The Death of Whole-Brain Death - Taylor & Francis Online

Journal of Medicine and Philosophy, 30:353–378, 2005 Copyright © Taylor & Francis, Inc. ISSN: 0360-5310 print DOI: 10.1080/03605310591008504

The Death of Whole-Brain Death: The Plague of the Disaggregators, Somaticists, and Mentalists

0360-5310 NJMP Journal of Medicine and Philosophy, Philosophy Vol. 30, No. 04, June 2005: pp. 0–0

ROBERT M. VEATCH Georgetown University, Washington, DC, USA Death of Robert M.Whole-Brain Veatch Death

In its October 2001 issue, this journal published a series of articles questioning the Whole-Brain-based definition of death. Much of the concern focused on whether somatic integration—a commonly understood basis for the whole-brain death view—can survive the brain’s death. The present article accepts that there are insurmountable problems with whole-brain death views, but challenges the assumption that loss of somatic integration is the proper basis for pronouncing death. It examines three major themes. First, it accepts the claim of the “disaggregators” that some behaviors traditionally associated with death can be unbundled, but argues that other behaviors (including organ procurement) must continue to be associated. Second, it rejects the claims of the “somaticists,” that the integration of the body is critical, arguing instead for equating death with the irreversible loss of “embodied consciousness,” that is, the loss of integration of bodily and mental function. Third, it defends higher-brain views against the charge that they are necessarily “mentalist,” that is, that they equate death with losing some mental function such as consciousness or personhood. It argues, instead, for the integration of bodily and mental function as the critical feature of human life and that its irreversible loss constitutes death. Keywords: brain death, higher-brain death, personhood, somatic integration

Address correspondence to: Robert M. Veatch, Ph.D., Professor of Medical Ethics, Kennedy Institute of Ethics, Georgetown University, Washington, DC, 20057, USA. E-mail: [email protected]. 353

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I. INTRODUCTION A recent issue of the Journal of Medicine and Philosophy was dedicated to the final philosophical destruction of whole-brain death. The lead essay by Alan Shewmon (2001) argued, I think persuasively, that, if one is committed to equating death with the irreversible loss of the somatic integrative unity of the “organism as a whole,” one cannot possibly reduce the death of the human being to the death of that human being’s whole brain. As he claimed with very careful and precise wording, “Loss of somatic integrative unity is not a physiologically tenable rationale for equating brain death [BD] with death of the organism as a whole” (Shewmon, 2001, p. 457). Michael Potts (2001), in his sympathetic commentary on Shewmon, made clear, if Shewmon did not, that what Shewmon is attacking in more precise language is the philosophical underpinnings of the whole-brainoriented definition of death. Shewmon has in his sights what Potts called the “standard paradigm,” the view expressed most clearly in the early literature by the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1981, p. 2), in its report on Defining Death, when it defended the view that “An individual who has sustained… irreversible cessation of all functions of the entire brain, including the brain stem, is dead.” The remaining articles in the issue also bring bad news for the defenders of the whole-brain-oriented view, that is, the view that bases the definition of death on the irreversible loss of all the functions normally carried out by the brain.1 Amir Halevy (2001) recapitulates the challenging empirical claims he originally made with his colleague, Baruch Brody, in 1993 (Halevy & Brody, 1993). They point out that many patients who fully meet any of the standard criteria for measuring the death of the brain, in fact, retain considerable, measurable brain function. These patients may produce electroencephalographic activity that is real brain activity (not mere artifact); they may produce auditory and/or visual evoked potentials; and they may demonstrate neurohormonal functioning representing activity of the hypothalamus or posterior pituitary. This means that any such individuals have clearly not lost all functions of the entire brain. In other words in these cases the tests that purport to measure the loss of all such functions really do not. Dagi & Kaufman (2001) made the defender of whole brain-oriented views of death even more uncomfortable by claiming that definitions of death, are inevitably subjective, based on social conventions rather than objective fact, while Youngner & Arnold (2001) recapitulated the entire range of controversies that reveals that whole-brain-oriented definitions of death have challengers on a wide range of issues. Finally, Courtney Campbell (2001), with the best title of the bunch, provided cogent reviews of two new books that purport to refute the whole brain-oriented view while at least

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one of them seeks, in ways Campbell views sympathetically, to replace it with the more traditional view that associates death with somatic functions of circulation and respiration. The net result is a devastating, I think final, blow to the whole-brainoriented view. Shewmon, in particular, showed that many integrating functions of the brain are not somatically integrating2 while many (he says “most”) somatically integrative functions are not brain-mediated. He cited homeostasis, elimination, energy balance, maintenance of body temperature, would healing, fighting off infections, development of a febrile response, cardiovascular and hormonal stress responses, successful gestation of a fetus, sexual maturation, and proportional growth, all of which he claimed convincingly can and have occurred in individuals diagnosed as brain-dead (Shewmon, 2001, pp. 467–468). If what is critical about human beings to their being classified as alive is bodily, that is somatic, integration, then the case for the brain as the critical organ has just gotten that much harder. I find Shewmon’s refutation of the whole-brain death view linked to bodily integration absolutely convincing. If bodily or somatic integration is the decisive feature of being alive, then Shewmon has defeated the defenders of the whole-brain death view. The collection of articles has also reinforced the position of the opponents of whole-brain death citing claims that have been accumulating over the past few years. One is that, contrary to what was originally believed, some individuals with dead brains, at least those measured as dead by traditional criteria, can continue somatic survival for weeks, months, or, in one case, for years. To the extent the whole-brain death view rests on the belief that inevitably somatic (including circulatory and respiratory) death will soon follow, the whole-brain death view is once again in serious, one could say, insurmountable trouble. Finally, some of the authors, especially Halevy and Youngner/Arnold in this volume and elsewhere, consider an interesting alternative to the whole-brain death view. They suggest “disaggregating” or “unbundling” the concept of death so that different activities that have traditionally been associated with death—activities such as deciding that a patient is in need of an undertaker, procuring organs, or authorizing unilateral stoppage of treatment–might each have their own unique points in time so that death would once again be considered a process rather than a single event. In effect, the definition of death would then cease to be a meaningful issue altogether. There would be several moments that trigger several different events no one of which need be called death. In this devastating package of five articles, every article (not including the book review) manages to make critical reference to work of mine, usually in conjunction with noting in passing that a higher-brain-oriented concept of death is an alternative, but one they will not take up or do not find acceptable. The main purpose of these authors is to show the shortcomings

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of the standing whole-brain death view. It is reasonable that the authors do not give much attention to the higher-brain alternative. Unfortunately, however, because they do not devote much attention to the higher-brain view, they leave the impression that their position emerges as the most defensible, and, when they do consider the higher-brain view, they often do not state the position accurately or respond reasonably to potential defenses against their reasons for rejecting it. I therefore think it is appropriate to offer a response. The bulk of the problematic aspects of these papers can be summarized under three headings: the case of the disaggregators, the case of the somaticists, and the attack on the mentalists. If these three elements of the papers from the Journal’s special brain death issue are addressed, I think the reader will see that reverting to a more traditional view of somatic integration as a basis for defining death is not the only option. Indeed it is not the most defensible option.

II. PRELIMINARY MATTERS: SOMATIC SURVIVAL AND ERRONEOUS CRITERIA Before turning to those three themes, however, we need a preliminary word about the newly mounting evidence that it is not necessarily true that those persons who meet criteria for whole-brain death necessarily will suffer somatic collapse rapidly, as well as about the evidence that individuals who meet the traditional criteria for the death of brain really retain some supracellular brain functions.

A. The Possibility of Prolonged Somatic Survival The articles make several references to this mounting evidence (Campbell, 2001, p. 542; Shewmon, 2001, p. 468; Youngner & Arnold, 2001, p. 530), usually referring to Shewmon’s own impressive series of cases (Shewmon, 1998). It cannot be denied that the original defenders of a whole-brainoriented view, including some of the members of The Harvard Ad Hoc Committee, mentioned the purported fact that once brain death occurs somatic death cannot be far behind as a reason to support their position. Surely, however, that purported fact was always a non sequitur. If an individual is deceased when the whole brain has irreversibly lost all its functions, it is irrelevant whether somatic functions other than the brain can continue for only a brief time or for years.3 It was irrelevant when the Harvard Ad Hoc Committee made the observation in 1968. It is irrelevant now that we know the claim is false. From the standpoint of a defender of the whole-brain death position, it makes no difference whether certain bodily functions can continue. One can hardly fault the critics of the whole-brain


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view for sticking the knife in further and twisting it since the defenders of the whole-brain death position boasted the claim in the first place, but the most reasonable conclusion is that, from the point of view of the wholebrain death position, long-term survival of certain non-brain functions just does not matter.4

B. The Evidence of Lingering Integrative Brain Functions The other preliminary problem that needs attention is the repeated reference to the evidence of lingering integrative brain functions that appear to be capable of surviving after the standard traditional criteria sets for measuring the death of the brain have been met. I refer here to the continuing electrical activity, the evoked potentials from auditory and visual stimulation, and the neurohormonal activity having its origins in the pituitary or hypothalamus. Some knowledge of lingering electroencephalographic activity has been known for many years (Walker, et al., 1977). Halevy & Brody (1993) revealed how substantial these functions were and what their implications were for the whole-brain view. I (Veatch, 1993) and others have cited them as a basis for claiming that the whole-brain death view with its existing criteria for measurement could no longer be accepted. The problem is not insurmountable, however. The only honest thing for a dedicated defender of a whole-brain death view to do is admit that the older criteria sets were inaccurate. They were believed to measure perfectly the irreversible loss of all integrative functions of the brain, but those who made such claims were mistaken. The corollary would be that the criteria sets would have to be amended. A more exacting EEG test might have to be added as well as measurement of evoked auditory and visual potentials and of neurohormonal activity as well as any other measurements that were deemed necessary. One thing is clear: the old criteria unamended now no longer suffice to measure the loss of all functions of the entire brain. Halevy, in the 2001 article in this Journal, pointed out that using new tests might be prohibitively expensive. That could discourage the measurement of death based on whole-brain death criteria, but that poses no theoretical problem to defenders of the whole-brain death view. The bottom line would be that the death of the whole-brain could still be measured if one wanted to go to the time and trouble to do so. Many defenders of the whole-brain death view, however, appear not to be satisfied with this conclusion. They want to have their whole-brain death cake and abandon it, too. They start discarding certain functions of the brain as unimportant or insignificant. The earlier criteria threw out small electrical potentials in an EEG reading even though the defenders of the whole-brain death view understood they were really coming from the brain and that, therefore, some “dead brains” still had living, functional tissue in them. They did this on the grounds that they believed that these potentials

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measured mere cellular activity and cellular activity did not count as performing an integrative function. James Bernat and his group (1992), staunch defenders of the whole-brain death position, realized they would have to go even further. They would have to discard certain “nests of cells” as unimportant in order to identify only the “critical” brain functions. I certainly agree with him that, for any defender of any brain-oriented view, this is the only reasonable option. Not every last little nerve circuit making up a nest of cells in the brain can count as evidence of continuing life (in the sense they and I are using the term). The problem with Bernat’s selective discarding, however, is that he wants to distinguish significant from insignificant brain functions while simultaneously claiming he is defending the whole-brain death view that requires the irreversible loss of all brain functions. That move seems indefensible. One cannot simultaneously claim to be holding a whole-brain death view and still consider people dead who have only lost part of their brain functions—even if the part that is lost is believed to be “insignificant.” In fact, all defenders of higher-brain views agree with Bernat that some functions are insignificant (although they may disagree with him about exactly which functions should be so classified). The difference, however, is that the defenders of the higher-brain view admit that they are no longer in the whole-brain death camp. Anyone who recognizes that some residual brain functions remain after all the traditional criteria for death have been met must either amend the criteria, adding a test for each potentially remaining brain function, or honestly abandon the whole-brain death view.

III. THE CASE OF THE DISAGGREGATORS Before directly challenging the case made for a definition of death based on irreversible loss of integrating bodily functions that reside outside the brain, a word needs to be said about the disorienting views of the disaggregators. Halevy and Brody made the case in 1993. Others have as well. In fact, I myself, recognized the possibility of disaggregating as early as 1976 (Veatch, 1976, p. 27). I have always viewed the definition of death debate as a moral or social or policy controversy over when certain behaviors traditionally associated with pronouncing of death are appropriate.5 I call these behaviors “death behaviors” (Veatch, 1976, p. 26). They could include stopping of certain life-supporting treatments, procuring “life-prolonging” organs, beginning the mourning process (in a manner that is psychologically different from anticipatory grief), reading the will, initiating the funeral and burial ritual, stopping health insurance coverage, initiating the payment of the principal for life-insurance, transferring presidential title in the case that the one pronounced dead happened to be the president of the United States or any


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other entity in which office passes automatically on the death of the office holder, and many other behaviors associated with death pronouncement. When the dying process occurred rapidly and inevitably, it was reasonable to let all of these death behaviors be triggered by what was taken to be a single event called death. As medicine became better and better at intervening to slow a series of dying events, it became more and more reasonable to ask whether all of these behaviors should be triggered simultaneously at a moment called the moment of death. It seems obvious now that some of them should be unbundled from the moment of death. We have recognized for decades, for example, that some life-prolonging medical treatments can, with the patient or surrogate’s approval, be stopped when an individual is dying rather than only at the moment of death. Those decisions have long been unbundled from death pronouncement.6 Many other death behaviors are increasingly understood to be disaggregated from death pronouncement. Grieving may start long before death, especially if the dying one is permanently comatose. The assumption to the presidency of the vice-president clearly should not always await the death of the president. Lapsing into a permanent coma surely is sufficient. Lapsing into some other permanent state of impairment should be too.7 Other death behaviors are also appropriately disaggregated from the moment of death. We now know that, in some cases, it is reasonable for life insurance to pay off (at appropriately discounted rates) before an individual dies. In some cases, it might be appropriate, as Halevy suggested, to authorize unilateral discontinuing of life support even against the wishes of the patient.8 There can be no doubt that some, perhaps many, death behaviors should be disaggregated from the moment of death. Halevy and Brody (1993), Youngner (2001, p. 528), Truog (1997), and Emanuel (1995) are among those who have attempted to get mileage out of the strategy of disaggregating, but anyone who thinks disaggregating will make the definition of death problem go away is wrong.9 There will remain a core cluster of “death behaviors” that must remain aggregated. They will remain aggregated because precisely the same rationale will be seen as justifying each of these behaviors. People we normally perceive to be living human beings are sometimes said to possess a special moral status. It can be called “full moral standing.” This is a status we perceive as belonging to full members of the human moral community. At least in modern society, this status of possessing full moral standing is assigned equally to all members of the moral community. A cluster of rights, sometimes called “human rights,” is said to accrue to each individual with full moral standing. Alternatively, we can say that other humans have certain duties toward these individuals.10 Beginning in the 1960s, we assigned a word to those who have lost full moral standing. Taking a word that originally had rather different meaning, we called these individuals “dead.”

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I have from the beginning of the definition of death debate in the 1960s always held that the definition of death debate is important because it is really a debate over when humans (and perhaps some non-humans) lose the status of possessors of full moral standing. Thus calling someone “dead” has little, if anything, to do with the way we use the terms “living” and “dead” in biology.11 It has everything to do with moral (and legal) status. Death behaviors, at least those that remain after some not necessarily linked to death are detached, are inappropriate for anyone who is alive; they are appropriate for those who have lost full moral standing and are therefore called “dead.” The claim then is that there is a core cluster of death behaviors that will appropriately remain aggregated because they are deemed appropriate when, and only when, an individual has lost full moral standing.12 The directly obvious example is that the term “kill” is not appropriate when applied to a dead person. We can kill living people (people who have full moral standing). We cannot kill “dead people.”13 If someone were to dismember a living human, we would say that he or she killed that individual. Many moral and legal repercussions would follow including a potential charge of homicide. However, if he or she dismembered someone who is dead, a grave moral and legal offense may have occurred, but he or she could not be charged with homicide. A murder was not committed. In rendering moral and legal judgment in such cases it is crucial to know whether the one dismembered was classified as dead or alive. It makes sense that the classification would be based on whether one retains full moral standing. If that individual was considered to have full moral standing, we would say the individual who was dismembered was “alive.” The punishment should be based on this status. If the dismembered one has some lesser standing, we would say he or she was “dead.” Another behavior that has been linked to whether we consider someone dead or alive is the attribution of constitutional rights. Living humans who otherwise qualify (have necessary citizenship or residency status) have constitutional rights, but at death they lose that special status. The Constitution no longer applies to them. This loss of constitutional protection seems to link directly to the loss of full standing. I can see no reason why this change in status would not occur at the same time at which it would become impossible to kill (because the individual is dead). Thus I suggest that the loss of constitutional rights and the loss of the capacity to be killed would be triggered by the same status change.14 Similarly, human rights, such as those in the United Nations Declaration, are attributed to all those and only those who have full standing, who are living human beings. The method of legitimation of removal of life-prolonging organs would plausibly also be linked to this same status change. Removal of a lifeprolonging organ from a living individual (at least without replacing it with an artificial organ) will cause the death of that individual.15 The result will


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be a homicide. It is conceivable that at some point in the future homicide by organ removal will, under certain circumstances, be considered “justifiable homicide,” say, when an individual is near death, when he or she consents to ending his life in this manner, or when a convicted criminal has received the death penalty. In that case removing life-prolonging organs from living people could conceivably be justified. The critical fact, however, is that, even if these organ procurements were someday to be accepted, they would require the complex justifications that accompany defenses of intentional killing. The justification is radically different from the justification of merely procuring organs from a corpse. We have historically followed what is sometimes called the “dead donor rule.” The dead donor rule holds that life-prolonging organs may only be procured from the dead. If that rule is taken to mean that one can only procure life-prolonging organs from the dead without the complex moral justification that is needed to support justifiable homicide, then the dead donor rule holds. In fact, as I have claimed previously (and with less precision), it holds by definition (Veatch, 2003). For procurements to be morally justified without the arguments necessary to justify homicide, we can only procure organs from the dead.16 We should first identify the classes of humans for whom organs can be procured without establishing that a homicide is justified (such as those with permanently nonfunctioning cardiac systems and, as the dominant view holds today, those with permanently nonfunctioning brains or “higher-brains”). This presumably would identify all those who have permanently lost full moral standing and thus can have organs removed without an action that is the equivalent of homicide. We would reasonably then call these people “dead.” In this sense the dead donor rule, insofar as it authorizes procurement without homicide, is true by definition. It is a rule prohibiting procurement until one has lost full moral standing (unless the procurement turns out to be a justifiable homicide). This leaves open the question of whether in the future we will ever adopt the moral position that certain people (such as the rationally suicidal or criminals guilty of capital offense) can be killed to obtain their organs. If a society were to adopt such a policy, the dead donor rule would remain exceptionless as a rule about when life-prolonging organs may be obtained without a justification of homicide.17 This should make clear how the definition of death is used in a moral and public policy sense and why it is essential to a society. It has nothing directly to do with human biology (although biological features of individuals may be the kind of thing we look at in determining whether one has full moral standing).18 The moral and public project is to determine exactly when full moral standing ends. It is a necessary project for a range of human purposes. The definition of death debate is really a debate over when we should treat a human as possessing full standing and when some lesser standing applies.

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It is a question for which a society must have an answer, and the answer must refer to a precise moment in time when full moral standing ceases. We cannot have a behavior that is “partial murder.” We cannot have a continuum that would lead to charges that are a little bit murder and a little bit corpse mutilation. Either someone has committed a homicide or he has not. Since taking life-prolonging organs out of individuals for transplant can have the effect of precipitating a radical change in those individuals, it should be obvious why we operate under a rule called the “dead donor rule.” Taking such an organ out of a living individual is, by definition, taking the organ out of someone with full moral standing. It is killing them. It is precisely because they possess this standing that such organs cannot be taken without a moral defense of a homicide and that, until now, most have believed that such a defense is not available. Once we have identified those lacking full moral standing, we will know exactly from whom it is acceptable to remove organs (without justifying a homicide). My concern has been with the justification of procurements from anencephalic infants and the persistently vegetative. While some have attempted to claim that these cases should be an “exception” to the dead donor rule, I believe it is much more plausible that those who favor such procurements really believe that these beings have lost (or have never had) full moral standing and hence are, in effect, beings who should be classified as dead for purposes of social and public policy. The justification of such procurements by claiming they do not have full moral standing is much more plausible than one that would treat them as beings with full standing who nevertheless can be killed by organ procurement. Never have we permitted the killing of beings with full standing for purposes of organ procurement. Since they are neither aggressors worthy of being killed nor are they generally capable of consenting to be killed, I think it is most implausible that we could justify procuring their organs if they are deemed to have full standing. This is why any effort, such as that attempted by the American Medical Association in 1995, to make an exception to the dead donor rule for anencephalics must fail. If we decide it is acceptable to take life-prolonging organs from someone, we have usually already decided that they have lost full moral standing in the human community, that is, we have already decided they are dead. Hence, anyone who proposes to make an exception to the dead donor rule for, say, anencephalics babies like Baby Theresa (In re T.A.C.P, 1992) has made a conceptual mistake. They, in fact, believe that anencephalics have a moral status that permits organ removal without the usual arguments that justify killing of those with full standing. They are already “dead.” That may be an appropriate claim. Anyone who holds to a higher-brain definition of death that links full moral standing to possession of capacity for consciousness would support the view that anencephalics are “dead” in this special moral and public policy sense. Thus the AMA, if it


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had wanted to endorse organ procurement from anencephalics infants, should not have proposed an exception to the dead donor rule; it should have proposed a change in the definition of death so that anencephalics were classified as dead, just the way that those with whole-brain death presently are. That would require the AMA to have endorsed a higher-brain definition of death.19 The only acceptable exception to the dead donor rule would require that we legalize killing people to obtain their organs (with or without their consent). For those who have lost full standing, the dead donor rule is correct by definition since anyone from whom organs can justifiably be procured will be thought of as not having full moral standing and therefore be dead according to this meaning of the term. The implication of all of this is that, even after we do some proper disaggregating of the behaviors traditionally associated with death pronouncement, there will necessarily remain a core cluster of these death behaviors that can not be unbundled any further. All those behaviors that we think properly are justified by a radical change from full to some lesser moral standing will be attached to the moment we identify by moral analysis. We have, since the 1960s begun to call this the “moment of death.” These behaviors will include the decision not to charge someone with homicide, including homicide by removal of life-prolonging organs. Organ procurement on the basis of loss of full-standing can therefore never be unbundled. Those disaggregators are making a valuable contribution if they merely disaggregate behaviors such as withdrawing life-support in order for the dying to proceed, but they are mistaken if they think they can disaggregate from the definition of death the procurement of life-prolonging organs on the basis of loss of full moral standing.

IV. THE CASE OF THE SOMATICISTS The disaggregators were only one of the groups attempting to undercut the whole-brain-oriented definition of death in the October 2001 issue of the Journal of Medicine and Philosophy. The more important challenge to whole-brain death came from a group led by Alan Shewmon that I will call the “somaticists.” They associate death with a loss of some function of the soma, the body. They undercut whole-brain death by claiming that, for anyone who associates death with irreversible loss of somatic integrating capacity, death must be associated not merely with irreversible loss of brain function, but by other integrative bodily functions such as respiration, circulation, and excretion as well. As I have said, once one accepts the philosophical, moral view that the loss of full moral standing is based on loss of somatic integrating capacity, I don’t see how one can reach any conclusion other than that reached by Shewmon, Potts, and the others appearing in the Journal and elsewhere.20

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The issue is whether the phenomenon that triggers a loss of full moral standing and is called death is properly associated with integrating capacity and, if so, whether that capacity is limited to the somatic. The critical feature that gives humans full moral standing cannot, I am convinced, be reduced to any mere integration of bodily function. It must be conceded that there is no definitive logical argument against the view that what ultimately counts in moral standing is some set of integrated bodily functions. What can be said, however, is that this violates the fundamental tenets of the mainstream of Western religious and philosophical thought. Only one with a uniquely animalistic view of moral status could possibly associate moral standing with mere bodily, that is, somatic function even if those functions are integrative.21 In a biology classroom, viewing humans as essentially human animals (that is, taking an organismic, biological conception of life and death) may serve some purpose, but it is hard to imagine why one would adopt that perspective for purposes of answering the moral and social policy questions that are at stake in the definition of death debate (cf. DeGrazia, 1996). The human is in a crucial, essential way more than the sum of his or her body parts—even if those parts are functioning in an integrated way. The mere integration of bodily functions is not what deserves fundamental moral status. Some recognition of mental function will be necessary, as I suggest below. I have, from the beginning of the definition of death debate, insisted that the choice of the critical features about humans that give them full moral standing is based directly on one’s religious or philosophical worldview of the essence of the human. I said in 1976 that my views of moral standing are based on the Judeo-Christian world view (or a modern version of it) and its secular analogue that what is morally critical is the not the integration of mere somatic functions, but of the body’s integration with the mind. Jewish and Christian anthropology from the beginning affirmed that the human is critically what I take, in modern terms, to be the integration of the body and the mind.22 Secular philosophical thought has similarly considered integration of mental function critical. When, and only when, this capacity for mental function is present is the minimal set of qualities present to treat the human as a living member of the moral community. This means that the somatic integrators are on the right track. Integrative function is correctly identified as the critical feature and its irreversible loss is death. The mistake of the somaticists is that they limit integration to bodily or somatic integration. That makes some sense if one is interested in a purely biological definition of death. It is, as Campbell (2001, p. 546) called it, “biological fundamentalism.” But the definition of death debate was never about a biology class.23 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


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matter of morality and public policy: when humans have full moral standing and when they lose it. The Shewmon school of defenders of somatic integration as the crucial feature of humans who are alive that separates them from those who are deceased, is on the right track when it focuses on integration, but it has a terribly strange view of humanity when it limits integration to various types of somatic integration. What a Jew or a Christian or someone in the secular world whose basic values have been influenced by that traditional belief system would insist on is that the integration be between the body on the one hand and the mind (or soul or spirit) on the other. We will not pursue the arcane theological question of whether the human incorporates two or three elements, but what is crucial is the universal agreement among these traditions that the human is more than a body.24 Shewmon, Potts, DeGrazia and all defenders of the “somatic integration” basis for defining life and death focus exclusively on the body. Shewmon, over and over again, makes clear that, according to his view of the human, all that is essential for life to be present is a functioning, integrating body. No mental component is needed. For example, he said, “consciousness is not a necessary condition for somatic integrative unity. The notion of a live ‘organism as a whole’ that happens to be unconscious (even if irreversibly so) is not self-contradictory, even for a type of organism normally conscious or potentially conscious” (Shewmon, 2001, p. 460). For him an organism can function “as a whole” even though mental function, one of the two or three crucial elements for at least some interpretations of Judaism, Christianity, and modern secular Western thinkers, is permanently missing. For me, and for others in that tradition, an organism cannot exist as an integrated whole if one of its crucial, essential elements is missing. It is integration of body and mind that is critical, not mere integration of various somatic parts. Potts makes the conflict even more blatant. For him, “A human being is alive if and only if he or she is a human body which is an integrated organic unity at the level of the ‘organism as a whole’” (Potts, 2001, p. 481). Notice he did not say that for an organism to be living “as a whole” it must include a body; rather he said a living human “is a human body.” Shewmon, Potts, and the other somaticists confuse “me” with “my body” (at least if the body incorporates integrated somatic functioning). That is an intolerable confusion for one standing in either the religious traditions to which I refer or the secular spin-offs from those traditions. A human is not a mere body; it is a body combined with something else. The ancients might have referred to that something else as soul or spirit; moderns usually refer to it as “mind” or “mental function” or merely “consciousness.”25 I have suggested that these views are essentially similar. (If they are not, so be it.) 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.

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V. THE ATTACK ON THE MENTALISTS This is not quite the end of the story as it is presented in the special issue of this Journal. Many of the authors have some remarks to offer on some versions of the view that would insist that mind must be present for a human to be considered alive (that is, have full moral standing so that human rights and the dead donor rule apply). They attack me and others who subscribe to this truly integrated view that incorporates mental function as a necessary condition for the status of being alive. They do so, however, in some cases, by representing this view in a particularly anemic and simplistic form. To complete this analysis I need to say something about this attack. I will refer to it as the “attack on the mentalists.” I do so because, often, they seem to reduce the view I represent as one focusing exclusively on mental function. (They attack the view that mental function is not only necessary, but also sufficient.) Sometimes they add the additional requirement that the individual must not only manifest mental function, but also be a “person” before the defenders of the more inclusive view would accept an individual as living. Shewmon divides the concepts of death as instantiated by those who support some brain-based view as falling into three main categories. The first, which he spends virtually all of his time attacking, he said is “essentially biological” (Shewmon, 2001, p. 458). It focuses on loss of somatic integrative unity, but attributes that somatic unity to the functions of the brain. He cited Bernat and colleagues (1981) as well as other traditional defenders of the whole-brain death view such as the President’s Commission (1981). A second position (which he takes up last) he called “sociological”; it focuses on societally conferred membership in the human community. The third view, which he attributed to me as well as Ron Cranford, John Lizza, and Calixto Machado, he called “essentially psychological” (Shewmon, 2001, p. 458, italics in original). It is a view predicated on “human person equated with mind.” He earlier had equated loss of personhood with loss of mind or capacity for consciousness (Shewmon, 1997, p. 42, 45 and passim). He might also have included Tristram Engelhardt and Michael Green and Dan Wikler among those who connect concepts of personhood and personal identity with the definition of death. Likewise, Potts, in passing, revealed that he holds that those who emphasize consciousness do so based on personhood (Potts, 2001, p. 486). Back as far as 1981, the President’s Commission accused holders of the higher-brain views related to consciousness of holding that the critical feature of living humans must be personhood.

A. The Personhood Problem Some of these authors really do deserve this characterization. Stuart Youngner, for example, admitted in the special issue, to having held a “personhood”


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view (Youngner, 2001, p. 529, in which he cited Bartlett & Youngner, 1988). Others in the higher-brain camp, however, who focus on consciousness explicitly reject this claim. Green and Wikler (1980), for example, focused on continuity of individual existence as manifest by continuity of “personal identity,” and specifically reject the suggestion that their view has anything to do with personhood (Cf. DeGrazia, 1999). I have always gone even further. My position has been that being a living human is totally independent of possessing either personhood or continuity of personal identity.26 Personhood is an amazingly ambiguous term. According to some, it means, by definition, all humans (and perhaps nonhumans as well) who possess full moral standing. Thus, for one who attributes full standing to all living humans, they are, by definition, persons, even if they are, according to Shewmon-type views, totally unconscious and even if they have completely lost all brain function—as long as they retain somatic integrating capacities. Alternatively, according to some more controversial definitions of person, the term is limited only to those humans (or other beings) who possess some key mental capacity such as consciousness or awareness or, more often, self-consciousness or self-awareness. According to this view, however, it seems linguistically possible for there to be such a thing as a human, living, non-person, that is (according to the self-consciousness interpretation) a biologically integrating and even conscious human being who nevertheless lacks self-consciousness. It would seem, for example, that all newborns and perhaps some senile living humans are living, but non-persons by this conceptualization. Still others use the term, person, to refer to entities that are not embodied such as the being that would exist if one could download an individual’s memories into a sophisticated computer. Similarly, some would use the term to refer to non-bodily entities such as departed human souls, angels, or divine persons. To the extent that the language can be used in this many ways, figuring out whether one is a person or not seems to have nothing analytically to do with the question of whether one is a living human being, that is, one with full moral standing. If the term person is used in the nonmoral sense such as referring to a being with self-consciousness, it is at least theoretically possible for some living humans to be nonpersons. Hence, the definition of death debate should have nothing to do with whether the human is a person or not. This is true even for holders of consciousness-based as well as other concepts of death that incorporate mental function as a necessary condition. Therefore, I have always eschewed any interest in personhood in the definition of death debate. By at least some linguistic usages, there can be human living nonpersons so personhood cannot be a necessary condition for being alive.

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B. The Mentalist Problem Regardless of whether the higher-brain definitions incorporate a concept of personhood (which mine does not), Shewmon, Potts, and other critics equate higher-brain concepts of death with making capacity for mental function a necessary condition for being classified as alive. The problem is that they also seem to assume that holders of the higher-brain view make capacity for mental function a sufficient condition. They believe that all defenders of higher-brain views must be committed to the view that possessing mental function is all it takes to be alive. Once again, that charge seems to apply to some holders of the higherbrain view. Green and Wikler can justifiably be so charged. Plato and other Greeks probably could as well. A human was a soul entrapped in a human body. The body was not the individual; it was merely its temporary quarters. I will call anyone who believes that a living human can be reduced to a mind or a soul a “mentalist.” In modern times some who are not philosophically very sophisticated have also made this assumption. Eric Cassell (1976, pp. 150, 227), for example, contrasted “person” and “body” as if the human individual person were somehow separate from his or her body. He even described his view as “reminding one of the classic Greek attitude” (Cassell, 1976, p. 227). Shewmon, Potts, and others do not really give full attention to mentalists and other holders of the higher-brain view. Shewmon said “If BD [brain death] is to be equated with death, therefore, it must be on the basis of an essentially non-somatic, non-biological concept of death (e.g. loss of personhood on the basis of irreversible loss of capacity for consciousness), discussion of which is beyond the present scope” (Shewmon, 2001, pp. 474–475). Even this reveals he believes that these higher-brain-based views are “nonsomatic” and “non-biological,” that is, exclusively mentalistic. Likewise, Potts did not really address higher-brain options. He merely said that “higherbrain criteria remain a viable option” (Potts, 2001, p. 490). Also, Halevy (2001, p. 497) acknowledged that “a higher brain criterion has had many supporters and a complete discussion of this response is beyond the scope of this paper.”

T HE B URYING -A -BREATHING-B ODY A RGUMENT Several recent commentators, including some in the 2001 Journal of Medicine and Philosophy issue, do, however, take up some standard and timeworn objections to higher-brain-based views, objections that go all the way back to the President’s Commission. Halevy (2001, p. 498) and Campbell (2001, p. 545), for example, considered the Commission’s rather simplistic observation that we would not wish to bury individuals who have lost consciousness, but were still breathing. They both seem to believe that this


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implies we really think such individuals are not yet dead. The frustrating thing about this is that this and other arguments the commission put forward were addressed persuasively long ago. For example, to the observation that we would not bury a permanently unconscious, but spontaneously respiring individual, defenders of higher-brain-based views have pointed out that we would not necessarily bury everyone who is dead. We would not bury deceased people who are candidates for organ procurement. This is true whether they are deceased by whole-brain death, cardiac, or higherbrain criteria. We would not bury whole-brain death dead individuals who are still attached to ventilators. We would first disconnect the ventilator and then wait the requisite period to make sure that the heart stops beating. If that individual happened to be on a pacemaker so that the heart continued to beat indefinitely, we would probably do something to stop the heart. We would not bury people pronounced dead by cardiac criteria who still have machinery attached. This is partly because we want to recover the machinery, but it is also for aesthetic reasons. It would be unaesthetic to bury someone with his heart beating or breathing on a ventilator (even if that individual were pronounced dead based on whole-brain death or cardiac criteria). For the same practical and aesthetic reasons, we would probably not bury someone pronounced dead by higher-brain criteria if he or she were still breathing. This in no way proves such individuals are still alive. T HE INABILITY -TO-D IAGNOSE A RGUMENT Likewise Halevy repeated the old argument of the commission that we cannot precisely diagnose irreversible loss of higher-brain function. Even if this were true, it would not be an argument against the theoretical soundness of the higher-brain view. The proper response would be to acknowledge that anyone who has permanently lost consciousness is dead, in theory, and then claim that, until we learn how to diagnose permanent loss of consciousness, we would have to use some more traditional criteria (including the amended whole-brain death criteria). But the puzzle is that we already agree that we can in some cases accurately diagnose irreversible loss of consciousness. This is precisely what a diagnosis of PVS is (at least if PVS is taken to refer to permanent vegetative state; the existence of a vegetative state that is merely “persistent” is not very interesting, either for determining that someone is dead by higherbrain criteria or for determining that it is appropriate to forgo life-prolonging treatment). We presently tell family members, such as Karen Quinlan’s, that it is acceptable to decide to withdraw life support in their still-living loved ones precisely because we are adequately certain that they will not recover from their vegetative state. Of course, if we can be adequately certain that we can diagnose PVS (or anencephaly) to justify withdrawing life support, there should be equal certainty in diagnosing it if we choose to pronounce

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death based on irreversible loss of consciousness. It is frustrating that Halevy and others repeat these claims without acknowledging the powerful counter-arguments that have been in the literature for decades.

C. That not All Higher-Brain Views Are Mentalist The major problem in these anti-brain death articles is not their failure to consider the rebuttals to the President’s Commission’s weak criticisms of a higher-brain view; it is in their failure to see that not all defenders of the higher-brain views are mentalist. I define a mentalist as one who believes that the only feature that gives life full moral standing is mental—consciousness, awareness, self-consciousness, self-awareness, capacity to think rationally or the like. While Green and Wikler, like Plato and the Greeks, may hold such a view, it is not required of those who hold the higher-brain position. It is not my own position. I have, from the beginning of my participation in the definition of death debate (Veatch, 1975; 1976) held that full moral standing—life, in this morally significant sense—is the characteristic of all humans with “embodied capacity for consciousness.” I leave open the question for further analysis the extent to which this also applies to nonhumans with embodied consciousness. Just as somaticists make the critical error of proposing that moral standing attaches only to somatic integrative capacity, so mentalists make the parallel error of proposing that moral standing attaches only to mental function. Both neglect the question of the connection between the two. Embodied consciousness takes a stand about both capacities for both the minimal somatic functions and the minimal mental functions that are necessary for full moral standing to be present. When, and only when, these are jointly present, then the sufficient conditions for full moral standing are present. I shall not develop the detail further, but make only a few final observations. First, it is functional integration of body and mind that is crucial. This suggests some obvious and not so obvious implications. First, it is obvious that a functional body without any capacity for mental function lacks the essential integration of body and mind. It should be considered a “dead body” for public policy purposes such as homicide, inheritance, widowhood, and organ procurement. That is merely the normal understanding of the higher-brain position. Less obvious is the fact that a totally disembodied mind would, according to this view, be similarly incomplete. Since such a phenomenon is totally hypothetical—at least until computerization advances a bit further to the point at which we can download a memory bank and make it perform mental functions—no one except a philosopher or theologian worries too much about the moral status of disembodied minds. Some mentalists, however, are quick to conclude that a disembodied mind is, in theory, just as


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much a living human as its previously embodied form would be. That conclusion I, and most scholars within the Judeo-Christian tradition, must reject. A disembodied mind that has been downloaded from a previous embodiment but remains capable of thinking, feeling, remembering, and so forth, would surely have some important moral standing, but, so I claim, it would not be the same human as it was when it was embodied. I suppose it would be a terrible offense to intentionally erase that memory, but, so I claim, it would not be the same as murder. It would be as bad or worse than mutilating a corpse. It would presumably warrant severe punishment. But I would not favor charging the one who erases the hard-drive with murder. Some other crime would need to be invented. Another implication: Philosophers have long puzzled over hypothetical cases of mind-switching in which two individuals have their minds switched into each other’s body. The sport is usually to figure out whether the original individual with his assets, spouse, and so forth, resides with the mind or the body. It is particularly challenging when the body switch crosses gender so that the original individual’s mind now resides in a body that is the same gender as that mind’s original spouse.27 Mentalists who are consistent must conclude that it is the mind that counts so that what has occurred is, in effect, a “body-switch.” They should conclude that a single-gender marriage results. My own “embodied consciousness” view would claim, instead, that a new individual would be created for each mind-body switch—each a recombination of the two original essential features of the previous people. I would, incidentally, further conclude that creating new individuals would be a terribly immoral thing to do, essentially ending the lives—killing—the original people and creating new chimeras. I believe that conclusion squares with and explains the common moral judgment about such a project and explains why the “embodied consciousness” view is much better than either the mentalist or the somaticist positions.

VI. CONCLUSION The five articles in the Journal together with Campbell’s extended book review and Andrew Lustig’s introduction, provide a refreshing, challenging new turn in the definition of death debate. While until recently the common wisdom was that the whole-brain death view was the dominant and most plausible position while the older view focusing on somatic integration localized outside the brain (including circulatory and respiratory functions) and the higher-brain view were each outliers attracting only deviant fringes. With this set of articles, I think, it is now clear that the middle ground, if one can call the whole-brain death view that, is the least plausible of the three major definition of death positions. We face a forced choice between the two more coherent and defensible positions at the extremes.

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I have argued that the somaticist view is inadequate because all it integrates is bodily function, including only one of the two (or three) crucial elements that make up human beings with full moral standing at least according to the most central religious and secular traditions of Western society. While some defenders of the higher-brain view lapse into a parallel error of mentalism, they need not do so. The new defensible middle ground would seem to be the view that requires integration of both mind and body into a single embodied capacity for consciousness. Of course, we live in a liberal society in which, on matters of religion and philosophy, we ought to show tolerance for the views of other traditions with other moral conclusions as long as no one is significantly injured by doing so. I strongly favor adopting some public policy with a default definition of death—perhaps the intermediate one that I have just argued is the least plausible of the positions—with the provision that those who opt for the Judeo-Christian embodied consciousness view or even the mentalist view as well as those who lapse into a view that merely requires somatic integration, should have the right to consciously reject the default position and opt for their own particular definition of death, that is, their own particular view about when full moral standing ends.28

NOTES 1. I use the phrase “whole-brain-oriented” to make clear that, at least in theory, some of those functions could, at some point in the future, be taken over by artificial devices that perform essentially the same functions that the brain presently does. To the extent that a particular brain stem reflex, say a gag reflex, is one of the functions thought to be carried out by the brain that provides integration of the organism, that same function could, in theory, be carried out by a computerized electrical circuit. The function could be retained long after the brain is gone. This is precisely analogous to what I call the “cardiac-oriented-view,” which focuses on circulation, the function normally carried out by the heart, but which not only can, but actually has been assumed by a mechanical pump. For a defender of the cardiac-oriented view, it is not really the heart that is important, but the function normally carried out by the heart, that is, circulation. Barney Clark was clearly alive by any definition of death when he was sitting up in bed talking, even though his heart had been removed and discarded long ago. I use “whole-brain-oriented” and “cardiac-oriented” as shorthand to refer to the underlying functions that are normally carried out by these organs, but could, at least in theory, be taken over by substitute devices. As long as the function remains, the individual would still be alive according to the views oriented to whole brain death or cardiac (or higher-brain) function. 2. While Shewmon’s main point is clearly that most somatically integrative functions are not brainmediated, it is also important if he can show that there are functions of the brain that are not somatically integrating. The standard definition of death based on irreversible loss of all functions of the entire brain is normally supported by a concept of death that is based on irreversible loss of somatic integrating capacity. Insofar as some brain functions are not somatically integrating, it would be a mistake to insist that all functions of the brain need to be lost before death is pronounced. 3. One very thoughtful reviewer of this article pointed out that some may have used the purported lack of long-term survival merely as supportive evidence that somatic integration was lacking when brain function was absent, which may, indeed, make this evidence relevant, but even short-term somatic survival would seem to support, at most, the conclusion that somatic integration was bound to be lost soon, not that it was already gone.


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4. An article that appeared while this manuscript was under review makes it necessary to speak a bit more precisely. Frances Kamm (2002), in her article “Brain Death and Spontaneous Breathing,” pressed us further to be very clear on the relation of brain functions and integrating capacity. I think it is clear that defenders of the whole-brain death position focus on the brain not because any imaginable function that the brain could perform would be decisively important, but rather because empirical neurological science has led people to the belief that the brain is responsible for integrating capacities. As Kamm made clear, if a cell in the toe did the things that the brain does (such as control respiration), the toe (or that cell in the toe) would gain the special status that the brain has gained. The early literature on brain death spoke of the brain being the “locus” or the “standard” upon which death was pronounced according to those who endorsed irreversible loss of integrating capacity as the proper concept of death. In my work, I have always tried to be clear that the organ that happens to carry out certain functions critical for life is merely by empirical linkage singled out as a basis for pronouncing death. 5. Hence, I have sometimes been accused (by Green and Wikler, 1980, and one reviewer of this article) of not being interested in the ontological question of whether there is a proper and correct answer to the “objective nature of human life per se.” I plead guilty. I cannot imagine what purpose would be served by answering that question or how one would go about doing so. That, of course, should not be taken to imply that there is no proper or objectively correct answer to the moral question of when humans should be treated the way we treat dead people. I am convinced there is an objectively correct answer to that question, even if I argue for a conscience clause permitting people to make their own moral judgments in such matters. Thus, even though I am convinced (as I state below) that embodied consciousness is the basis for full standing (and the basis on which one rightfully could be accused of homicide for ending a life), I am aware that others may not agree and make provision for a carefully limited variety of views on this issue (just as we do on most moral matters in which the well-being of others will not be affected). If someone wants to claim that it should not be considered homicide if his or her spontaneously respiring but permanently unconscious corpse is destroyed (perhaps by removal of organs), I don’t see any basis for objecting. Likewise, if someone wanted to insist that, as long as his or her heart was beating, he or she was living (and therefore could be killed) even though his or her brain was already destroyed, I think he or she would be mistaken, but would not object to a public policy permitting such a classification. That would still leave open the policy question of whether “homicide” of this individual with no brain function should be punished the same way we punish homicide of brainfunctioning individuals. 6. In their important 1980 article, Green and Wikler made the error of assuming that when I claimed defining death was a moral decision rather than a biological or ontological one, I was presuming that the moment of death would determine when life-supporting treatment would be stopped. I have never held that view. In fact, when I said that defining death was a moral question, I had in mind the decision to procure organs, to assume the role of widow, and for a health insurance company to stop paying for health services. I also had in mind deciding whether interventions to stop bodily processes should be treated as murder or merely mutilation of a corpse. I had already unbundled the decision whether to stop life-prolonging treatment. 7. If Ronald Reagan were president with his advanced state of Alzheimer’s disease, surely something would have to be done to permanently remove him from office. The issue here, however, is not when it is legitimate to impeach or invoke the 25th amendment to the Constitution to remove from office. Rather it is whether some living presidents should be automatically removed based on a diagnosis alone the way the vice president now automatically becomes president when the previous president is pronounced dead. Assuming the diagnosis of advanced Alzheimer’s can be made precisely, I suspect that the mere diagnosis should be sufficient to remove the president from office. 8. I aggressively and militantly resist the suggestions of Halevy (2001) and others such as Larry Schneiderman that physicians should have a unilateral right to refuse to provide life support they deem futile simply because it violates the health professional’s conscientious understanding of his or her professional duty, but I am open to the possibility that some cases of withdrawal of life support might be authorized (by public due process) against the wishes of the patient if the public finds the treatment useless. The most plausible grounds for such public authorization of withdrawal is that the treatment requires inequitable use of public funds. 9. In fact, as one reviewer pointed out correctly, careful disaggregators do not make any such claim although some suggest that the definition of death may be disaggregated from organ procurement allowing a chance to deal with the moral issues head-on rather than continuing to tinker with the definition of death.

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10. It is an open question whether this property of full moral standing can accrue to any who are non-humans. It would seem that in theory it could. It could apply to Martians bearing certain properties, for instance, and might actually apply to higher primates and, conceivably, to other animals. For purposes of this analysis, however, it is sufficient to posit that certain beings that are genetically human possess this full standing. 11. Thus it is not relevant that critics point out that lower animals and even plants can be said to become “dead” in a biological sense. This is a totally different meaning of the word than the meaning in the definition of death debate ( the one in which we are debating when humans should be treated the way we treat dead humans). It is a mistake to consider this new morally contentful definition an invention on the part of the author. In fact, since 1968 this moral, legal, and public policy meaning has become so common that no one misunderstands a pronouncement of death based on irreversible loss of whole-brain function to be a statement that all biological life is no longer present. To the contrary, such deceased beings are viewed as valuable resources because they contain living biological material. In fact, attempting to get physicians, lawyers, judges, and ordinary citizens to refrain from calling people with dead brains “dead” would be an enormous linguistic undertaking. 12. One of the reviewers of this article apparently misunderstood this as an unjustified assumption that moral status cannot be lost piecemeal. That is not my claim. Moral status clearly can be lost (or gained) piecemeal. It clearly is believed to be gained piecemeal by those who hold that fetuses gradually accrue moral status up until the time when they have the same standing as postnatal humans. Likewise, cadavers can lose moral standing gradually. A fresh cadaver in an autopsy room may have a different standing than the mummified remains of a long-dead individual. More critically, a newly dead candidate for organ procurement can have a different standing than someone long dead and decaying. What I do hold is that one cannot lose “full standing” piecemeal. As soon as one loses a piece of one’s standing it is no longer “full.” Perhaps the reviewer really was not concerned about the assumption that moral status could be lost piecemeal, but rather wanted to propose that some moral behaviors that I have called “death behaviors” might be judged appropriate when one still has full-standing. This, as I make clear here and elsewhere, seems certainly to be correct. At least one can appropriately forgo life-support while full standing is still present. My claim is merely that there will remain a core cluster of behaviors that becomes appropriate when, and only when, full standing is lost and that this must occur at a moment in time, not piecemeal. 13. I place the term “dead people” in quotation marks because, at least according to some people, no one who is dead is a “person” any longer. We would, if we were speaking precisely, talk of a deceased human being as a “dead former person” or “a person’s remains.” I will, however, use the common expression even though it seems obvious that once someone is dead, he or she is no longer a person. 14. I suggest that the moment when a spouse becomes a widow or widower is also going to end up being linked to this moment of loss of full moral standing as is probably the loss of one’s assets through having them pass to others through inheritance, but I have not fully developed this analysis. Here I merely suggest these are likely to be additional death behaviors that are part of the “core cluster” that will remain aggregated. I can’t think of any good reason why the spouse’s marital status would automatically change at any other time as a matter of public policy (although it surely could change sooner if the spouse chose to seek a divorce). Likewise, I can’t think of any good reason why one’s assets would automatically pass to one’s beneficiaries at any earlier or later time (although one could surely give assets away earlier or specify in a will that they pass to ultimate beneficiaries at some point after death). 15. Shewmon (1997, pp. 80–83) has suggested that in certain special cases removal of organs that are normally life-prolonging may occur in living people without such removal having any effect on the person’s dying. His example is the case of someone who has justifiably refused life support and who will die from some other cause before the removal of the organ would have had a chance to end the individual’s life. Similarly, removal of an organ that is normally “life-prolonging” and replacing it with another functioning organ (natural or artificial) would remove the organ from the category of those that are “life-prolonging.” (On occasion surgeons have removed normal hearts from certain patients for the purposes of implanting a new heart-lung block in patients with critical lung disease. The surgery is sometimes believed to be technically more appropriate. The removed heart can then be transplanted to another recipient. The goal is to preserve life by implanting a new heart as well as lungs. The removed heart in this case is not a “life-prolonging” organ. Hence, it still holds that removing a life-prolonging organ will cause death).


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16. Organ removal from a living individual is not a suicide or even an assisted suicide (as long as the individual lacks the capacity to remove his or her own organs). It is a homicide. If it is done at the individual’s request, it is a “homicide on request.” 17. Without that qualification, of course, the dead donor rule could have exceptions. My claim that the dead donor rule is true “by definition” is meant to address the fact that normal organ procurement (i.e., organ procurement without a justification of homicide) can occur only from those who do not have full moral standing and those are the people we call “dead” by definition. 18. Moral standing and the definition of death could still have nothing directly to do with biology. The biological feature could be merely a marker or indicator that normally, indirectly tells us of the presence of some function determined outside the discipline of biology to be critical. Thus a defender of a definition of death based on the flow of blood and breath might normally look for a beating heart as indirect evidence that fluid is flowing although it is possible that fluid could be flowing without a beating heart (consider Barney Clark) and even that a heart could be beating, at least temporarily without fluid flow. What is critical is that no amount of biological research can answer the question of whether fluid flow is the proper basis for moral standing. Biological activity is, at best, indirectly related to the definition of death. 19. Or to come up with some reason why anencephalics are dead in the sense of being without full moral standing that does not apply equally to all others who are permanently without consciousness. 20. I do not mean to imply here that all somaticists necessarily equate death with loss of full moral standing the way I do. At least one anonymous reviewer of this article, who I take to have a very thorough and sophisticated understanding of the somaticists’ perspective, explicitly denies that loss of moral standing is related to the definition of death. Rather that reviewer understands death to be an ontological change in status, a ceasing to exist. That reviewer holds that “moral standing derives from an immaterial, spiritual dimension or co-principle of human persons, traditionally called ‘soul.’” This view he places in the Aristotealian-Thomistic tradition. It could be, however, that this sophisticated somaticist and I do not differ much on when full moral standing is lost. I place it with the irreversible loss of embodied consciousness while that reviewer identifies it with the (irreversible) loss of the soul. Why that reviewer wants to continue a controversy over the definition of death if it has nothing to do with anything that counts in moral, legal, and public policy, is unclear to me. 21. I am, of course, not insisting that everyone adopt the fundamental tenets of Western religious or philosophical thought. I do hold, however, that, at least in the United States, these tenets are held by a great many people, presumably a majority, and that any definition of death in the United States or other Western cultures should permit those tenets to be reflected in their definition. I have elsewhere (Veatch, 1976; 1999) defended a conscience clause for the definition of death that would permit people to pick among a reasonable range of definitional options. 22. I acknowledge that the traditional language of Christianity spoke of soul and spirit in addition to the body in its anthropology. I believe modern people of this tradition find the notion of “soul” impossible to comprehend and further claim moderns speak of “mental function” as functionally equivalent. Moreover, it may be that “integration” is not exactly the concept that traditional members of this religious tradition had in mind. A sophisticated reviewer suggests that “union” is a more appropriate concept. Though Shewmon has suggested that individuals with high spinal cord injuries or locked-in syndrome, among other conditions, represent almost complete lack of integration of body and mind, none of these examples represents complete lack of integration of body and mind and, even if they did, such bodies would still present what I refer to as embodied consciousness. An individual with locked-in syndrome would clearly be a living individual with consciousness in a human body. That consciousness would be conscious of its presence within a particular body and would thus remain integrated with it. It would, for example, be aware that it was a male, was a certain age, was a member of a certain race and, with the aid of a mirror, would be aware of the body’s physiognomy. These are all, for me, critically important elements of integration—as we shall see in the next section of the article in which I reject the mentalists’ position as lacking sufficient consideration of the body’s importance. 23. Of course, the definition of death cannot contradict what we know about human biology, but knowing everything in human biology cannot tell us which functions are critical for treating humans the way we treat the living. 24. Some early Christians supported a “tripartite anthropology,” one that held that the human was made up of body, soul, and spirit. This tripartite view is seen in the biblical writer, Paul, and in Erasmus as well as my favorite 16th century theologian, Balthazar Hubmeier. It is possible that Shewmon and

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some other somaticists would claim that my linking the traditional Christian notions of soul and spirit with the more modern notion of mind is unacceptable. I am prepared to consider that the archaic terms, soul and spirit, do not exactly convert to the more modern term mind. If that is true I am left with the position that those who consider human life to be essentially the integration of bodily and mental functions are either modern secular thinkers or modern proponents of a Christian theology that is not quite identical to the ancient version. 25. While Shewmon, at least in his recent writings (1997, p. 35), like the sophisticated reviewer of this manuscript, preferred to identify life with the presence of the “soul” rather than with mental function (suggesting that my view reflects Cartesian dualist error), they would both gain from a sophisticated article by a confirmed Thomist who argued convincingly that consciousness was an essential characteristic of human life and that the Thomistic notion of soul could avoid the errors of Cartesian dualism (Shewmon, 1985, pp. 63–65). This article interprets the Thomistic notion of soul so that, if it does not explicitly involve mental function, at least involves faculties of “will” and “intellect,” two functions both closely linked to mental function. 26. It is totally independent in the sense that one can clearly be a living human being without being a person in the sense I describe below, but it is also the case that, according to some theories of personhood, one would continue to be the same person even if one were completely separated from one’s body by a download onto a hard drive connected to a computer sophisticated enough to permit continued consciousness. One would arguably no longer be a member of the Homo Sapiens species, but the person would continue to live nevertheless. 27. One of the greatest and most heated exchanges in the early days of the Institute of Society, Ethics and the Life Science’s (the Hastings Center) Death and Dying Task Force was an evening spent cogitating on how we would describe the result if we were to place Paul Ramsey’s mind in the body of Henry Beecher’s wife. Paul, reflecting his rigorous Judeo-Christian orientation as well as perhaps his gut feeling, insisted that his mind should not consider itself married to Henry. 28. This view, in which dissenters from a default position can opt for a plausible range of alternatives has long been my view and has been defended elsewhere (Veatch, 1976, p. 74; 1999). In the end it may not matter too much which position is the “default.” Some, especially the defenders of the somatic integration view, would prefer the “safer course” of making their position the default so that no one would be called dead by the more liberal views unless he or she chose it. Making a somatic integrating (or at least a circulatory and respiratory) view the default is currently the law in Japan (although those who choose a whole brain view may have their choice acted upon only if they become candidates for organ donation (Zoki no Ishoku nikansuru Horitsu [“The Law concerning Organ Transplantation,” July 16th, 1997, Law No. 104 of 1997]).

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