in the real world of clinical practice, even those who
are called upon to make the determination of when a patient is dead
according to these criteria have a high rate of misunderstanding, confusion,
and error. For example, only 35 percent of physicians and nurses likely to be
involved in organ procurement at a major academic health center correctly
identified the legal and medical criteria for determining death. Nineteen
percent of these clinicians "had a concept of death that was consistent
with . . . (classifying) . . . anencephalics and patients in a persistent
vegetative state as dead" (Youngner et al. 1989).

AT Harvard Committee Definition

The Harvard Committees definition of death has nothing
to do with biological death and is instead an imposed
moral judgment.
Robert M. Veatch 04, [Professor of Medical Ethics, Kennedy Institute of Ethics, Georgetown University],
"Abandon the Dead Donor Rule or Change the Definition of Death?" Kennedy Institute of Ethics Journal 14.3
(2004) 261-276.

As a graduate student at Harvard interested in medical ethics, I worked

closely with several of the members of the Ad Hoc Committee, including
Henry Beecher, its chair, and Ralph Potter, the theological ethicist on the
committee. None of the members was so naive as to believe that people with
dead brains were dead in the traditional biological sense of the irreversible
loss of bodily integration. (Some may have made the logical and empirical
mistake of assuming that people with fully dead brains are dead because
they are inevitably soon to experience death in the traditional biological
sense, but some committee members understood that the predicted loss of
this bodily integration in the near future did not prove that the individual with
a dead brain already was dead.1 ) Rather, committee members implicitly held
that, even though these people are not dead in the traditional biological
sense, they have lost the moral status of members of the human moral
community. They believed that people with dead brains no longer should be
protected by norms prohibiting homicideeven merciful homicide with the
consent of the one killed. In effect, the committee and its fellow travelers
proposed an entirely new definition of death, one that assigned the label
"death" for social and policy purposes to people who no longer are seen as
having the full moral standing assigned to other humans. This then new
definition of death thus ceased to have inherent biological meaning, but
rather embodied a moral meaning. The committee members [End Page 267]
identified a group of humans deemed to have undergone a quantum change
in moral status and called them "dead." This signaled that such persons
would stand in a new relation with the moral community. Among the
implications would be that organs that normally preserve life could be
removed without the elaborate moral defense normally necessary to justify a
homicide. Once one is labeled "dead," mere advance approval of the
individual or of a valid surrogate routinely would justify removal of organs
that normally would preserve life. The person with a dead brain would be
treated the way dead people are treated.

The Harvard criteria for death sets incoherent standards.

Norman Frost 04, [Professor of Pediatrics and Bioethics; Director of the Bioethics Program; and Vice
Chair of the Department of Medical History and Bioethics at the University of Wisconsin-Madison],
"Reconsidering the Dead Donor Rule: Is it Important that organ Donors be Dead?" Kennedy institute of
Ethics Journal 14.3 (2004) 249-260.

The other conclusion of the Harvard reporti.e., that patients who are "brain
dead" are in fact deadalso has been subject to increasing criticism for two
reasons. First, on epistemological grounds, there are many competing

proposals for what constitutes "death," and there is no objective way of

identifying which is the "right" or "correct" definition (Arnold and Younger
1993; Emanuel 1995; Halevy and Brody 1999). Second, the concept of "brain
death" as equivalent to death of the person is not coherent to substantial
numbers of ordinary citizens. For some, the standard is too high, as they
believe a loved one has died long before the whole brain has ceased to
function. For some, the standard is too low, as it is difficult to accept that a
patient is dead when he appears to be sedated but otherwise normal, with
good color and all other organs functioning normally, and indistinguishable
from many others in the intensive care unit whose status as "alive" is not in
question.

Lack of Consensus
A current lack of consensus exists on the definition of
death and the permissibility of organ procurement from
dead patients.
Robert M. Veatch 04, [Professor of Medical Ethics, Kennedy Institute of Ethics, Georgetown University],
"Abandon the Dead Donor Rule or Change the Definition of Death?" Kennedy Institute of Ethics Journal 14.3
(2004) 261-276.

Laura Siminoff, Christopher Burant, and Stuart Youngner (2004) have made
clear that substantial confusion and disagreement ex- ists among the citizens
of Ohio over the definition of death and [End Page 261] when organs for
transplant can be procured. The cases presented in their survey involved (1)
a patient who had lost all functions of the entire brain (Scenario 1: the "brain
death" case), (2) an irreversibly comatose patient on a ventilator with no
possibility of recovery of consciousness (Scenario 2: irreversible coma), and
(3) a patient breathing without mechanical support who had no possibility of
recovery of consciousness (Scenario 3: the PVS case). Responses to these
three cases from more than 1300 Ohio residents show not only that the
respondents apparently often misunderstand the Ohio law regarding the
definition of death and organ procurement, but also that their moral intuitions
appear significantly inconsistent with that law. A majority was wrong in their
belief about whether someone with a dead brain was legally dead. On the
other hand, a majority was willing to claim that the comatose person was
really dead, and, in spite of enormous publicity about famous patients in
persistent vegetative statesuch as Karen Quinlanbeing alive, a large
minority (34%) considered such a person dead. Youngner and others have
documented how physicians and nurses were similarly confused and in
disagreement about the status of patients with dead brains or severe brain
pathology. In 1989, using a somewhat different method, he and his
colleagues found that only 35 percent of respondents within the health
professions correctly identified the legal and medical criteria for determining
death (Youngner et al. 1989). The Ohio study by Siminoff and colleagues also
shows that one third of the respondents is willing to donate the organs of at
least some humans considered alive, at least when presented with a
hypothetical scenario. That is, they are willing to condone killing them to get
their organs. They would, in short, be willing to break the "dead donor rule"
(DDR), which holds that one cannot licitly procure life-prolonging organs from
a donor until that donor is dead. To procure when the organ source is still
alive would kill the donor. It would be a homicide, and even the explicit
permission of the donor does not legally justify a homicide. The present study
thus raises the question of whether a rule that is near sacrosanct in the
transplant community can be supported if there is such a large minority who
reject it. Moreover, Siminoff and her colleagues also found that a very large
percentage (about 95%) were willing to procure life-prolonging organs from
legally living comatose and vegetative patients when they were mistakenly
classified as dead. This represents a second group that would, in effect, break
the DDR because they were mistaken about classifying legally living patients

as deceased. [End Page 262] The apparent confusion among lay people and
health professionals over the definition of death and the DDR raises
provocative questions not only for clinicians and policymakers, but also for
theoreticians who have analyzed the definition of death and placed
substantial weight on the DDR (Arnold and Youngner 1993). Recent
scholarship has called that rule into question (see Koppelman 2003 and
fifteen accompanying commentaries on the subject).

Brain Dead Donors

Brain-dead patients were a main source of transplantable
organs before the institution of brain death laws.
Robert M. Arnold et al 92, [associate professor of medicine in the Division of General Internal
Medicine and associate director for education at the Center of Medical Ethics, University of Pittsburgh
Medical Center], Back to the Future: Obtaining Organs from Non-Heart-Beating Cadaver Donors, in
Procuring Organs for Transplant: The Debate over Non-Heart-Beating Cadaver Protocols, Johns Hopkins
University Press, Print, 1992.

If organ transplantation is going to continue to flourish, alternative sources of

organs must be found. Patients who have been declared dead by
cardiopulmonary criteria, rather than brain-oriented criteria, are another
potential sources of transplantable organs. These patients are referred to as
non-heart-beating cadaver donors (NHBCDs) because their hearts are no
longer beating at the time of organ procurement. Prior to the institution of
brain death laws, NHBCDs were the main source (along with living, related
donors) of organs for transplantation. This method fell into disfavor following
the advent of brain death legislation because, in contrast to HBCDs, the
organs of NHBCDs are not perfused up to the time of procurement. Between
the time the patient diesi.e., when the heart stopsand the organs are
procured, the organs suffer damage, often irreparable, because of the lack of
blood flow, this damage is called warm ischemia.

Conflicts of Interest
Procuring organs from brain-dead patients generates
ethical problems for the doctor who must decide whether
to withdraw life support.
Byers W. Shaw 92, [professor of surgery and chief of transplantation, Department of Surgery, University
of Nebraska Medical Center], Conflict of Interest in the Procurement of Organs from Cadavers Following
Withdrawal of Life Support, in Procuring Organs for Transplant: The Debate over Non-Heart-Beating
Cadaver Protocols, Johns Hopkins University Press, Print, 1992, p 105.

The first time that the issue of conflict of interest arises is not in
contemplating withdrawal of care, but in judging that the prospective donors
condition is hopeless. For instance, imagine that the intensivist who has
grown weary of the prolonged and, to his view, agonizing deaths of so many
patients with so many horrible diseases. This physician may find more hope
in the life-saving opportunity provided by organ transplantation. If the person
in need of organ transplantation is younger, more attractive, or in some way
seems more deserving than another critically ill patient, then the conclusion
that one patients condition is hopeless can be tainted by an understanding
of the tremendous hope organ availability holds for another. To carry the
example further, once our intensivist (or other responsible physician) has
decided that a patients condition is hopeless, he has to work through exactly
which measures can be withdrawn without causing suffering. For example,
the physician often must decide whether removing the ventilator from a
ventilator-dependent patient will cause the patient to suffer. It will lead to
death by hypoxia or hypercarbia, and the obvious concern is that if the
patient can feel the symptoms of either of these syndromes, substantial
suffering, even terror, can result.

Physicians may administer drugs that decrease comatose

patients viability for transplantation, thus prolonging
suffering.
Byers W. Shaw 92, [professor of surgery and chief of transplantation, Department of Surgery, University
of Nebraska Medical Center], Conflict of Interest in the Procurement of Organs from Cadavers Following
Withdrawal of Life Support, in Procuring Organs for Transplant: The Debate over Non-Heart-Beating
Cadaver Protocols, Johns Hopkins University Press, Print, 1992, p 106.

We should pause to recognize the potential existence of another conflict of

interest that could also be harmful to the patient from whom treatment is
withdrawn. If the physician in charge of the withdrawal of treatment harbors
negative feelings toward organ donation or transplantation, he may
administer drugs in a manner that decreases their viability for
transplantation. For example, one could prolong the period of hypotension
and acidosis by occasional reduction in the doses of sedatives or the
judicious use of sodium bicarbonate to counteract acidosis. Such measures
might seem justifiable if intended to prevent sedation from leading directly to
the patients death. What might on the surface be viewed as entirely proper
may have its roots in a deeply felt desire to prevent the use of the organs for
transplantation. The more disturbing aspect of this misdirected approach,

however, is that it might prolong the critically ill patients suffering, to say
nothing of making a spectacle of the entire proceedings.

Cardiac Death

Cardiopulmonary Criterion of Death

Death should be defined as a purely biological concept in
cardiopulmonary function is the sole criterion.
George Khushf 10, [University of South Carolina], "A Matter of Respect: A Defense of the Dead Donor
Rule and of a "Whole-Brain" Criterion for Determination of Death," Journal of Medicine and Philosophy, 35,
330-364, 2010.

The second strand of criticism comes from those who advance a nonbrain
criterion or, more positively stated, who advance cardiopulmonary function as
the sole criterion. At the time of the Presidents Commission (413), this
position was regarded as the traditional or romantic concept (Veatch, 2009,
17) of those who did not sufficiently appreciate how technology alters the
context for determining death. Today, however, it is often advanced as the
hard-nosed purely biological option (Truog, 1997, 2000, 2007; shewmon,
2001, 2009). here, I will take robert Truog as representative. For him, death is
a purely biological concept, and it occurs when the organism ceases to
function as a whole. But Truog denies any privileged role for the brain as an
organ of integration. he thinks that humans can continue to live even after all
brain function is lost. Cardiopulmonary function should then serve as the sole
criterion, and batteries of tests should be oriented toward ascertaining when
such functioning is lost. since this determination of death would push death
past the threshold where most organs are viable, Truog rejects DDr. he argues
that a genuinely biological death concept makes clear that an- other basis is
needed for determining when organs can be harvested (Truog and robinson,
2003; Truog and Miller, 2008).

Irreversibility Requirement
Cardiac death requires irreversibility of loss of circulatory
function, but current medical protocol involves declaring
individuals dead even when their vital functions could be
reversed.
Rodriguez-Arias et al 11, David Rodriguez-Arias, [Universidad del Pais Vasco/EHU], Maxwell J.
Smith [University of Toronto], and Neil M. Lazar [University of Toronto and University Health Network],
"Donation After Circulatory Death: Burying the Dead Donor Rule," The American Journal of Bioethics, 11(8),
2011.

The patient is not dead at the moment of organ retrieval because the time of
circulatory arrest is too short to ensure that cardiac arrest is irreversible.
Although this argument is based on an empirical claim regarding the
necessary and sufficient time to guarantee that the loss of circulatory
function is irreversible, the meaning of irreversible is problematic. While the
dictio- nary definition of irreversible refers to some process that is not able
to be undone or altered (Oxford Dictionaries), controlled DCD protocols have
embraced a weaker con- strual of irreversible, i.e., permanent cessation.
As we see, according to this weaker construal, individuals can be declared
dead at times where their vital functions could still be reversed. Some have
raised the suspicion that the moti- vation to abandon the standard conception
of irreversibility in controlled DCD is that the amount of time necessary to
prove such irreversibility would be sufficiently long so to damage
significantly the other organs [other than the heart], thus making them less
useful for transplantation purposes (Menikoff 1998, 158). Downie and
colleagues interpreted the term irreversible even further, as will not be
reversed without violating the patients decision or the law on con- sent
(Downie et al. 2009, 858). However, this interpretation contradicts the idea
that irreversible is a condition that does not depend on contingencies such as
availability of technical resources or human decisions and conventions.

Cardiac Death Without Brain Death

Defining death through cessation of cardiac activity is
problematic because that does not necessarily mean
cessation of brain activity.
Rodriguez-Arias et al 11, David Rodriguez-Arias, [Universidad del Pais Vasco/EHU], Maxwell J.
Smith [University of Toronto], and Neil M. Lazar [University of Toronto and University Health Network],
"Donation After Circulatory Death: Burying the Dead Donor Rule," The American Journal of Bioethics, 11(8),
2011.

The patient is not dead at the moment of organ retrieval because brain death
is not rigorously demonstrated and can only be assumed in DCD. Another
substantial problem is the possibility that a DCD donor could be declared
dead even though that per- sons brain may conserve the potential for
functioning to some extent. This concern raises the question of the relationship between brain death and circulatory death. In fact, the standard
tests used for the determination of brain death are not used in either
controlled DCD or uncontrolled DCD. Only a clinical evaluation, without
confirmatory tests, is legally required (Institute of Medicine 1999). It has been
questioned whether the waiting periods in existing pro- tocols are enough to
ensure total brain failurethat the functions of the entire brain are
irreversibly lostespecially as DCD may occur in the absence of a prior brain
injury (Menikoff 1998). In both DCD protocols, the assumption is that, in the
period between cessation of circulatory function and the determination of
death, loss of all brain function has also become irreversible (Capron 1999).
Advocates of DCD thus claim that those protocols do not violate the DDR because loss of circulation quickly results in irreversible loss of brain function if
no attempt to restore cardiac activity is undertaken (Bernat 2010).

AT Cardiac Death- Generic

The concept of cardiac death does not square with current
medical protocol.
Miller and Truog 08, Franklin G. Miller [Department of Bioethics at the National Institutes of Health]
and Robert D. Truog [Professor at Harvard Medical School], Rethinking the ethics of vital organ donations,
Hastings Center Report, Volume 38, Number 6, November-December 2008, pp. 38-46.

The practice of organ donation after cardiac death (DCD)developed in the

early 1990s to retrieve organs from dying, hospitalized patients after
withdrawal of life supportalso depends on an incoherent determination of
death. Under DCD protocols, death is declared typically within two to five
minutes of the observed cessation of circulatory function.9 At this point,
however, the cessation of circulatory function is not irreversible and thus
does not satisfy the standard cardiopulmonary criteria for death. Describing
the Pittsburgh protocol for DCD, Robert Arnold and Stuart Younger have
stated, "the heart could almost certainly be restarted by medical
intervention."10 But as Dan Brock has observed, "The common sense
understanding of the irreversibility of death is that it is not possible to restore
the life or life functions of the individual, not that they will not in fact be
restored only because no attempt will be made to do so."11 The dubious
declaration of death is needed to square DCD with the dead donor rule.