Up until the mid 20th century, the determination of death was straightforward; a person was dead when respiratory and circulatory function ceased. With the advent of modern medical technology, it became possible to support individual organ systems, even when others failed. While people previously had died all at once (including respiration), they now could be maintained on ventilators even though the part of the brain that controlled respiration might be destroyed. Not coincidentally, the need to harvest organs for transplant helped prompt reassessment of the determination of death. The Presidentís Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research described a "whole brain standard" which became the basis for the Uniform Determination of Death Act which was either enacted or acknowledged in case law by all states.
As articulated by Bernat, Culver and Gert (1981), the definition of death was the "permanent cessation of functioning of the body as a whole." The criterion for determining this was "permanent cessation of functioning of the entire brain," (including brainstem) and the tests used to meet this criterion could either be cardiorespiratory or neurological. By this formulation, determination of death was a strictly technical assessment (by physicians). In practice, this was problematic because some individuals still hold to a heart-lung standard on religious grounds. It has been difficult to override this claim when it is made, and one state (New Jersey) has even passed legislation granting an exception to brain death on religious grounds (Olick). New York has not gone quite so far, but recommends that such beliefs be accommodated. The New York State Task Force on Life an the Law examined the questions raised by persons who object to the brain death standard on religious or moral grounds. The Task Force recommended that "responses to individuals with religious or moral objections would best be addressed by health care facilities at the community level." It therefore proposed that "hospitals should develop policies, in consultation, with community representatives, that would reasonably accommodate the beliefs of those who reject the brain death standard on religious or moral grounds." In July 1987, the New York State Hospital Review and Planning Council adopted the regulations developed by the Task Force.
Perhaps a larger problem occurs when families demand continued support despite a determination of death, because of grief, denial, or the simple fact that their loved one looks no different than the day before death was determined. When they see a warm body and a beating heart, neurological explanations about brainstem function are often not persuasive. Furthermore, health care providers often complicate matters by failing to correct misconceptions of families or to even give them the impression that it is their decision (similar to decisions to forgo life sustaining treatments).
Some bioethicists have never accepted the concept of brain death and have promoted a "higher brain" standard by which only cerebral function must cease (Veatch). Those with absent cerebral function, but intact brainstems (as in PVS) would be considered dead by such a standard. Even among those who have accepted the whole brain standard, there is a groaning uneasiness with it. Some have proposed a "sliding scale" for determining death (based upon the action to be taken). Thus, one might decide death has occurred for the purpose of organ harvest, but not necessarily for other purposes (Halevy and Brody). Others have opted for a more consistent approach which (ironically) would return to heart-lung standards, but coupled with a shift in the ethical acceptability of harvesting organs from the "living" (Truog, 1997).
Despite such criticism, there is still some conceptual support for whole brain death based upon the fact that its determination coincides with traditional determinations, if there were no ventilatory support. It is consistent with prior beliefs because pre-ventilator era patients declared dead by heart-lung criterion would also be considered dead by whole-brain criterion (as evidenced by a lack of spontaneous brain stem function). Conversely, pre-ventilator patients felt to be alive (e.g. permanently unconscious, but breathing spontaneously) are also alive by whole-brain criterion.
For the foreseeable future, brain death is likely to be with us, and is still currently a legitimate standard for the medical determination of death in all states. While remaining sympathetic and empathetic, one should exercise precision and firmness in dealing with families, and avoid language that suggests "permission" is being requested.
This report is also available via the NYS Health Department web site.