CH A PT ER ON E

IN T RODU CT ION

I
n the late twentieth century, as a response to certain advances in
critical care medicine, a new standard for determining death
became accepted in both the medical and legal communities in
the United States and many other parts of the world. Until then, the
prevailing standard was the traditional cardiopulmonary standard:
the irreversible loss of heart and lung functions signals the death of
a human being. The new standard, which took its place alongside
the traditional one, is based on the irreversible loss of all brain-
dependent functions. In most human deaths, the loss of these neu-
rological functions is accompanied by the traditional, familiar
markers of death: the patient stops breathing, his or her heart stops
beating, and the body starts to decay. In relatively rare cases, how-
ever, the irreversible loss of brain-dependent functions occurs while
the body, with technological assistance, continues to circulate blood
and to show other signs of life. In such cases, there is controversy
and confusion about whether death has actually occurred.

There is controversy as well about the use of the traditional cardio-

pulmonary standard in the organ procurement practice known as
“controlled donation after cardiac death” (controlled D CD ). Here,
too, there is debate about whether, at the time that organs are taken,
the donor is truly dead. But, with controlled D CD , there is also a
more acute danger that the quality of end-of-life care for the pa-
tient-donor will be compromised.

The controversies surrounding both the neurological standard and

controlled D CD are the subject of this report, although the report’s
primary focus is the resurgent debate about the ethical validity of
the neurological standard. Forty years after its inception, long-
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standing doubts about the standard’s biological basis, fueled by

more recent clinical observations about patients diagnosed as “brain
dead,” have reignited the debate about the standard’s validity.

I. The H istory of the N eurological Standard for

Determining Death

It was a key advance in medical technology— the mechanical venti-

lator— that originally gave rise to the confusions and controversies
about when death occurs in a critical care setting. A review of the
history of the neurological standard for death will help to explain
why.

A. The Ventilator and the Problem of Determining Death

The mechanical ventilator externally supports the patient’s breathing

when injury or infirmity prevents the body from doing this vital
work on its own. The injuries and diseases that might lead to a need
for such support are many and varied. The incapacity to breathe on
one’s own is a common endpoint of different ailments and, of
course, a terminal one unless help can be provided quickly. Al-
though it does not treat the underlying disease, the ventilator may
stave off death, often for months or even years.

Soon after the ventilator began to be used in hospitals all over the
world, a set of ethical and philosophical complexities became evi-
dent. O ne involved the question of whether maintaining a patient
on a ventilator is always in the best interest of the patient. In many
cases in which a patient has suffered a devastating injury that leaves
him or her unable to breathe spontaneously (that is, without exter-
nal assistance), there is little chance that use of a ventilator will lead
to much improvement in the patient’s condition. The reason for
this is that an inability to breathe spontaneously is often the result
of a very serious injury to the brain. Saving a patient from death
after such an injury turns out, in many cases, to be an ambiguous
sort of success. This ambiguity often leads physicians and patients’
loved ones to decide that death should be allowed to come even
when the ventilator is capable of putting it off for a time.1