Transplants From Murder Victims: Diverging Definitions of "Brain Death"

E. Christian Brugger
Feb. 2, 2011 (
© 2011 Zenit News Agency and Culture of Life Foundation.
Reproduced with Permission
Culture of Life Foundation

Here are two questions on bioethics asked by ZENIT readers and answered by the fellows of the Culture of Life Foundation.

Q: Can the adult stem cells or eyes or other organs of a murder victim be used for the benefit of others, if the person was not murdered for the purpose of harvesting his or her organs? -- Sister C., Lincoln, Nebraska

E. Christian Brugger offers the following response:

A: Persons who wish to donate their organs when they die may formally designate themselves as organ donors. This intention is often indicated on some document such as a driver's license. The intention is not only legitimate but can be praiseworthy (as John Paul II suggests in "Evangelium Vitae," No. 86).

If persons have designated themselves as organ donors, then executing their wishes after they die, even if they have been murdered, is perfectly legitimate.

Brain death

Q: Much controversy centers on the practice of organ donation by a willing donor, because of moral and scientific concerns surrounding the concept of "brain death" and the use of this concept as the determining factor apropos of the donor's state of living. Could you please expound on acceptable methods of determining if a person is dead in order to be sure that vital organ removal always conforms to the "dead donor" rule and is not itself the mechanism that kills the person. -- John Wilks B.Pharm., MPS., MAACP Consultant Pharmacist

E. Christian Brugger offers the following response:

A: In his 1995 encyclical "Evangelium Vitae," Pope John Paul II commends organ donation as a salutary sign of support for a culture of life since it offers "a chance of health and even of life itself to the sick who sometimes have no other hope" (No. 86).

Teaching in particular on the donation of "vital organs" in an Address to a Congress on Organ Transplants in August 2000, the Pope said they may only be removed after death - "that is from the body of someone who is certainly dead" (No. 4).

He teaches that "moral certitude" that a person is dead is required before harvesting vital organs for transplantation can be morally legitimate.

The Catechism of the Catholic Church describes human death as "the separation of the soul from the body" (No. 997). This is a philosophical and theological description, not a practical criterion for determining whether death has occurred.

Death constitutes, John Paul II says, "a single event consisting in the total disintegration of that unity and integrated whole that is the personal self" (To Congress of Transplants, No. 4). Although we cannot identify the event directly, we can identify biological signs consequent upon the loss of that unity. This is what science does when it proposes to us standards (or signs or empirical indicators) for a determination of death.

For purposes of organ removal, there are two commonly accepted sets of criteria for determining that death has occurred: the "cardio-respiratory" standard and the "neurological" standard (sometime referred to as the "whole brain death" criterion). The Uniform Determination of Death Act formulated in 1981 by the President's Commission and widely adopted throughout the U.S. defines the first as the "irreversible cessation of circulatory and respiratory functions", and the second as "the irreversible cessation of all functions of the entire brain, including the brain stem." Although each criterion focuses upon a limited set of critical functions, the state of death of the entire human organism is thought to be able to be inferred by focusing on any one of them.

In his 2000 address, John Paul II says that when "rigorously applied" the neurological criterion "does not seem to conflict with the essential elements of a sound anthropology." He goes on to say "therefore a health-worker professionally responsible for ascertaining death can use these criteria [i.e., cardio-respiratory and neurological] in each individual case as the basis for arriving at that degree of assurance in ethical judgment which moral teaching describes as emoral certainty'" (No. 5).

In other words, the pope states that the neurological criterion seems to be a reliable basis for arriving at moral certitude that a person has died, which is required before harvesting vital organs can be legitimate.

Does this judgment of the reliability of the neurological ("whole brain death") standard for ascertaining human death and so for securing moral certitude constitute, properly speaking, an authoritative teaching of the Magisterium? The judgment is based upon a scientific premise that such and such empirical indicators correspond to an absence of human life. This is a technical matter bearing on the adequacy of those indicators for accurately signifying that death has occurred.

The Church's (and hence the Pope's) authority to teach extends only to matters of faith and morals. John Paul II states this when he says:

"With regard to the parameters used today for ascertaining death … the Church does not make technical decisions. She limits herself to the Gospel duty of comparing the data offered by medical science with the Christian understanding of the unity of the person, bringing out the similarities and the possible conflicts capable of endangering respect for human dignity" (No. 5).

It is clear that the reliability of the scientific premise rests entirely upon the soundness of the scientific data and the interpretation of that data. Thus the papal affirmation that the neurological standard is a reliable indicator of death is not grounded in any truth of faith or morals.

John Paul II states that the "neurological" standard is "considered the sign that the individual organism has lost its integrative capacity" (No. 5). Now the judgment that death is coextensive with an "individual organism [losing] its integrative capacity" is certainly grounded in a sound conception of the human person as rooted in Catholic tradition. But -- and this is very important -- the judgment that the neurological standard is a reliable sign that this has occurred rests on the credibility of the scientific interpretation. Notice the pope says, "considered the sign" (emphasis added). "Considered" by whom? By the scientific community, not by the Gospel, the teachings of the apostles, or the authoritative tradition of the Church.

Now if evidence emerged from further research contradicting certain putatively accepted interpretations of the scientific data, then there would be no conflict with Catholic faith or morals, or with the obedience due to the teaching of the Magisterium, in raising questions regarding the soundness of the original standard.

This is where much of the "controversy" mentioned in the question above stems from.

Research has emerged in the past decade, especially by D. Alan Shewmon, professor of pediatric neurology at UCLA Medical Center and Consultant for the Pontifical Academy of Sciences, challenging the reliability of the widely accepted neurological standard.

Recall the pope says that death consists in the "disintegration of that unity and integrated whole that is the personal self" (no. 4), and that we can identify biological signs that follow upon the disintegration. It seems to follow that an apparent absence of certain biological signs of somatic (bodily) disintegration can raise reasonable doubts as to whether death has occurred.

Shewmon's research demonstrates conclusively that the bodies of some who are rightly diagnosed as suffering whole brain death express integrative bodily unity to a fairly high degree.

Brain dead bodies cannot breath on their own since the involuntary breathing response is mediated by the brain stem, which has suffered complete destruction. So the bodies need to be sustained on a mechanical ventilator, which supports the body's inspiration and expiration functions (breathing in and out). But with ventilator support, the bodies of brain dead patients have been shown to undergo respiration at the cellular level (involving the exchange of O2 and C02); assimilate nutrients (involving the coordinated activity of the digestive and circulatory systems); fight infection and foreign bodies (involving the coordinated interaction of the immune system, lymphatic system, bone marrow and microvasculature); maintain homeostasis (involving a countless number of chemicals, enzymes and macromolecules); eliminate, detoxify and recycle cell waste throughout the body; maintain body temperature; grow proportionately; heal wounds (i.e., the immunological defense of self against non-self); exhibit cardiovascular and hormonal stress responses to noxious stimuli such as incisions; gestate a fetus (including the gaining of weight, redistribution of blood flow favoring the uterus, and immunologic tolerance toward the fetus); and even undergo puberty.

The data is indisputable. Yet there is considerable disagreement on how to interpret the data with respect to the question of human death. Some scholars such as James M. DuBois, writing in the 2009 "Catholic Health Care Ethics" manual published by the National Catholic Bioethics Center, refer to this long list of functions of brain dead bodies as "residual biological activities" no more expressive of life than the twitching of a lizard's amputated tail. Others, including scientists and several philosophers and theologians who, with me, accept magisterial teaching, are less comfortable setting them aside as possible signs of true somatic integration.

Although Shewmon's evidence certainly does not establish that brain dead bodies are the bodies of living (albeit highly disabled) persons, in my judgment, and in that of other competent scholars and scientists, it raises a reasonable doubt that excludes "moral certitude" that ventilator-sustained brain dead bodies are corpses.