Defining Death: The Case for Choice

176 Pages·2016·1.296 MB·English

by  Robert M. Veatch, Lainie F. Ross

Defining Death
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DEFINING
DEATH
The Case for Choice
ROBERT M. VEATCH
and
LAINIE F. ROSS
Georgetown University Press / Washington, DC
© 2016 Georgetown University Press. All rights reserved. No part of this
book may be reproduced or utilized in any form or by any means, electronic
or mechanical, including photocopying and recording, or by any information
storage and retrieval system, without permission in writing from the publisher.
Library of Congress Cataloging-in-Publication Data
Names: Veatch, Robert M., author. | Ross, Lainie Friedman, author.
Title: Defining death : the case for choice / by Robert M. Veatch, Lainie
Friedman Ross.
Description: Washington, DC : Georgetown University Press, 2016. | Includes
bibliographical references and index.
Identifiers: LCCN 2016001904 (print) | LCCN 2016006088 (ebook) |
ISBN 9781626163546 (hc : alk. paper) | ISBN 9781626163553 (pb : alk. paper) |
ISBN 9781626163560 (eb)
Subjects: LCSH: Death. | Brain death.
Classification: LCC RA1063 .V43 2016 (print) | LCC RA1063 (ebook) |
DDC 616.07/8—dc23
LC record available at http://lccn.loc.gov/2016001904
∞ This book is printed on acid-free paper meeting the requirements of the American
National Standard for Permanence in Paper for Printed Library Materials.
17 16 9 8 7 6 5 4 3 2 First printing
Printed in the United States of America
Cover design by Anne C. Kerns, Anne Likes Red, Inc.
For
Ann B. Veatch
and
John L. Ross
with gratitude and affection
for sharing the journey
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CONTENTS
1 Defining Death: An Introduction 1
The Emergence of the Controversy 2
Three Groups of Definitions 3
The Emergence of a Uniform Brain-Oriented Definition 4
Irreversible versus Permanent Loss of Function 5
Defining Death and Transplanting Organs 6
The Structure of the Book 7
2 The Dead Donor Rule and the Concept of Death 13
The Dead Donor Rule 16
Candidates for a Concept of Death 19
The Public Policy Question 26
3 The Whole-Brain Concept of Death 39
The Case for the Whole-Brain Concept 42
Criteria for the Destruction of All Brain Functions 45
Problems with the Whole-Brain Definition 53
Alternatives to the Whole-Brain Definition 59
4 The Circulatory, or Somatic, Concept of Death 66
Two Measurements of Death 67
Circulatory Death and Organ Procurement 72
The DCD Protocols 79
Shewmon’s Somatic Concept 83
viii Contents
The Two Definitions of the US President’s Council
on Bioethics 85
5 The Higher-Brain Concept of Death 88
Which Brain Functions Are Critical? 90
Altered States of Consciousness: A Continuum 96
Measuring the Loss of Higher-Brain Function 99
Ancillary Tests 100
The Legal Status of Death 104
6 The Conscience Clause: How Much Individual
Choice Can Our Society Tolerate in Defining Death? 111
The Present State of the Law 113
Concepts, Criteria, and the Role of Value Pluralism 115
Explicit Patient Choice, Substituted Judgment,
and Best Interest 122
Limits on the Range of Discretion 124
The Problem of Order: Objections to a Conscience Clause 126
Implementation of a Conscience Clause 137
Conclusion 139
7 Crafting a New Definition-of-Death Law 147
Incorporating the Higher-Brain-Function Notion 147
The Conscience Clause 149
Clarification of the Concept of Irreversibility 150
A Proposed New Definition of Death for
Public Policy Purposes 152
Conclusion 153
Index 157
1
Defining Death: An Introduction
There was a day when everyone could tell the difference between
the living and the dead. Over the past fifty years, that has
changed. Of course, occasional mistakes in pronouncing death have
always occurred—when a physician could not feel a pulse and pro-
nounced a patient dead only to have the heart start again. Occasion-
ally, the patient recovered enough to survive and leave the hospital.
The physician might have said something like, “I thought the patient
had died, but I was mistaken.” Sometimes the one making the state-
ment might say something a bit different. He or she might say, “The
patient died and came back to life.” Thoughtful commentators have
always understood that this is not correct. There is one death per
person, at least in this world. The more accurate observation would
be something like, “The patient suffered a cardiac arrest that we
thought was irreversible, but obviously it was not. He would have
died had not the heart started beating again.” The difference is criti-
cal because many important clinical, social, legal, and personal issues
are at stake when we pronounce someone dead. The spouse becomes
a widow; the person’s assets are disposed of; health insurance cover-
age stops (health insurance does not cover dead people). On the other
hand, life insurance pays off; the will is executed; if the deceased is
president of a country, he or she ceases to be president, and a successor
assumes the office. In medicine important implications follow as