Reviving Higher Brain Death Post Review 3

1 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, Department of Philosophy Cleveland State University Cleveland, OH 44115 H: 216-752-2584, Cell: 216-536-9165 email: j.demarco@csuohio.edu 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 3 Introduction: Currently both whole brain death (WBD) and higher brain death (HBD) have come under attack These attacks, we argue, are successful, leaving supporters of both views without a firm foundation This state of affairs has been dramatically described as the death of brain death (Veatch, 2005) Returning to a cardio-pulmonary conception presents problems we also find unacceptable Instead we attempt to revive brain death by offering a novel and more coherent conception 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 conception 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 human death 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 (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 The claim by the supporters of WBD that when the brain dies so does the organism as a whole is argued by J L Bernat 4 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 offered by 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 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 debate is 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 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 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 so they claim that full 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 notable certainly seems like an impressive biological accomplishment Yet for defenders of WBD this is such important biological functions are dismissed as an irrelevant type of biological functioning with respect to determining death the status of the patient as being dead or alive Supporters of the position need to provide effectively respond to the criticism by providing an account of what makes some biological functions relevant more 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 this point helps us.) If the account appeals to the organism as a whole that is also faulty as we attempt to demonstrate in a subsequent section of this paper Veatch points out that definition (2) is violated because a declaration of WBD is consistent with partial brain activity 6 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 is not 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 that expression 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’s commission 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 instance J 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, Shewmon shows that 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 not have 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 be that only the brain can play the role of a central mediator because without the central mediator the organism would merely be a collection of independently working parts and not an organism 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 conceptual appeal 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 of death: “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 necessity.” (McMahan, 2006, 46) Another related problem for WBD advocates is their inability to distinguish or recognize the significance of mental processing over mere biological functioning We often make this distinction, as highlighted in cases of dicephalus twins in which two heads share one body There is no debate that such cases involve two people, yet they share one body (Abby and Brittany Hensel citation-two people-separate birth certificates, ss numbers, etc.) Here McMahan properly concludes that these are “…cases in which a single organism supports the existence of two distinct people.” (McMahan, 2006, 47) Generally, the public accepts that there are indeed two distinct people because we emphasize mental processing over biological functioning Further ramifications of this position help clarify the point If one of the twins were to lose all capacity for mental processing, that twin would be considered dead even if all other 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 conception of 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: Openness to the world, that is, receptivity to stimuli and signals from the surrounding environment The ability to act upon the world to obtain selectively what the organism needs 10 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 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 11 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 insistence that 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) 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 12 on the general recognition that such a person is dead Surely a sound conception of human death 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 of brain 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 that those fail, and that the cardio-pulmonary standard is of no help, we turn to a consideration of HBD 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 personhood is 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) 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 13 Veatch also takes on all of those who link the definition of “death” to consciousness, awareness, self-consciousness, and other similar terms, labeling the view as “mentalist.” Does he that, Sam? We agree that basing the definition of death on consciousness is mistaken We now know that much of mental functioning depends on brain activity that is at the pre-conscious or unconscious level For one example of pre-conscious brain activity in support of human decision-making, Jonathan Haidt points out that moral intuitions are the result of a “largely unconscious set of interlinked moral concepts.” (Haidt, 2001, 825) Antonio Damasio describes a neurological disease, epileptic automatism, in which patients apparently lose consciousness for a few seconds, maybe as much as a minute (Damasio, 1999) During this time the patient apparently remains awake, and may be able, for example, to drink from a glass All the while, “The contents that make up the conscious mind would have been missing….” (Damasio, 1999, 98) Not only does an appeal to consciousness overlook non-conscious mental activity, but it also appears to bypasses crucial emotional responses To disregard much of human higher brain activity involved in mental functioning requires a theory about why only conscious activity matters when other mental activities are crucially important HBD is about more than losing consciousness; it is also about losing non-conscious processes and emotional processes as well Centering on consciousness does not necessarily argue in favor of HBD since it is too narrow It also leads to charges that too much brain activity is left unconsidered by the arguments in favor of HBD labeled “mentalist” by Veatch (Veatch, 1993, 368) I don’t’ understand how this sentence relates to the content of the previous sentences The key problem is that Veatch, thought to be a supporter of HBD, has soundly criticized extent views of virtually all the supporters of both WBD and HBD But Veatch is undaunted by the 14 problems of his adversaries His own view is meant to overcome their problems in a way that he believes to be socially, morally, and philosophically acceptable Veatch believes that deciding when death occurs depends not on biology, but on views about when a human loses full moral standing “[T]he definition of death debate was never about a biology class It would never capture the fascination of lawmakers, judges, clinicians, and the general public if all that was at stake was some abstract material for a biology textbook What is at stake is a crucial matter of morality and public policy: when humans have full moral standing and when they lose it.” (Veatch, 1993, 364-365) At the precise point that the loss of full moral standing occurs, Veatch believes that a human dies He argues that this happens when the functional integration of the body and mind is lost, which means that loss of one or the other counts as death In our view he rightly points out that death is not just about biology; nevertheless, we not agree with his view that the point of death comes when full moral standing is lost Support for his integrationist view, he claims without further explication, comes from the Judeo-Christian tradition and what he refers to as its “secular analogue.” (Veatch, 1993, 364) Some would object that his position goes beyond a traditional religious view because death for him includes loss of consciousness without loss of other bodily functions Regardless, a key problem with his position is that the meaning of the loss of “full moral standing” is not explained If the view depends on being able to make moral judgments, then that seems to have little to with the concept of “death.” It might be that by “full moral standing” Veatch has in mind how a person is viewed in the moral community [Footnote: this point is based on a remark of an anonymous reviewer.] One might believe that a human who commits heinous actions (as heinous as one might imagine) losses full moral standing Yet no one, probably including Veatch, would claim 15 that such a person is dead As a moral view, the idea of losing full moral standing is bound to be at least as controversial as a view of death based on personal identity We have been claiming that Veatch supports HBD Actually, his support is complex He views it as a virtue that he believes loss of full moral standing happens when, and only when, there is a loss of the integration of the body and the mind This suggests that a simple loss of consciousness does not count as death for him Notice, however, the integration Veatch refers to is a conjunction For Veatch, loss of consciousness, by itself, constitutes death Veatch claims: “Without consciousness, something absolutely crucial to our existence is missing There cannot be an integrated human organism as a whole although there may well be a somatically integrated component of the human.” (Cite) Although loss of consciousness with a largely functioning body is possible, and would be counted as death, Veatch in effect rejects the idea of a functioning mind without a body He calls that “totally hypothetical,” which should be of no concern (Veatch, 1993, 370) Since, loss of consciousness is always, except in science fiction, involved in his notion of death, we believe that his position is functionally equivalent to HBD Although Veatch rejects “mentalist,” arguments, relying instead on moral standing, his position is at least partially “mentalist” because he claims that when consciousness is lost, a person is dead Recall that he attacked those who base their view on conscious, an attack we endorsed The argument made against the mentalists, who rely on consciousness, thus applies equally well to Veatch We find fault with Veatch for the same reasons we reject reliance on consciousness as the mark of death We also reject his use of the “organism as a whole,” as we previously argued Nevertheless, the result of our critique is unfortunate We support HBD, but we appear to end up without any acceptable argument in favor of either WBD or the HBD position that we support 16 III Death as the Permanent Cessation of Mental Processes: A Functionalist View: While we believe that HBD is a better standard than WBD, any defense of HBD also defends, a fortiori, WBD, or at least the claim that a person is dead when the whole brain dies Nevertheless, we believe that the quick consensus of WBD as a legally appropriate standard makes best sense based on HBD That is, we suspect that public and political support for WBD is based on the fact that most people associate brain death with lack of mental function rather than biological function With HBD, a person might retain much biological functioning but would be void of all experiential life and mental functioning This may be due to the biological death of the upper brain Such a state is experientially and mentally indistinguishable from not existing at all From a mental perspective, cremated ashes have equal awareness It is only from an external perspective that there is a meaningful difference between cardio-pulmonary death and HBD To keep such a body functioning with elaborate medical care seems to use the body as a means solely to the purposes and desires of others It certainly can serve no purpose for the HBD patient The main arguments in favor of WBD deny the unique importance of mental functioning Instead, those arguments place primacy on biological functioning devoid of mental functioning Our analysis of the debate about WBD shows the central problem with such reliance on biological functioning: the body may continue to function biologically even after the brain has stopped functioning The recourse has been to propose a basically unsubstantiated point beyond which biological functioning is said not to count Given that to declare a person dead a line needs to be drawn, we think it makes best sense to draw the line at the place where mental 17 processes cease This the is the conceptual viewpoint; diagnostically, it may depend on the cessation of the biological processes that support mental functioning We learn from the debate on WBD that the choice of the defining features of death is not based solely on a matter of fact The declaration of death is based on considerations that go beyond biology There is no way to prove that one conception is better than another; ultimately, the moral and legal standard of death is based on wide-spread acceptance of a conception of death The wide acceptance of the legal WBD definition, we believe, is based upon the common sense idea that when a person no longer has any mental life then that person is no longer alive in any meaningful way We offer the following case to indicate the intuitive appeal of the claim that HBD is the proper concept of death A The Case of Jim and Brain Destruction: Suppose that a relatively healthy 25 year-old male named Jim has decided that he can no longer tolerate his existence He has been in chronic pain for a number of years, and no therapy has been able to provide satisfactory relief It is unlikely that his condition will result in his death, yet because Jim considers his situation unbearable, he has seriously considered ending his own life After reflecting on his options, Jim realizes that if he commits suicide then it may cause distress for many of his loved ones He knows that there is a predominantly negative moral outlook in our culture with respect to controlling the time and means of one’s death Furthermore, he believes that causing his own death will violate his religious faith So he does something fairly ingenious He invents a machine that destroys his entire brain, except for his brain stem, while preserving all of his biological functioning until he dies from some other 18 naturalistic cause In this way all of his chronic pain is alleviated since with only his brain stem intact it will not be possible for him to have any conscious/mental experiences He has also not committed suicide because he is not WBD Furthermore, the damage done by the machine to Jim’s brain is irreversible making his condition, for all intents and purposes, permanent Jim is also concerned that he will be accused of hastening his death To guard against this he has fixed his machine so that it keeps him completely nourished and hydrated It also protects him from becoming infested with bedsores by turning his body at regular intervals Furthermore, it keeps him in physiological shape by exercising his muscles, cleaning his wastes, and changing his clothes All in all, his physiological condition is as good as many persons going through the aging process Jim ends up living this way until he is 85 years old at which time he dies from congestive heart failure For 60 years he had not one mental process occur, nor could any other human being (loved one or otherwise) interact with him in any mutually meaningful way Of course one could touch and talk to his body, but these acts would be met by Jim unresponsively He was merely a biological entity with no experiential connection to his environment Jim achieved exactly what he wanted He had no conscious or subconscious processes, not even dreams He had no mental life whatsoever From his perspective, through the destruction of his entire brain other than his brain stem, his existence was much like that of cremated ashes By permanently destroying his mental life for 60 years, he destroyed his human existence, i.e., his mental life Jim did commit suicide with his actions because the machine destroyed his upper brain (by eliminating all mental processing) through to his complete biological death In 19 retrospect, it does not matter that Jim persisted with a functioning biology for many years and ultimately died biologically of a naturalistic cause What does matter is that he intentionally and permanently eliminated his mental functioning The date of his intentional and permanent elimination of all mental functioning accurately marks Jim’s death The rest is merely the process through to complete biological death Normally this process is relatively short For Jim it ended up being 60 years, but his move to permanent nonconsciousness marked the beginning of the process Perhaps this is why the Crzuans’ family chose to mark her tombstone with not just one death date, but with a date where Nancy “Departed…” which was the day she suffered irreversible anoxia Notice that by the two conceptions of death that constitute the received views Jim would have to be considered alive Whole brain death includes the brain stem, which for Jim is perfectly intact Cardio-pulonary definitions are obviously satisfied since Jim’s biology is mainly intact To claim such an entity as Jim is alive qua human goes against our intuitions of what constitutes human existence Jim is less alive than even a plant in terms of Jim’s ability to interact with his environment What we claim is that biology plays practically no role in determining human life What does determine human life is mental activity In the absence of all mental activity there is no human life Both current received views are flawed in that they allow for biological life to determine what count as human life While biology may properly reflect a general use of the term “life,” it should not determine what counts as human life If a person has been permanently reduced to a merely biological entity then that person has died (Footnote:It might be thought that the logical outcome of our position is that we should count extreme medical circumstances involving futility as death (This point was suggested by an anonymous reviewer of and earlier version of this paper.), the claim was made that what we should be determining is a point 20 of futility rather than death Though there are merits to this position, and it may ultimately lead to some of the same of the same kinds of pragmatic actions surrounding determinations of death as our position, it does not properly account for all actions, such as organ donation, since we not recognize the moral legitimacy of transplanting organs from patients deemed to be in futile states rather than death dead states based on our view Furthermore, we feel believe it would be more difficult for the general public to accept a notion of futility, which demands the cessation of all treatment and the justification to harvest organs, than would be entailed in a determination of death Added to this, the concept of futility is notoriously difficult to define and apply We thus feel justified in pursuing a determination of death rather than futility.) This is what proponents of upper brain death should be arguing This is why Jim’s action to destroy his entire brain and leave only his brain stem is most accurately characterized as a suicide B Death as the loss of Mental Processing Our view is that when all mental processing stops, a person is dead This view supports HBD However, our view is not equivalent to HBD; in fact, it has significantly different implications To explain the difference we offer a fuller account of our position By a mental processing (MP) we mean such things as solving problems, desiring, observing, evaluating, deciding, learning, remembering, memorizing, judging, enjoying, suffering, storing information, retrieving information, dreaming, fearing, loving, sensing a self, feeling, sensation of spatial location, and so on Some of these, possibly most, not require consciousness, but are often, perhaps typically, unconsciously performed The empirical evidence is clear that people may often, for example, observe something without knowing that we are observing it In fact, unconscious mental processing of information is thought to be extensive (Naccache, 2001) 21 We leave as an open question the extent to which consciousness is required for any particular mental activity When all MP is permanently lost, we claim that the person is dead This view depends on the loss of function and not necessarily on the loss of biology For example, a person continuously sedated until biological death (CSD) died at the point of sedation (LiPuma, 2012).4 Little or no biological function is lost in CSD, yet the person is dead from our functional perspective Our view tends to support HBD and WBD Under either of these conditions it is probably the case that all MP ceases However, if it turns out that loss of all higher brain activity while the brainstem remains functioning is consistent with MP, then our view would be inconsistent with HBD Furthermore, if it turns out that loss of part of the brainstem entails loss of all MP, as suggested by J Parvizi and A Damasio, then in our view such a loss would constitute death, even while higher brain biology remains intact (Parvizi and Damasio, 2001) While we have sympathy with the views of Veatch, our position is significantly different from his First of all, we not rely on the notion of full moral standing Secondly, we reject the idea that loss of consciousness is a defining point of death Our concept of mental processing takes into account non-conscious experience as well as conscious experience We believe that the richness of human non-conscious experience makes it difficult to defend the claim that a person is dead simply when conscious experience ceases We not claim to know when all MP ceases Our view instead offers a theoretical conception of human death, one that we believe avoids problems found in other views and in the defense of We say “died” because we only know that CDS was carried through at the occurrence of biological death See LiPuma, forthcoming, for arguments regarding the equivalence of continuous deep sedation (terminal sedation) and death 22 those views We differ from both HBD and WBD in ways that makes our proposal unique Our view is functionally based and is not biologically driven We not restrict loss of mental processing to loss of biological brain function, even though mental functioning may depend on biological functioning We presume that much of the higher brain activity does not contribute directly to mental processing In our view a person is dead when he or she loses enough brain tissue so that all MP ceases We call our view of death a “functionalistic view”; by this we mean that when MP ceases, no matter what the underlying cause, the person is dead IV Conclusion We avoid problems inherent in all current standards of death from cardio-pulmonary through to WBD and HBD We not have to consider decapitated persons with circulation and respiration as alive as the cardio-pulmonary supporters must We avoid difficulties associated with WBD since we are not tied to biology nor we draw an unwarranted line in the sand regarding biological functioning We also avoid classic problems inherent in most HBD views since our view is not based on consciousness or personhood Very young children may lack consciousness, yet appear to have MP If death is based on loss of consciousness, then, by definition, such children may be considered dead We not believe that life is devoid of value, for children or for that matter to animals, without the capacity for consciousness just because they are not conscious of their value What the original Harvard criteria established was not a biological foundation of death based on irreversible cessation of the entire brain Rather, it properly appealed to our intuition that the demarcating principle of life and death for human beings is the potential for mental life When this can no longer be sustained a human being has died The biological functioning that may 23 persist after this event is appropriately not mistaken for human life The general public recognizes this Why else would such quick consensus be reached on such a radical reformulation of death as occurred in WBD? Obviously, much of our biological functioning does not matter to the general public or no one would have been able to accept WBD in the first place WBD allowed us to recognize, articulate, and put into legal practice that it is not our beating hearts and breathing lungs that distinguish life from death It is mental life that matters, and WBD destroys mental processing Defining death in terms of the permanent cessation of all mental functioning more accurately reflects this general intuition It may be argued that our view is not about “death” but instead about what makes a life distinctively human, the death of a human life We agree with Veatch that death is a social concept, and so we argue that from a social perspective a person is dead when mental processes cease However, we would no strong disagreement with labeling it instead as the death of a human life This last sentence needs to be clearer I tried to edit it, but I am not sure how you want to reinforce the point made in the previous sentence Good The time has come to recognize death in such cases is the real intuitive appeal behind WBD This move, rather than hairsplitting over biology, should be at the center of the death debate REFERENCES Bernat, J.L 2006 The Whole-brain concept of death remains optimum public policy Journal of Law, Medicine & Ethics 34(1): 35-43 Bernat, J L., C M Culver, and B Gert 1981 On the definition and criterion of death Annals of Internal Medicine 94: 389-394 24 Damasio, A 1991 The Feeling of what happens New York: Harcourt, 96-101 Haidt, J 2001 The emotional dog and its rational tail: A social intuitionist approach to moral judgment Psychological Review 108(4): 814-834 LiPuma, S.H Terminal sedation as physician assisted suicide/euthanasia Journal of Medicine and Philosophy, forthcoming Lizza, J 2010 Commentary on the incoherence of determining death by neurological criteria Kennedy Institute of Ethics Journal 19(4): 393-395 McMahan, J 2006 An Alternative to brain death Journal of Law, Medicine & Ethics 34(1): 3543 Miller, F.G., and R D Truog 2009 The incoherence of determining death by neurological criteria Kennedy Institute of Ethics Journal 19(2): 185-193 Miller, F.M., and R D Truog 2010 The incoherence of determining death by neurological criteria: Reply to John Lizza Kennedy Institute of Ethics Journal 19(4): 397-399 Naccache S and L Naccache 2001 Towards a cognitive neuroscience of consciousness: Basic evidence and a workspace framework Cognition 79: 1-37 Parvizi, J and A Damasio 2001 Consciousness and the brainstem Cognition 79: 135-159 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research 1981 Defining death: Medical, legal, and ethical issues in the determination of death Washington DC: U.S Government Printing Office, President’s Council on Bioethics 2008 Controversies in the determination of death, Washington, D.C.: President’s Council on Bioethics, 50 D.A Shewmon 2001 The Brain and somatic integration: Insights into the standard biological rationale for equating ‘Brain Death’ with death Journal of Medicine and Philosophy 26: 457-478 Veatch, R M 1993 The Impending collapse of whole brain definition of death Hastings Center Report 23(4): 18-24 Veatch, R.M 2005 The Death of whole-brain death: The plague of the disaggregators, somaticists, and mentalists Journal of Medicine and Philosophy 30: 353-378  ... determining death by neurological criteria Kennedy Institute of Ethics Journal 19(4): 39 3 -39 5 McMahan, J 2006 An Alternative to brain death Journal of Law, Medicine & Ethics 34 (1): 35 43 Miller,... original spirit and meaning of brain death when first proposed in the Harvard criteria of 1968 3 Introduction: Currently both whole brain death (WBD) and higher brain death (HBD) have come under... acceptance of brain death in both the medical community and the population at large, what is needed is an improved conceptual understanding of brain death, not an abandonment of brain death altogether