24th May 2017

The Death of the Brainstem: Should Each Person be Permitted to Define Death for Themselves?


Ex Aula - Logo4-cropped

Jake White,  Law

Established understandings of when death occurs have been critically undermined by technological advancement and medical innovation. Conceptions of what ‘it’ is that is constitutive of human life has been destabilised as medical intervention makes possible the continuation of major organs that would otherwise succumb to failure. Where a patient is in a state of an absence of consciousness, and being kept alive artificially, defining when death occurs has immense legal and ethical consequences. Furthermore, delineating when death occurs is imperative to the successful transplantation of organs, in the context of massive organ donation shortages in the UK.

The traditional definition of death in the UK and other European countries rested on the irreversible cessation of an individual’s breathing and heartbeat. On the basis of the confirmed and persistent absence of these vital signs a person would be declared dead. This declaration became untenable with the introduction of heart-bypass and assisted ventilation machines, where the biological functions of the heart and lungs could be maintained artificially. Since the delivery systems of these organs can be replaced, they can no longer be held to be constitutive of human life and thus determinative of death.

As formally held in 1993 by Lord Kinkel in the House of Lords case of Airedale NHS Trust v. Bland, in the eyes of the medical world and of the law, a person is clinically dead when their brainstem permanently ceases to function. The constructed point of death draws a clear line from which a number of socio-economic consequences can emanate, like the transplantation of organs and the withdrawal of artificial means of keeping a person alive (medical resource allocation is particularly pertinent in times of strain on the NHS). Importantly, when a person is considered legally dead also has relational impacts on families and friends of the deceased, affecting their grieving processes. From these perspectives alone, the importance of when death is defined cannot be understated. Is ‘brainstem death’, though, the most appropriate point at which to draw that line?

It is supported widely in the medical community, but many academics don’t agree. Defining clinical death as when the brainstem dies could be considered essentialist, in that it construes the brain as the organ that makes individuals ‘human’. It overlooks a relational picture that recognises the interaction between the brain, the body, and the social and natural world. Additionally, it is a common observation in ICUs that, where a patient is in a state of coma and attached to a ventilator, functions – like homeostasis of a variety of mutually interacting hormonal processes, and the growth of nails and hair – continue from the body, despite death of their brainstem. The continuation of such functions don’t accord with every day conceptualisations of what death ‘is’, and is indicative of the strain medical advance – and its maintaining of organ performance – is having on definitively holding when death occurs. There are also issues with the reliability of tests assessing brainstem death in patients which has cast doubts upon its efficacy as being the determinative test for a person dying.

There are other proposed definitions of when death occurs – end of consciousness and ability to socially interact; death of every cell in the body; loss of higher neural functions – though all are variously contested, debunked or rejected.

On this basis, and given the philosophical, cultural and spiritual inclinations that form a constitutive role for individuals in ascribing meaning to death, we might be tempted by arguments that advocate for individuals to define their own meaning of death – where each person is to decide what they would like the definition of death to be for them. Supporting such a view, bioethicist Alireza Bagheri has powerfully written: “how is it ethical to pronounce somebody’s death based on a controversial and doubtful basis and against the person’s own beliefs and values?”. He advocates that individuals be allowed to choose a single definition of death among ‘socially accepted alternatives’. Within this, Bagheri indicates that brainstem death would be an accepted alternative for human death among other conceptualisations, which an individual may choose to accept or reject.

Such a position is problematic in its emphasis on the personal. It potentially overlooks relational interests between the individual and others, including their relatives, doctors caring for the dying, and society in general. An example of a subjective and individualised construction of death may be that it does not occur until one has been kept alive artificially for as long as medically possible, perhaps in the desire for advances in that time to surface which will bring that individual ‘back to life’. Such a construction would be an affront to communitarian, societal and collective interests in those medical resources during that time having to be shared; it would also be an affront to clinical indications where providing such life-sustaining treatment ceases to benefit the patient.

Furthermore, who should be determinative of definitions of death that are ‘socially acceptable’? It is conceivable that conceptions of death, for individuals that are informed by deeply-held religious or spiritual beliefs, would be bizarre on an objective analysis – would they be excluded as acceptable definitions?

Clearly, there are issues around an individualised determination of death. Where to draw the line, then?

Biophysicist Pak-Lee Chau and legal academic Jonathan Herring in their paper on the subject maintain a view I am sympathetic with: that there is ‘simply no “correct” answer’ – death is impossible to define in a modern sense. From this perspective, it may be more beneficial to focus on particular questions that form interims within the dying process – for example, the appropriate time at which to authorise the burial of bodies, or when organs can be transplanted from one body to another. A deconstruction of death into a process more accurately reflects dying in a modern context, with medical and technological advances. The scientific prospects of dead tissue regeneration through stem cell use, of the transplantation of human heads onto donor bodies, and of the cryo-preservation of ‘dead’ bodies serve to highlight the mutability of death as one delineative event. The law could instead govern exactly what may be done to a body at different intervals of the dying process. Regulating such intervals could be thus better informed by medicine, philosophy and wider community concerns, and enjoy a consensus that death, in its current emanation, does not.

Recent Research Highlights

5th December 2018

Václav JANEČEK: ‘Ownership of Personal Data in the Internet of Things’

Data Protection?

In light of the recent developments in data protection laws around the world, Ex Aula is delighted to present a short video that examines the implications of data protection rights. Aimed at a non-specialist audience, DPhil student Václav Janeček discusses his work (published in the journal ‘Computer Law and Security Review’) on data ownership in the context of EU […]

Read More…

25th March 2018

Caricaturing Terror

How does one draw tragedy? How can terror be depicted without trivialising the sorrow of those who suffered from it? In Pakistan terror is not something one can caricaturise, when the terrorist can be present a few metres from you, ready to detonate a bomb in the centre of your hometown [1]. When you cannot […]

Read More…

11th March 2018

Molecules that make you think: using genetics to understand our emotions

The most common question I’ve been asked when introducing my work to strangers, friends, and Tinder dates has been “but aren’t mental illnesses…in the mind? What do genes or molecules have anything to do with it?” The answer is, in short, everything. Each of our mental functions is fundamentally rooted in biological processes that can […]

Read More…

4th March 2018

Romance Comic Books, the Cold War, and Teaching Women Their Place

I came across romance comic books by accident during a tiring Google search for a topic for a term paper. At first, I thought romance comic books were a joke – that a modern artist had created them to make fun of 1950’s domestic ideals. Then I found out that Captain America creators, Joe Simon […]

Read More…

18th February 2018

Coming Up For Air: 100 Million Years of Ocean Biology

  George Cuvier was a young man at the Storming of the Bastille in the summer of 1789. It was under the shadow of the French Revolution that he developed the concept of ‘catastrophism’. In the midst of the radical political changes that were engulfing Europe, Cuvier speculated that the Earth itself had undergone radical, […]

Read More…