22. Persons at the Beginning and End of Life
John P. Lizza
Department of Philosophy, Kutztown University, Kutztown, PA 19530, USA
I shall begin by briefly mapping the historical, legal, and philosophical terrain of how the discussion of death has progressed in the United States since the 1950's with the advent of ventilators and advances in organ transplantation (1). I will then consider cases that challenge the current biological definition of death. I will argue that these cases show that defining death is not a strictly biological matter, but is dependent on moral and metaphysical concepts of humanity and personhood that go beyond biological taxonomy and biological definitions of life and death. Finally, I will compare the problem of defining death with the problem of when personal life begins.
In the 1950's the increased use of artificial ventilators created clinical situations in which the patient's heart would beat spontaneously, but there was no discernible brain activity and respiration was mechanically sustained. To many, it seemed that these patients were more dead than alive, and if so, the traditional criteria of determining death on the basis of cessation of heart and lung functions was inadequate.
These cases also raised the issue of whether the death of the person had to necessarily coincide with the death of the human organism. Recalling Locke's hypothetical case of the prince and cobbler switching bodies in which the life-history of the person could diverge from the life-history of the human organism, some bioethicists regarded these clinical situations as actual cases in which the life-histories of the person and human organism diverged (2). These cases also raised the issue of what it is that literally dies. Do persons, understood as in some sense either as distinct from or non-reducible to the human organism, "die?" Or is death something that can only be predicated to the human organism?
In the 1960's, advances in organ transplantation techniques and some strange legal cases provided additional impetus to rethinking the legal definition of death. Since organ transplantation requires well-preserved organs and is facilitated by removing organs from the donor as soon as possible, there was interest in declaring death at the earliest possible moment. Adopting a neurological or brain-based criteria of determining death would enable death to be declared earlier in some clinical situations. The "strange" legal cases included one in New York in which a woman was clubbed into a comatose condition and was placed on a ventilator. A physician later removed her from the ventilator. The accused argued that the doctor's action, not the clubbing, caused the woman's death. The physician, on the other hand, argued that the woman was already dead when he shut down the ventilator (3). Another case in Virginia involved a laborer, Bruce Tucker, who fell and suffered a massive head injury. The patient was clinically saved by electrical shock to the heart, but had a flat electroencephalograph "with occasional artifact." An organ transplantation team removed Tucker's heart, and argued that Tucker had died, even though Virginia law at the time defined death as the cessation of all bodily functions. In a suit brought by Tucker's family challenging the surgeon's action, the Virginia court found in favor of the surgeon. This was interpreted as the court's endorsement of neurological criterion for determining death (4).
In 1967-68, an Ad Hoc Committee of the Harvard Medical School, under the leadership of Henry Beecher, proposed that "irreversible coma" (a permanently non-functioning brain) be accepted as a new criterion of death (5). In 1970 Kansas became the first state to legally adopt the recommendation of the Harvard Committee. Many other states, however, had not adopted the new criterion, and thus there was a problem that someone could be dead in Kansas but alive, say, in the neighboring state of Missouri.
To address this problem, the Presidential Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research was established in 1981 to propose a uniform statutory definition of death that could then be adopted by all states in the union. The result of the Commission's efforts was the Uniform Determination of Death Act, which holds that "An individual who has sustained either (i) irreversible cessation of circulatory and respiratory functions, or (ii) irreversible cessation of all functions of the entire brain, including the brain stem, is dead." (6) By 1994 every state in the United States had adopted either judicially or legislatively the provisions of the act. Two states, New York and New Jersey, are exceptional in having subsequently enacted "conscious clauses" which allow individuals who do not accept any neurological criterion of determining death to have only the traditional criterion of cessation of heart and lung functions apply. This applies primarily to some Orthodox Jews and some American Indians who on religious grounds reject the neurological criterion.
Although the Presidential Commission endorsed a neurological or brain-based criterion of death in addition to the traditional heart and lung criterion, the Commission claimed that the neurological criterion does not introduce a new concept of death, but merely provides another means for determining when death, as traditionally understood, occurs (7). The rationale offered by the Commission was that it viewed death in the traditional sense to mean the loss of integration of the organism as a whole. Just as the irreversible loss of heart and lung functions marks the loss of integration of the organism as a whole, so, the Commission argued, the loss of all brain functions marks the loss of organic integration. Death occurs when functions essential to the maintenance of the organism as an organism, as opposed to a collection of organic parts, permanently cease. James Bernat, Charles Culver and Bernard Gert later formulated this idea in terms of the following formal definition of death: "the permanent cessation of the functioning of the organism as a whole." (8) They argue that this definition captures what death means for any type of organism.
The Commission rejected a higher brain formulation of death that would define death as the irreversible loss of consciousness (9). On this view, a person is dead when there is an irreversible loss of all "higher" brain functions. The "personhood argument' for the higher brain formulation holds that the capacity for consciousness is a necessary condition of personhood, and that death occurs when a person irreversibly loses this capacity. Advocates of the personhood argument view consciousness as dependent on certain higher-brain functions, and when those brain functions cease, the person dies. Under the higher-brain formulation, individuals in persistent vegetative state, who have irreversibly lost all higher-brain functions, but have retained functions of the brain stem such as the regulation of breathing and heartbeat, should therefore be considered dead. A breathing human body is not itself a person, and without a functioning higher brain, individuals in PVS are merely breathing bodies (10).
The Commission also rejected a non-brain formulation of death that would define death exclusively in terms of loss of heart and lung functions or, in more traditional terms, "the cessation of the flow of vital fluids." (11). As noted above, the Commission argued that the concept of death as the loss of integration of the organism underlies the traditional criteria for determining death, and that the same phenomena could now be determined by neurological criteria.
It is important to note that although the UDDA stipulates that all brain functions must cease in order for an individual to be declared dead, it is unclear how the Commission's concept of death as the loss of integration of the organism as a whole justifies this requirement, and not the more limited requirement that only brain stem functions must cease. As Stuart Younger and Edward Bartlett have pointed out, the rationale behind this definition of death does not support the whole-brain criterion of death that the Commission, Bernat, and others endorse (12). Instead, it only supports adoption of a more limited brain stem criterion, since it is the brain stem, not neocortical structures, that are responsible for integrating the organism in a life-sustaining way. In addition, because "the permanent cessation of the functioning of the organism as a whole" is supposed to capture the idea that any organism dies when it loses its internal, organic integration, it is unclear why it is necessary that higher-brain functions must cease, since those functions are not essential to the integration of the organism as a whole. Higher-brain functions would appear to be as necessary to the functioning of the organism as a whole as, say, fingernail growth. Indeed, it is precisely because the proponents of the above definition do not regard higher-brain functions as necessary for the integration of the organism as a whole, that they do not regard individuals in PVS as dead.
The point is that the trans-species definition of death accepted by the Commission, Bernat, and others entails that higher-brain functions are unnecessary to the continued existence of the human organism as a whole, and therefore the loss of integrative organic functions (the breakdown of the heart-lung-brain stem system) suffices for death. The problem with this definition, however, as Younger and Bartlett have pointed out, is that it has the absurd implication that patients in locked-in syndrome are dead. In the locked-in syndrome, the portions of the brain responsible for consciousness and cognition are intact, but those portions of the brain responsible for integration of vegetative functions have been destroyed. The patient in locked-in syndrome has thus died in the trans-species sense of "the permanent cessation of the organism as a whole," even though this patient retains cognitive function. Many are unwilling to accept the idea that the patient in locked-in syndrome has died.
This criticism of the whole-brain theory brings to the fore a central issue in the debate over the definition of death: whether the move to a neurological criterion of death can be justified by treating the human being simply as one among many organisms and regarding death as a purely biological phenomena or whether it requires treating the human being as distinctive among organisms, i.e., as a person and regarding death as a metaphysical and moral phenomena in addition to its being a biological phenomena (13). Proponents of the higher brain formulation argue that the use of neurological criteria for determining death makes sense ultimately because the patient is permanently unconscious. The irreversible loss of consciousness, i.e. the sine quo non of personal life, is what matters to us about our death. If it didn't matter, there would be no reason for endorsing any brain based criterion for death. If this is right (and I believe it is in light of Bartlett and Younger's criticism), then our concept and criterion of death depend on which perspective we take on the human being: whether we treat the human being as a personal or organic being.
Suppose we try to opt for treating the person as an organic being and defining death in strictly biological terms. Thus, suppose we return to the traditional notion of death as the irreversible loss of heart and lung functions, the cessation of the flow of vital fluids. Jay Rosenberg has perhaps more carefully characterized this condition as the irreversible loss of the capacity or ability of an organism to preserve or increase its structural organization through causal interactions with its environment, what he calls, the organism's "syntropic ability." (14)
There are two problems with this approach. First, consider the hypothetical case of artificially sustaining a decapitated human body, so that what remains retains some syntropic ability, i.e., it continues to causally interact with the environment in ways that maintain its structural organization and that prevent its decay. Acceptance of Rosenberg's strict biological definition of death would commit us to saying that the person or human being has not died despite the decapitation. However, many of us have the intuition that the person would have died, and that what remains cannot be identified with the person or subject that used to be. Indeed, I would suggest through our use of the technology we would have created a new type of entity, a biological artifact, rather than a means to extend the life of a person or human being.
The second problem is that even when the human organism satisfies the traditional definition of the death as the irreversible cessation of the flow of vital fluids, certain features of the organism are still alive, e.g., fingernails continue to grow, some cells continue to reproduce. Some syntropic ability remains. This shows that we need to specify the kind of life that dies - that a human or personal life has ended even though some cellular life continues. However, our understanding of death is then inextricably tied to conceptions of humanity and personhood. Moreover, these conceptions cannot be reduced to biological ones, and they are culturally relativistic (15).
In sum, death can be defined as a change in kind of living entity marked by the loss of some essential property. The criteria for the death of a person or human being will therefore be determined by the loss of whatever properties are deemed essential to the nature of a person or human being. In addition, what is deemed essential to the nature of a person or human being will vary with different metaphysical, religious, or other cultural beliefs.
I shall now turn to the last section of this paper: the connection between issues concerning the beginning and end of life. While there are variations in cultural beliefs regarding the nature of a person or human being, there is a remarkable consistency in the Western philosophical tradition in support of the idea that some cognitive function is essential for personhood. While philosophers in the Western tradition have defined persons differently and have suggested different properties as essential to personhood, there is general agreement that some cognitive function is a necessary condition for being a person. For example, Aristotle claimed that man is essentially a rational and social animal (16); Descartes, that thinking is essential to the nature of a person (17); Locke, that a person is an object essentially aware of its progress and persistence through time (18). Hume, that persons are bundles of psychological characteristics (19); Kant, that persons are rational agents who, among other things, can synthesize experience and act on moral principles (20); and Sartre, that persons are self-conscious, intentional beings. Among contemporary theorists, P. F. Strawson holds that a person is a particular entity to which we can ascribe psychological and corporeal characteristics (21). David Wiggins holds that a person is "an animal falling under the extension of a kind whose typical members perceive, feel, remember, imagine, desire, make projects, move themselves at will, speak, carry out projects, acquire a character as they age, are happy or miserable, are susceptible to concern for members of their own or like species, ... [note carefully these and subsequent dots], conceive of themselves as perceiving, feeling, remembering, imagining, desiring, making projects, speaking ..., have and conceive of themselves as having, a past accessible in experience-memory and a future accessible in intention ..., etc." (22). Wiggins believes that persons are constituted by human bodies, but are not identical to them. He deliberately leaves his characterization of persons open for additional traits, and makes no claim as to which particular traits are necessary or sufficient for being a person. Many other contemporary philosophers writing on personal identity could be added to this list (23). Indeed, it is difficult to find any theorist who denies that some cognitive function, or at least the potential for some cognitive function, is necessary for something to be a person. Thus, while philosophers in the Western tradition have disagreed over which specific cognitive functions are necessary and sufficient for being a person, they all believe that some type of cognitive function is necessary for something to be a person. Any being devoid of the capacity for cognitive function would by implication lack each of the particular characteristics that these philosophers use to define persons.
Moreover, since the neurophysiological basis of any of the cognitive functions that typical persons manifest is destroyed in the case of some individuals in PVS (24), there is an implied consensus among philosophers in the Western tradition that they are not persons. Finally, if death is a change in kind of living entity marked by the loss of an essential property, then the philosophical tradition strongly supports the claim that a person who has irreversibly lost all cognitive function has died.
It is important to note that this consensus is only about a minimal, necessary condition of personhood. It will therefore not be much help in resolving the issue of when personal life begins. To settle that issue, we would need a consensus on the sufficient conditions of personhood. However, as the debate over abortion reveals, we have failed to arrive at a consensus on that issue.
Debate over abortion has often centered on the status of the entity to be aborted. Those who believe that human or personal life begins at conception have maintained that the human zygote, like any other individual human life, has rights and is deserving of respect. Others who may admit that the human zygote is a member of the human species have argued that it is not a full-fledged human being, and that it needs to acquire some other characteristic, e.g., sentience, brain activity, consciousness, rationality, or capacity for interpersonal relationships, before it is entitled to rights. On this view, the human zygote is at best a potential human being or person, and debate has then focused on the moral implications of this potential. Still others have distinguished persons from human beings, and have maintained that only persons are the kind of entities that have rights and are members of the moral community. The human zygote and, on some views, even infants are excluded from the class of persons, because they lack one or more characteristics that are thought necessary for personhood, e.g., sentience, brain activity, consciousness, rationality, or capacity for interpersonal relationships.
Mary Mahowald succinctly summarizes how a number of contemporary bioethicists have invoked various concepts of personhood in addressing issues about the beginning of life (25). She points out that Baruch Brody has linked personhood to brain activity, which Brody fixes at about six weeks gestation. Once brain activity is initiated, Brody claims the fetus has the same rights as any other person (26). Daniel Dennett, in contrast, proposes more rigorous requirements for personhood, i.e., "rationality, consciousness, self-consciousness, stance, reciprocity, and the capacity for verbal communication." Dennett claims that these conditions underlie all social contract theories of ethics (27). Michael Tooley asserts that an "entity cannot have a right to life unless it is capable of having an interest in its own existence," and this in turn requires "the concept of a continuing self, or subject of experiences and other mental states." Since fetuses and newborns lack this capacity, they do not have a right to life (28). Mary Anne Warren also argues that fetuses and newborns are not persons with full moral rights. She lists five criteria for personhood: consciousness, reasoning, self-motivated activity, the capacity to communicate, and the presence of self-concepts and self-awareness (29).
Robert Joyce and John Noonan, in contrast to the above authors, claim that the natural potential for knowing, willing, desiring, and relating to others in a self-reflective way is a sufficient condition for being a person (30). Because Joyce and Noonan hold that a human zygote has this potential, they argue that it is an actual person with a right to life. Norman Ford and Richard McCormick define personhood by a criterion of developmental individuation, which they fix at about the end of the second week after fertilization when a single body axis has begun to form and there is no longer the possibility of recombination or twinning. At that point, they claim, the fetus has a right to life (31).
Harry Frankfurt proposes second order volitions, i.e., the freedom of the will to endorse one's inclinations, as the defining characteristic of persons (32). Finally, Annette Baier argues that persons are constituted by their relationships to other persons. Emphasizing the acquisition and exercise of cultural skills, Baier believes that persons develop over time as a result of their interdependence on others (33).
In this brief survey of various positions on the nature of persons or when human beings become bearers of rights, it is easy to see how alternative accounts yield different ethical evaluations. The lack of consensus on the morality of abortion has resulted to a large extent from the lack of consensus about the sufficient conditions of personhood or what is sufficient to entitle an individual to the moral status of a bearer of rights. As noted above, bioethicists like Joyce and Noonan require much less for an entity to count as a person or acquire the status of a rights bearer than, say, Dennett, Warren, Frankfurt, and Baier.
This lack of consensus on the sufficient conditions of personhood, however, has no bearing on whether a consensus can be reached about when a person or human being has died, since the death of a person will be determined by the loss of some necessary condition of personhood. Moreover, as I have argued, there is a consensus in the Western tradition that the potential for consciousness is a minimal, necessary condition of personhood. Thus, there is a logical and historical asymmetry in how the concepts of humanity and personhood impact on our understanding about the beginning and end of life.
To Bioethics in India book contents
To Eubios Ethics Institute books
To Eubios Ethics Institute home page