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.