We live in a "disposable society," where it is common to discard whatever no longer functions. When a declaration of "brain death" is based on absence of brain functions, the individual is declared "dead" but then is often treated as "alive" until it is more convenient to take organs. This represents a major and unacceptable change in the patient-doctor contract, as well as in patient-hospital relations, and in social relations as well.

"Brain death" revolves around a person's being dead enough to have vital organs legally removed yet not dead enough to be cremated or buried. Organ transplantation is the main reason "brain death" was devised. We are not opposed to organ transplantation, but we are opposed to removing a vital organ from someone who, if he or she is not yet dead, certainly will be dead after the organ has been removed. We are likewise opposed to research on those determined to be dead based on cessation of brain functions, but who are otherwise alive.

LIVING-NOT DEAD

The life span on earth for a person is somewhat analogous to a line drawn on a board. The line has a beginning and an end. Life on earth for a human being is a continuum from the beginning to the end. At any point on the continuum, he or she is the same human being. Needless to say, life is not smooth. Thus, like life, the line can be drawn with its ups and downs. Often, just before death, it can be said that the person is critically ill, and it seems that the patient will not live on Earth much longer. The patient is alive and living. Death is the state of absence of life. Death is a negative. After death what can be observed is destruction, and continued destruction, of the remains of someone.

If he or she is not dead before, he or she will certainly be dead after vital organ removal

The pronouncement of death has changed radically over the past 30 years. Before 1970, the physician and other interested parties had only one objective - to be sure that a person not be buried or cremated alive. The new approach is not as sure - now, there is needless risk of sacrificing one patient's life to benefit another. For example, the expense of medical care may be a factor for the relatives of those who pay the bills, or another patient may benefit through organ transplantation, or the physician might benefit. Often the limits for liability after the death of a patient are less than the liability for continued life with a handicap. Or how about benefit for all mankind? Research has been done after the declaration of "brain death" based on absence of certain brain functions.

"BRAIN DEAD"-TREATED AS ALIVE

The person is declared to be "brain dead", but then is treated as "alive" - declared to be "brain dead" based on absence of some brain functions, but the heart is beating, blood pressure can be recorded, and when the knee is tapped, the knee jerk is present. The skin color is normal, but when pressure is applied to the skin, it will blanch. The color will then return when the pressure is removed. The person is declared "brain dead" but is treated as alive - a contradiction. Suction and postural drainage are done to prevent pneumonia. The patient is turned to prevent bedsores. How can a cadaver develop pneumonia or a bed sore?

Is the person dead? If the answer is no, then he is still alive and must be treated as such. If the answer is unknown, one is not free to remove vital organs and possibly kill a living person. If the answer is yes, then the question is, which set of criteria was used to make the determination of "death"?

Brain-related criteria for death revolve around three types of observations. The first is clinical observation of absence of certain brain functions, e.g., shining a light in the eye and observing no response of the pupil or putting ice water in the ear and observing no eye movement. Another is doing an electroencephalogram, commonly known as an EEG. The EEG is a recording of electrical activity from the surface of the brain. Little or no information is obtained from deeper in the brain. The Minnesota and British criteria (sets of standards for diagnosing brain death) do not even include the EEG. A third method, included in some criteria, is a technique used to evaluate absence of circulation to the brain. These circulatory tests are not absolute and at times might actually result in the side effect of spasm of the vessels, thus causing what is being searched for, i.e., no circulation to the brain.

"Brain death" criteria equate loss of functioning with physical destruction. An analogy to help understand this is to consider that a computer cannot function without electrical current. Yet it is not destroyed and can function again when electricity is supplied. During sleep there is loss of some functioning of the brain that recovers with or without an alarm clock. Narcotics and toxins result in cessation of many brain functions. An antidote or body metabolism restores these functions. Destruction includes alteration of the basic structure i.e., structural or organic change resulting in losing the capacity to function. "Brain death" criteria determine only cessation of function, not destruction of even the brain, much less destruction or death of the person.

SUSPECT CRITERIA -40 WAYS TO BE "BRAIN DEAD"

Brain-related criteria are not based on valid scientific data. The Harvard Criteria were published without any patient data, and there were no references to basic scientific reports. The Minnesota Criteria evolved from a study of 25 patients. Only nine had an EEG done and of these, two had "biologic" activity in their EEG after "brain death" had been declared. The conclusion: No longer is it necessary to do an EEG.

A patient could be declared dead by one set of criteria and alive by another

It seems scientifically invalid not to use an EEG in the diagnosis of "brain death" if any degree of certainty is to be obtained. The British Criteria do not include the EEG. This omission was due to the influence of the Minnesota Criteria, which do not require an EEG. The National Institutes of Health Criteria were based on a very limited study and were supposed to be verified by a larger study. But this was never done. There are more than 40 sets of criteria. A physician is free to use any one of these 40 sets. Thus, patient John Doe could be determined "brain dead" by Doctor A who chooses to follow one set of criteria and, yet, Dr. B, by adhering to a different set of criteria could confirm that this same John Doe is, in fact, alive.

BENDING THE CRITERIA

No matter how seemingly rigid the criteria are, the ease with which they can be bent is manifested in the report by the 1981 President's Commission for the Study of Ethical Problems in Medicine and Biomedical Research (page 162): "An individual with irreversible cessation of all functions of the entire brain, including the brain stem, is dead. The 'functions of the entire brain' that are relevant to the diagnosis are those that are clinically ascertainable." In one sentence, whatever stringency there was has been reduced to no more than what can be "clinically ascertainable." Thank God there is more physiology taking place in all of us than what is clinically ascertainable.

If one uses the Minnesota Criteria, the British Criteria, or the published Guidelines of the President's Commission, it is not necessary to include EEG evaluation in determining "brain death." Thus, if the cortex is still functioning, but is wholly cut off from manifesting its activity clinically by damage elsewhere in the brain - something that does occur and which an EEG can clearly show---then this functioning (which could involve memory, feelings, emotion, etc.) is suddenly considered irrelevant to the person's life or death. According to the NIH Study, 8% of patients declared dead on the basis of criteria that omit the EEG still have cortical activity when evaluated by non-clinical means (EEG). Action such as excision of a beating heart, then, results in killing at least one in twelve under such circumstances. As Dr. A. Earl Walker (Clinical Neurosciences, 1975) wrote, this represents "an anomalous and undesirable situation." The general public probably would use much stronger words.

Dr. Norman Fost wrote in The Journal of Pediatrics in January, 1981, there is 'deep disagreement…whether brain death is synonymous with death. Death of the brain is not the same as death in a traditional sense." With such disagreement, why does every state have a "brain death" law?

DEAD MOTHER - LIVE BABY

Editorial comment in The Journal of the American Medical Association on Sept. 3, 1982 includes "[N]ow we are told a brain dead patient can nurture a child in the womb, which permits live birth several weeks post-mortem? Perhaps this is the straw that breaks the conceptual camel's back…the death of the brain seems not to serve as a boundary; it is a tragic, ultimately fatal loss, but not death itself."

The American Medical Association, the American Bar Association, and the Uniform Law Commission, as well as others, have supported the Uniform Determination of Death Act (UDDA).

The UDDA accepts two separate, readily distinguishable clinical situations as death, both of which can be manifested successively in the same individual. For example, an individual can be determined to be "dead" based on any one of more than 40,non-identical sets of criteria (which in itself should cause considerable concern) for determining "irreversible cessation of all brain functions." At that point, in practice, the ventilator will often be continued. Everyone in attendance can witness the intact circulatory system via the sound or oscilloscopic display of the beating heart and blood pressure. The intact respiratory system is manifest through the normal color of the skin. The exchange of oxygen and carbon dioxide can be verified by determining blood oxygen and carbon dioxide levels. The intact interdependent functioning of circulatory and respiratory systems can be observed easily by any and all, merely by applying pressure to the skin, resulting in blanching only to be followed by normal color within a few seconds after removal of the pressure. With more sophistication, an intact endocrine system (pituitary, thyroid and adrenal hormone production) can often be demonstrated. Detoxification by the intact liver can be documented through appropriate testing. If the individual declared "brain dead" is pregnant, then the mother and the fetus can be maintained until the fetus matures and is better able to adjust to extrauterine environment (JAMA , Sept. 3, 1982)

Clearly there are many signs, including the vital signs, which both physicians and laymen are accustomed to associate with being alive. When support by the ventilator is stopped, everything else might stop, or sometimes, the individual resumes spontaneous breathing.

In the process of declaring "brain death," an apnea test is done. This involves stopping the ventilator and observing the patient. During this test the carbon dioxide increases which causes acidosis. This test could cause the patient's condition to get worse. Then, according to the UDDA, the individual manifests the other set of criteria, irreversible cessation of circulatory and respiratory functions, the findings more identified with what has been acceptable for centuries as death. Are we not being asked to accept two clearly distinguishable situations as equivalent and identical?

To be fully informed about organ donation and transplantation requires that the donor be informed that "brain death" is not identical and equivalent to true biological death. Only healthy organs are suitable for transplantation. Circulation and respiration must be occurring in a living person until organs are taken. After a declaration of "brain death," minutes before the heart is cut out, the transplant surgeon stops the heart. After the heart is excised the donor is truly dead.

REALIZE…

To say that a patient with a beating heart, normal pulse, normal blood pressure, normal coloring and a normal temperature is dead is false.

To remove an unpaired vital organ prior to true death is ethically and morally unacceptable.

If brain-related criteria are not based on valid scientific data, removal of an unpaired vital organ results in death.

To consent to or decline permission for organ donation requires that the donor or surrogate be fully informed about the meaning of the declaration of "brain death" and organ transplantation.

"Brain death" laws, followed by living will and death-with-dignity laws, are a part of, or lead to euthanasia or epivalothanasia. Epivalothanasia is a Greek word translated as "imposed death," which is more accurate than "euthanasia." In the Netherlands, a person can be legally killed without his or her consent

A human being is a person throughout life. Attributes of a living human being include thinking, judging, loving, willing, and acting. When it is predicted that a particular living human being will not be capable of demonstrating these attributes again, this living human being does not become a non-person. He or she is still a living human person with human rights. To say that a patient on a ventilator declared "brain dead" is certain to die and therefore is no longer a person, is to deny reality.

Great care must be taken not to declare a person dead even one moment before death has actually occurred. Death should be declared only after, not before, the fact. To declare death prematurely is to commit a fundamental injustice. A person is still alive, even a moment before death and must be treated as such.

In conclusion, we believe that destruction of the entire brain can occur, but that the criteria to determine this state reliably have not been established. Cessation of brain function is not the same as destruction. Death ought not to be declared unless there is destruction of the entire brain, and of the respiratory and circulatory systems as well.