Reviving Higher Brain Death Post Review 3

Instead we attempt to revive brain death by offering a novel and more coherent standard of death based on the permanent cessation of mental processing.. WBD includes death of the brainst

Reviving Brain Death: A Functionalist View

by Samuel H LiPuma, Associate Professor, Philosophy, Cuyahoga

Community College, Cleveland, Ohio

and Joseph P DeMarco, Professor Emeritus, Cleveland State University,

Cleveland, Ohio

Samuel H LiPuma, Associate Professor of Philosophy

Cuyahoga Community College, Western Campus

11000 Pleasant Valley Road, Parma, OH 44130-5150

W: 216-987-5651, Cell: 216-337-8115

email: samuel.lipuma@tri-c.edu

Email is my preferred mode of communication

Mr LiPuma holds both Bachelors (1984) and Masters (1986) degrees in philosophy from the University

of Dayton (Dayton, Ohio) and a Certificate of Advanced Study in Bioethics from Cleveland State

University (Cleveland, Ohio) (2003) He also holds the rank of Associate Professor of Philosophy at Cuyahoga Community College in Cleveland, Ohio His current research and publications are in the areas

of palliative sedation therapy and brain death

Joseph P DeMarco, Professor Emeritus,

Email is my preferred mode of communication

Joseph P DeMarco holds an M A (1967), PhD (1969) in philosophy from The Pennsylvania State University, in State College, PA He is currently Professor Emeritus in the Department of Philosophy at the Cleveland State University, Cleveland OH, 44122 He is author or co-author of five books and of numerous articles

Please send all correspondences regarding this article to Samuel H LiPuma.

Abstract:

Currently both whole brain death (WBD) and higher brain death (HBD) have come under attack as based

on faulty reasoning These attacks, we argue, are successful, leaving supporters of both views without a firm foundation This state of affairs has been described as the death of brain death Returning to a cardio-pulmonary definition presents problems we also find unacceptable Instead we attempt to revive brain death by offering a novel and more coherent standard of death based on the permanent cessation of mental processing This approach works, we claim, by being functionalist instead of being based in biology, consciousness, or personhood We begin by explaining why an objective biological

determination of death fails We continue by similarly rejecting current arguments offered in support of HBD which rely on consciousness and/or personhood In the final section, we explain and defend our functionalist view of death Our definition centers on mental processing, both conscious and pre- or unconscious Our view provides the philosophical basis of a functional definition which most accurately reflects the original spirit and meaning of brain death when first proposed in the Harvard criteria of 1968.

I The Failure of an Objective-Biological Determination of Death

WBD, as opposed to HBD, is not based on loss of consciousness or personhood WBD includes death of the brainstem, itself suggesting that the loss of the entire brain means that the organism

as a whole cannot function The basic claim is that when the entire brain ceases, including all biological brain activity, so does all other bodily biological activity outside the brain.1 (Bernat,

2006, 38 Journal of Law, Medicine & Ethics, 2006) Defenders of WBD attempt to support their view by insisting that death is strictly a biological matter,and as such death can be verified empirically and objectively For instance, J.L.Bernat states that “…death is fundamentally a

1 Theclaim by the supporters of WBD that when the brain dies so does the organism as a whole isargued by J L

Bernat

biological phenomenon… [D]eath is an immutable and objective biological fact and not

fundamentally a social contrivance.” (Bernat, 2006, 37) In an earlier article, Bernat claims that the concept of death is the same for human beings as it is for all similar species, “As a biological phenomenon, death should apply equally to related species When we talk of the death of a man

we mean the same thing as when we talk of the death of a dog or cat.” (Bernat, Culver and Gert

1981, 390).2

A white paper offeredby the President’s Council on Bioethics: Controversies in the

Determination of Death, similarly claims that “…death must be defensible on biological as well

as philosophical grounds,” and that there is a “…biological reality of death” that must be

respected.(President’s Council on Bioethics, 2008, 50)

Basing death on the irreversible loss of biological function seems appropriate We do commonly distinguish between animate and inanimate entities on such biological grounds All animate beings, without exception, have a biological basis, and when this basis is irreversibly shut down

so too is the being as “animate.” As such it seems fitting that the death debate would be centered

on establishing a consistent biological foundation However, what emerged from this debateis that no such foundation has been established

A Alan Shewmon’s Criticisms

Shewmon argues that there are serious inconsistencies between the definition of WBD and the biologically based capabilities some patients demonstrate after being declared WBD (Shewmon,2001) Two definitions of WBD are commonly used: (1) The permanent cessation of the functioning of the organism as a whole.(Bernat, 1981, 390) (2) The irreversible cessation of all

2 Bernat also discuss this in 2006, 37

functions of the entire brain, including the brain stem.(President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research , 1981) In attacking WBD as defined in (1), Shewmon lists no fewer than 15 significant biological functions that are somatically integrative but not brain mediated.(Shewmon, 2001, 467-468) This means patients declared brain dead could still carry out, and on several occasions do in fact carry out, these functions Some of the more dramatic functions include gestating a fetus, sexual maturation, maintenance of body temperature, and wound healing These are all biological activities that occur outside the brain

Apologists for WBD react to these difficulties by qualifying their position and dismissing the counterexamples, claiming in effect that the examples are biologically insignificant in relation to the organism as a whole, and sothey claim thatfull biological death is not required However, arguments in support of these qualifications have failed to establish any meaningful demarcating

principle For example, gestating a fetus for a number of months is a notablecertainlyseems like an impressive biological accomplishment Yet for defenders of WBD this issuch important biological functions are dismissed as an irrelevant type of biological functioning with respect to determining deaththe status of the patient as being dead or alive. Supporters of the position need

to provideeffectively respond to the criticism by providing an account of what makes some biological functions relevantmore important than other functions Currently there is no such account If the account appeals to maintaining life, then it begs the question (I’m not sure how

attempt to demonstrate in a subsequent section of this paper

Veatch points out that definition (2) is violated because adeclaration of WBD is consistent with partial brain activity

The idea that functions of “isolated nests of neurons” can remain when an individual is declared dead based on whole-brain-oriented criteria certainly stretches the plain words

of the law that requires, without qualification, that all functions of the entire brain must

be gone… By the time the whole-brain-oriented definition of death is so qualified, it can

hardly be referring to the death of the whole brain any longer (Veatch, 1993, 19)

Again the problem is that a line is drawn regarding the importance of brain activities without an account what makes some activities important and some unimportant A change of language from “all functions” to “all important functions” begs the question

B The Failure of Invoking the “Organism as a Whole” Standard

To overcome the criticism that their line drawing isnot well supported, defenders of WBD, such

as J.L Bernat, emphasize the expression “…the organism as a whole…”For instance, he defines

death as “…the permanent cessation of functioning of the organism as a whole.” (emphasis

added). (Bernat, 1981, 390) Later in 2006 Bernat continues to use thatexpression to defend WBD and to criticize HBD He claims that considering the organism as a whole when

pronouncing a patient as meeting the criteria of WBD “…provides a fail-safe mechanism to eliminate false positive brain death determinations…” (Bernat, 2006, 39) Bernat, et al, define what they mean by the functioning of the organism as a whole: “The functioning of the

organism as a whole means the spontaneous and innate activities carried out by the by the

integration of all or most subsystems … and at least limited response to the environment….”(Bernat, 1981, 390) So for Bernat, the combination of the definition proposed by the President’scommission of 1981 “Irreversible cessation of all functions of the entire brain, including the brain stem” (President’s Commission, 1981, 2) combined with the notion of considering the

brain’s integrative affect on“the organism as a whole,” effectively insulates WBD from any serious difficulties raised by both cardio and HBD groups (Bernat, 2006, 39).

This turns out to be far from the case For instanceJ.McMahan is able to show that even given

with appeals to the organism as a whole, difficulties still emerge for WBD advocates McMahan argues that Bernat’s appeal to the organism as a whole is empirically based However, Shewmonshowsthat WBD does not entail cessation of function for the organism as a whole by citing

“numerous actual cases involving… brain death with artificially induced respiration in which there is a high degree of functional integration…without any central integrator at all.”

(McMahan, 2006, 38) Thus the appeal to WBD does nothave an empirical foundation and McMahan claims defenders of it must “…admit defeat.” (McMahan, 2006, 46) McMahan’s point is formidable because the empirical claim is universal: All integrative functions must stop

So to point out that there is at least one such function that can survive WBD shows that the universal claim is false

Since the appeal is not empirically sound, McMahan surmises that perhaps the point about the brain’s role in integrative functioning is meant to be conceptual “[I]t is possible for the defender

of brain death to respond to Shewmon’s challenge by interpreting the claim that the brain is necessary for integrated functioning as a conceptual rather than empirical claim.” (McMahan,

2006, 46) The argument would bethat only the brain can play the role of a central mediator because without the central mediator the organism would merely be a collection of independentlyworking parts and not anorganism as a whole Shewmon only documents independently

working parts “He (Bernat) might be saying that, even if all the organs are alive and doing their job, they cannot together constitute a living organism without the mediation of the brain.”

(McMahan, 2006, 46) This conceptualappeal also fails For Bernat’s position to work, the

required mediation of the brain should be a part of a broadly accepted concept of death

McMahan denies that there is such a concept If the brain carries out one single critical

integrative function, McMahan argues, then a person, under Bernat’s view, would not be dead

To argue against the conceptual viewpoint, as opposed to the biological point already rejected, McMahan devises a hypothetical condition to show that the conceptual view is faulty Suppose all other brain functions are mechanically reproduced, much the way that intensive care

interventions carry out somatic functions Now suppose that immediately before the remaining critical function fails, it is also mechanically replaced By the concept based argument, we would have to accept that just before replacement a person is alive but dead just after This transition from life to death is not, McMahan plausibly asserts, part of a widely shared concept ofdeath: “It is very hard to believe that such a change could make the difference between life and death in an organism, either as a matter of fact, or, especially, as a matter of conceptual

physiological functioning for the organism as a whole remained the same To push the point further and in the opposite direction, one need not even have a functioning torso at all in order to

be considered alive, as “brain in a vat” illustrations signify

Claiming death is an objective biological fact as it relates to the organism as a whole simply fails

to hold up,empirically and conceptually If it could we would not be able to separate ourselves from our organism Clearly we can as the above arguments demonstrate As Shewmon

concludes, “The point is simply that the orthodox, physiological rationale for [W]BD is precisely physiologically untenable.” (Shewmon, 2001, 474) A genuine conceptionof death then must account for the separation of our mental lives from what amounts to mere biological functioning

C The Failure of the White Paper

Another significant attempt to defend WBD by appealing to the organism as a whole appeared in

a 2008 White Paper by the President’s Council on the Determination of Death Here the authors

add to Bernat by claiming that a living person (entity) has a drive to preserve itself This drive is lost in WBD, which is why the organism as a whole is lost and is thus dead “All organisms have

a needy mode of being… To preserve themselves organisms must-and can and do-engage in

commerce with the surrounding world.” (President’s Council, 2008, 60) To this they add three fundamental capacities an organism must possess to engage in this commerce:

1 Openness to the world, that is, receptivity to stimuli and signals from the surrounding environment

2 The ability to act upon the world to obtain selectively what the organism needs

3 The basic felt need that drives the organism to act as it must, to obtain what it needs, and what its openness reveals to be available (President’s Council, 2008, 61)

The authors then argue that patients declared WBD fail to realize these fundamental capacities and so are properly identified as dead They also claim that this goes beyond Shewmon’s

account of a function such as breathing since Shewmon does not properly account for the “drive”

of an organism to breathe which cannot be replaced mechanically “But Shewmon misses the

critical element: the drive exhibited by the whole organism to bring in air, a drive that is

fundamental to the constant, vital working of the whole organism.” (President’s Council, 2008, 63)

There are three main problems with this analysis The first is that it does not properly account for the idea that the mental life of a human being is distinct from the biological life of the same human being

The second is an equivocation on the organism being “open” to the world This expression has meaningful relevance if the openness has something to do with mental processes If it merely means a mechanical/biological response to the environment with no accompanied mental

processing, it can only relate to life qua organism, not life qua human being Since we can distinguish the biological life of a human being from the mental life of a same human being, establishing life merely on biological grounds is not tenable Life for the human being must include some kind of mental processing

The third is that it is possible for an individual to have a full mental life yet have absolutely no engagement with the surrounding world If all of the biological needs of an individual could be satisfied mechanically this individual would no longer have to “engage in commerce with the

surrounding world” at all and yet would surely be alive To argue otherwise would entail the position that mental processing is not sufficient for life which leads to incongruous results, such

as the declaration of someone as dead who is conscious

The upshot of all this is that WBD has not been consistently defended Its criteria are chosen without an adequate defense against detractors, and its standards are inconsistent The insistencethat death can be verified objectively because of its basis in biology was at first thought to be a single edged sword advanced to protect it from its critics Instead it turned out to be fatally double-edged

D The failure of Cardio-Pulmonary Standard

Because Shewmon’s arguments effectively demonstrate inconsistencies in the WBD model, authors in the field have turned to defending a more traditional cardio-pulmonary standard of death Though this certainly avoids the problems inherent in brain death, it also results in

conceptual difficulties For instance, Shewmon admits that if we abandon brain death standards,

a body with absolutely no brain functioning whatsoever “…is surely very sick and disabled, but not dead.” (Shewmon, 2001, 473) To push the point further, then, we would have to consider decapitated bodies with circulation and respiration alive Miller and Truog (Miller and Truog,

2009, 186) do in fact accept this result when debating John Lizza (Lizza, J 2010) claiming this

to be merely repugnant but not absurd (Miller and Truog, 2009; Kennedy Institute, 2010)) The wide legal and social acceptance of WBD suggests that the “repugnancy” of the example is based

on the general recognition that such a person is dead Surely a sound conception of humandeath needs to rule out decapitated bodies that maintain circulation and respiration. (LiPuma, 2012).3

This whole movement is, in general, unfortunate The difficulties regarding WBD push the debate deeper into biology This exacerbates the problems Given that a general consensus has been reached on the acceptance of brain death in both the medical community and the population

at large,what is needed is an improved conceptual understanding ofbrain death, not an

abandonment of brain death altogether

II The Failure of HBD: Moving Beyond the Contributions of Robert Veatch

Up to this point we have reviewed what we take to be the main arguments supporting WBD Since we argued thatthose fail, and thatthe cardio-pulmonary standard is of no help,we turn to aconsideration ofHBD Here, too, as we shall show, arguments in favor of HBD are also flawed.Robert Veatch is often thought of as defending HBD; however, he successfully deflates the main arguments in favor of it For example, he rejects the idea that loss of personhoodis an

appropriate defense of HBD “Personhood” is not a well-defined term; as Veatch points out, the concept is used to refer to anything from all living humans to those who possess a special trait such as self-consciousness or self-awareness (Veatch, 1993, 367) “Death” is a philosophical term as well as legal term; basing a definition of “death” on a controversial and vaguely defined term such as “personality” is rightly criticized by Veatch , who concludes that “Personhood is an amazingly ambiguous term.” (Veatch, 1993, 367)

3 For more on inherent difficulties with cardio-pulmonary standards see S H LiPuma Cite the name of the article

Journal of Medicine and Philosophy, forthcoming.