Criticizing brain death pisses people off

The controversy about brain death really pisses some people off. Doctors, in particular, are likely to reject the idea that there is anything controversial about it at all. “Dead is dead,” they say, as if any idiot would know that life and death are binary options, that one is, of course, either “alive” or “dead,” and that the odd and somewhat arbitrary agreement that we reached fifty years ago, based on the recommendations of an ad hoc committee of mostly middle-aged white men at Harvard, was the last word.

The reasons for this intransigence are clear and were clearly stated by the Harvard committee. First, we want to spare family members the emotional agony of decision to withdraw “life-support” from their loved ones. Second, we need organs for transplantation and it is unseemly to procure beating hearts from living people. So, instead, we defined as “dead” certain people who had previously been thought of as living and, in those less contentious times, every state legislature agreed that the Harvard criteria (more or less) would be encoded into law and that the doctors’ assertion that “dead is dead” would be enforced by the power of the state. Except it wasn’t. When families have the temerity to question the new consensus, they usually win. Judges cave. They allow ventilator support to continue.

Beneath the apparent societal consensus, many wise heads have toiled to explain why, exactly, death should be defined by the loss of brain function rather than, say, the loss of heart or lung or liver function. Is the brain the seat of the soul.

Twenty years ago, the President’s Council on Bioethics wrote a searching inquiry into the philosophical basis for the concept of brain death. Their nuanced conclusions were that current criteria for diagnosing brain death were acceptable, meaning that patients who met those criteria were, in fact, dead. But that the reasons given in the past for that conclusion were problematic. They noted, “Until now, two facts about the diagnosis of total brain failure have been taken to provide fundamental support for a declaration of death: first, that the body of a patient with this diagnosis is no longer a “somatically integrated whole,” and, second, that the ability of the patient to maintain circulation will cease within a definite span of time. Both of these supposed facts have been persuasively called into question in recent years.”

Instead, they proposed the following justification: “A living organism engages in self-sustaining, need-driven activities critical to and constitutive of its commerce with the surrounding world. These activities are authentic signs of active and ongoing life. When these signs are absent, and these activities have ceased, then a judgment that the organism as a whole has died can be made with confidence.”

Now, a new commission is once again examining the fundamental questions that swirl around our definitions of death. A report in Nature about that commission has the following very curious sentence, “Some observers fear that the doubts and narratives sown throughout the process could have a lasting effect on state laws and on public perception.”

Doubts can be sown. But are narratives sown? It seems that narratives are told or sung or acted out. Some narratives themselves are sowing doubts,. The controversy over brain death is a controversy over which stories may permissibly be told and which are "misinformation." In this, the debate about brain death mirrors larger debates about whose stories matter and whose should be permitted in the public square.

Let's just admit it: brain death is not even plausibly biological death. It does not, as Truog and Miller note "cohere with any biologically plausible definition of death.” Instead, it is a useful social construction built on a fundamentally untrustworthy narrative. It rests on a very shaky social consensus. In fact, as Shah and colleagues have shown, most people don’t understand the biology, the law, or the medical practices that surround brain death and organ donation.

That is about to change. All indications are that the commission that is trying to revise the legal definition of death is not going to be able to come to consensus. As with so many other bioethical issues – think abortion, assisted suicide, or treatment of gender dysphoria – the determination of death is likely to vary from state to state. (It does now, to a certain extent.) That is a good thing. Gone are the days when we could impose controversial bioethical policies from on high. The messy political process is, in the end, the best process in our messy democracy. As Churchill once noted, democracy is the worst form of government, except for all the others.