The Evolution of Death and Dying Controversies

Author(s): Robert M. Veatch

Source: The Hastings Center Report, Vol. 39, No. 3 (May - Jun., 2009), pp. 16-19
Published by: The Hastings Center
Stable URL: http://www.jstor.org/stable/25548386
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Future behavior control researchmust examine the definitions

of health asmeticulously aswe once examined the definitions
of death. Changes in definitions?what is "good," "healthy,"
have mas
"normal," or for thatmatter "thewill ofGod"?all
or
to
move
than
behavior
surgery.
sivelygreater powers
drugs
There is nothing new in "bioethics" except the name. The
ethical dilemmas are old and familiar. In certain times, how
ever,differentareas offernew models for illuminating ancient
new bottles.We have lived in a time
problems?old wine in
when ithas been the biological sciences that have revived an
interest in moral philosophy. The behavior control argu
ments?the

specious

new

as well

as

the

relevant?have

offered

nature of autonomy, freedom, and coer

insights into the
the
relation between the rightsof the individual and
cion, and
the needs of society.And it should continue so.

The

of

Evolution

Death

and Dying

Controversies

The physician isnot the only one with the power of defin
ition. Fashion and religion in their differentways influence
behavior by defining in one case the chic, in the other the
one had to be coerced into smoking cigarettes. By
good. No
to the young and naive, the tobacco
selling "sophistication"
hucksters addicted generations of children to a life-threaten
ing

behavior.

Recently,

to our

horror, we

have

seen

the resur

gent power of an old and prescientific definer of "the good."

to define "Gods will," can
Religious leaders,with theirpower
we "choose" health over
equally manipulate behaviors. As
sickness,

we

as

certainly

would

choose

salvation

over

control,

we

come

BY ROBERT

M. VEATCH

eternal

that given our current state of knowledge, it is not the scalpel

and the electrode that need worry us, it is theword. It is not
our brainswe should be protecting, it isourminds. Those glib
con men who manipulate theminds of the innocents are the
most dangerous destroyers ofwill and autonomy. The menace
to watch out for is not Dr. Frankenstein but theWizard of

When the Institute of Society, Ethics and the Life

Sciences (now The Hastings Center) began its
death and dying work in 1970, the first taskwas
to forgo
to
disentangle the definition of death from decisions
lifesupport.We were still in an erawhen itwas often assumed
that ifone was alive, then health professionals should launch
a full-court press to preserve life.The members of the Insti
tute'sTask Force on Death and Dying went towork teasing

Oz.

these

damnation.
In the debates

over

behavior

have

to see

two

questions

apart.

The firstmajor public product contributed tomaking this

basic distinction. A symposium at theAmerican Association
for theAdvancement of Science (AAAS) inDecember 1970
included papers directed at clarifying the definition of death.
Authors included task force members Robert Morison and
Henry Beecher, who was also chairman of theAd Hoc Com
mittee of theHarvard Medical School that established the de
finition of brain death. In a debate between them and their
commentators (Leon Kass and me), the issueswere whether
death

was

a process

or a momentary

event

and whether

any

support remained for a cardiac definition of death. The

was published in Science.1 The clear re
process/event debate
sultwas the recognition thatwhile dying is a process (one that
is extremelyhard to differentiate from chronic illness), death
itselfis a momentary event, a bright linemarking the bound
ary between being amember of the human community of the
living and those formerly living.

Robert M. Veatch, "The Evolution of Death

Center Report 39, no. 3 (2009): 16-19.

16

HASTINGS CENTER REPORT

May-June 2009
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and Dying Controversies," Hastings

we
Early on,
recognized the crucial public, social, psycho
a
and
logical,
legal significance of categorical distinction be
tween lifeand death. This distinction must be clear to decide
whether

count

spouses

as widows

or assaults

as homicides,

for

example, orwhether life-insurancepolicies should pay off and

assassinated presidents be succeeded by theirvice presidents.
If one accepts what is called the "dead donor rule," being dead
is a necessary condition for legitimately procuring life-pro

longing organs.We also recognized that the cluster of issues

traditionally associated with death might be disaggregated so
that some of the conditions could be separated from the pro

nouncement

of death.

Under

special

pie, life insurancemight pay off

while one was stillalive, such as
in programs inwhich the ter
minally ill are allowed to collect
their insurance (at a discounted
rate) in order to pay medical
and other bills.One of the con
ditions thatThe Hastings Cen
ter research
disaggregated early
on was
forgoing life support.
With forty years of hind
sight, it is remarkable how sim

ple the definition-of-death de

bate

seemed

then. We

back

rec

ognized only two options at

that time: one died eitherwhen
circulatory function ceased ir
reversibly or when all brain

functions stopped irreversibly,

and most of us thought the
brain function option was the

more

rational,

modern

circumstances,

for exam

led to a consensus

Toward

Greater

was

Beecher

correct

obviously

someone

Complexity

retrospect, this simple two-option choice was already in

In jeopardy by the time of theAAAS meeting. Henry Beech
er's unpublished presentation contained a hidden
challenge.4
In defending the critical role of the brain, he
argued that "the
individual's personality, his conscious life,his uniqueness, his
capacity for remembering, judging, reasoning, acting, enjoy

these

that

functions

reside

to die.

the task forcewas working on these issues, a paper

published in The Lancet reported two cases of persons who
clearly had lost all the functionsBeecher enumerated, yetwere
not dead by whole-brain crite
ria since theywere breathing on
theirown and theirbrain stems
intact.6 This

remained

report
temporarily turned the brain
death debate into a three-choice
controversy.One could be de
clared dead by cardiac, whole
brain, or higher-brain criteria.
Members of the task force

were

aware

on
that this
early
a new
and
problem,7
soon
con
the entire
enough,
to unrav
scheme
ceptual
began
stan
el. Critics
that
showed

created

people has turnedintoa

prolongeddebate.

de

. . .when

While

over the
old-fashioned heart

of a whole-brain-based

and

in the brain. The challenge however, comes when we realize

that all of these reside in one particular portion of the brain,
the cerebrum (in fact, in only certain portions of the cere
brum). If irreversibleloss of these functions counts as death,
there is reallyno need for thewhole brain to be destroyed for

inwhich the
controversy
brainpeople would win out

finition of death. The position was endorsed by the entire

group (although some of themore thoughtful, provocative
members pressed hard about the potential dangers of aban
doning the cardiac definition).2 This effort led two group
members to propose a carefullycraftedwhole-brain definition
that eventually shaped thework of the President's Commis
sion for the Study of Ethical Problems inMedicine and Bio
medical and Behavioral Research.3

in the brain,

reside

would be a short-term

view.

in favor

so on,

Today,what we thought

Moreover, no one questioned the dead donor rule, although

many realized that a lotmore was at stake in the debate over
definition of death than just the procurement of organs. The
earlywork of the task force (eventually called the "research
group")

and

ing, worrying,

the brain no longer functions the individual isdead."5

dard,

criteria

accepted

for mea

suringwhole-brain death in fact

were
compatible with the pres
ence of certain brain functions
remaining
cretion

intact,
of

such

as the se

hormones.8

Thoughtful scholars challenged

the presumption that the brain was the sole organ responsible
for

"somatic

is, for

integration"9?that

the

orchestrating

body's varied activities to operate as part of a whole. Others

questioned the dead donor rule, suggesting thatunder certain
circumstances itmight be ethical to procure
life-prolonging
organs prior to death.10Those who were skeptical about the
moral and legal prohibition on intentional, active killing for
mercy (so-called positive euthanasia) tended to open thedoor
toward

organ

with

procurement

consent

patient's

that

would, in effect,kill the patient.11

Today, forty years after the launching of The Hastings
Center's death and dying research,what we thoughtwould be
a short-termcontroversy inwhich the brain
people would win
out over the old-fashioned, romantic, heart-based
people has
turned into a prolonged debate. We are furtherfrom agree
ment thanwhen we started. In fact, the debate is no
longer
between just two or three options. Even within the heart,
whole-brain,

and

higher-brain

camps,

there are countless

nu

anced positions. Some people want to

ignore nests of cells as
are
not
content
Some
with the two-pronged
insignificant.12
laws that permit death to be pronounced based on either car
diac

or brain

function.

May-June

new

controversy

2009 HASTINGS

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CENTER

has

emerged

REPORT

17

re

cently

over

cardiac

using

death

in cases

pronouncement

where a heart is to be transplanted, and where, therefore,the

loss of heart function is clearly not irreversible.13Innumerable
variations on the definition of death incorporate philosophi
cal and religious positions, many ofwhich are not obviously
wrong. For example, Japanese and Native American cultural
views resistboth brain- and heart-based definitions of death.
I have long defended the proposition that the choice of a de
finition of death, likemany other philosophical or theological
controversies,will not lend itself to a single, uniform policy
and thatpeople should be permitted to choose theirown po
sitions within

reason.14

Now

no

reasonable

person

can

accept

a literalwhole-brain definition
inwhich every last function of
the brain, but no bodily func

Contrary

to Die

second major issue on

death
and dying taken up
The
in the early years of The Hast
to
ings Center was supposed

have been the tough one?the

ethics of forgoing life support,
which in those days we called
to die." The Task
"allowing
Force started before the land
mark case ofKaren Quinlan in
the mid-1970s,

in which

expectations,

hope

of recovery.

Even

treatments

when

then, however,

they

legal

precedent

have

preferred

to

stop.

This possibility led the group to encourage members who

tackledmore psychological and cultural aspects of dying.15
The questions about forgoing life supportwere expanded
with the case of Karen Quinlan. As administrator of the

group, I worked with Paul Armstrong, the family's attorney,

to help develop the case. In its early stages, questions about
the definition of death and forgoing treatmentwere inter
twined, but we were able to quickly set aside questions about
the definition of death, since Karen clearlywas not deceased
by any plausible legal definition.
18

HASTINGS

CENTER

wide

REPORT May-June

some

that

controversies

rou

their

as

novel

the

accept

right of patients and

moral
when

law requires

most

and

them,

want

termi

during

illness, no

nal

to refuse

surrogates

them

the expected harms are

or

great

than

greater

the

benefits (what is commonly

called the "proportionality" cri
terion). The Terri Schiavo case
not be
caught us by surprise
cause it involved refusing nu
trition?such
ready

and

of

may

people
treatments

these

refusals

widely

able?but
portant

elements

tine nursing care. While our

pluralistic society recognizes

definitionofdeath.
es

and

dration,

to our

turned out to be more easily

resolved than those over the

the

would

there was

century,

twenty-first

support have sometimes

tablished the rightof competent patients to refuseblood and

other medical treatments.The Catholic Church's medical
or burdensome treat
morality in favor of forgoing useless
ments was well recognized. Before Quinlan, scholars were
a more subtle level of questioning. We asked not
pushing for
about
the difference between active killing and letting
only
about whether physicians had unique psychoso
but
also
die,
cial orientations that inclined them against stopping life sup
to
port, and about whether fear of the law pushed physicians
continue

into the

spread consensus that competent patients could refuse not

only high-tech medical interventions,but also more routine,
simple interventions: antibi

surrounding
forgoing of life

young woman's parents fought

to have her removed from a
ventilator and allowed to die
rather than be kept alive in a persistent vegetative statewith
no

As we moved

otics, blood products, medical

ly supplied nutrition and hy

tions outside the brain, counts

in defining death.

Allowing

The case moved to the front and center the issues of fam
ilymembers' and other surrogates' involvement in decisions
to forgo treatment.Through the 1970s, it became clear that
surrogates had the authority tomake treatment decisions as
as
not contravene thewishes expressed by the
they did
long
while
competent. This approach became standard
patient
in
of the President sCommission, which was
work
the
policy
led by Alex Capron, an important player in theHastings re
search in the 1970s.

over

disputes

who

seen

as

were

al

accept

because of its im

the proper

surrogate

should be, whether the patient was trulyvegetative,whether

the surrogatewas acting with good will, and whether the in

fluence

of enormous

amounts

tainted

of money

the decision

were corrupted by political

making. These issues, of course,
and religious disputes that delayed the apparently obvious
resolution of the conflict.
In

short,

contrary

to our

the

expectations,

controversies

surrounding forgoing of life-supporthave sometimes turned

out to be more easily resolved than those over the definition

of death. Like the debate about defining death, however,

are almost always
today's issues about forgoing life support
more complex and subtle than those of the 1970s. They in
volve physician-assisted suicide, active killing formercy, con
flicts among plausible surrogates, forgoing implanted devices
such as pacemakers thatwould require active intervention to
remove,
troversies
resolved

tensions

resource

involving
to a case, we

angle

treatments

over which

allocation.
can

assume

are

Unless

futile,
there

that standard

and

con

is an un
policies,

such as those recommended inThe Hastings Center's Guide

lines on the Termination of Life-Sustaining Treatment,16will
lead decision-makers through the thickets of themoral op

2009

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tions.A revised and updated version of these guidelines, cur

rentlybeing compiled, should provide furtherassistance with
these newer,

more

nuanced

issues.

References
1. R. Morison,
(1971):694-698;
Robert Morison,"

or Event?" Science
173, no. 3
on
"Death as an Event: A Commentary
Kass,
Science 173, no. 3 (1971): 698-702.
"Death?Process

L.R.

2. Task Force on Death

and Dying,
Institute of Society, Ethics and
in Criteria for the Determination
of
the Life Sciences,
"Refinements
Death: An Appraisal"Journal
Association 221,
of theAmerican Medical

Deciphering

Genetics

no. 1 (1972): 48-53.

3. A.M.

and L.R. Kass, "A Statutory Definition

of the Stan
Capron
for Determining
Human
Death: An Appraisal
and a Proposal,"
University of Pennsylvania Law Review 121 (1972): 87-118; Presidents
Commission
for the Study of Ethical Problems
inMedicine
and Bio
dards

medical

and Behavioral Research, Defining Death: Medical,

Issues in theDefinition
ofDeath
(Washington, D.C.:
ernment
Printing Office, 1981).

Ethical

Legal and
U.S. Gov

4. H.K.
of Death,
Some Opposing
Beecher, "The New Definition
for
Views,"
paper presented at the meeting of theAmerican Association
theAdvancement
of Science, December
1970.
5. Ibid., p. 4.
6. J.B. Brierley et al., "Neocortical

Lancet2, no. 7724 (1971): 560-65.

7. R.M.

Veatch,

Outmoded

Death

after Cardiac

"The Whole-Brain-Oriented

Philosophical

(1975): 13-30.

Formulation,"

Journal

Concept

Arrest,"

The

of Death:

An

of Thanatology

3, no.

8. A. Halevy
and B. Brody, "Brain Death:
Definitions,
Reconciling
and Tests," Annals of Internal Medicine
119, no. 6 (1993): 519
25; S.D. Alan, "Recovery from Brain Death: A Neurologists
Apologia,"

Criteria,

LinacreQuarterly64 (1997): 30-96.

BY THOMAS

The copsfinally arrested

Madame Marie for tellinfortunes
better than theydo.

?Bruce
Springsteen
"4th of July,Asbury Park (Sandy)," 1973

9. D.A.

"The Brain and Somatic

Shewmon,
Integration: Insights into
the Standard
Rationale
for Equating
Brain Death
with
Biological

Medicine and Philosophy

26 (2001): 457-78.
Death," Journalof
10. R.D.

Brain Death?"
Truog, "Is ItTime To Abandon
Hastings Cen
no. 1 (1997): 29-37.
ter
Report 27,
11. J. Kevorkian,
The Goodness of Planned
Prescription Medicide:
Death
(Buffalo, N.Y.: Prometheus Books;
1991).
12. J.L. Bernat, "A Defense
of theWhole-Brain
14-23.
Hastings Center Report 2%, no. 2 (1998):

Concept

of Death,"

13. M.M.
Boucek et al., "Pediatric Heart Transplantation
after Dec
laration of Cardiocirculatory
Death," New England Journal ofMedicine
359, no. 7 (2008): 709-714; R.M. Veatch, "Donating Hearts after Car
diac
the Irreversible," New
Medi
Death?Reversing
England Journal of
cine 359, no. 7 (2008): 669-71; R.
"The Dead
Troug and EG. Miller,
Donor Rule and
Med
Organ Transplantation," New England Journal of

icine359, no. 7 (2008): 674-75.

14. R.M. Veatch, Death,

and the Biological Revolution
(New
Dying,
Haven, Conn.: Yale University Press, 1976), 72-76; R.M. Veatch, "The
Conscience
Clause: How Much
in
Individual Choice
Defining Death
Can Our Society Tolerate?"
in The
Definition
ofDeath: Contemporary
Controversies, ed. S. J.Youngner, R.M. Arnold, and R. Schapiro
(Balti
more, Md.:
Johns Hopkins University Press, 1999), 137-60.
15. E. Kiibler-Ross,
and
"Dying: The Patients Reactions, Language,
for
paper presented at the meeting of theAmerican Association
Hopes,"
the Advancement
of Science, December
"The Sacral
1970; WE
May,
Power of Death
inContemporary
Culture," Social Research 39 (Autumn

Toward theNewly
1972): 463-88, at 484-85;W May, "Attitudes

no. 1 (1973): 3-13.

Hastings Center Studies 1,
16. The
in the Termination
Guidelines
Center,
Hastings
of Life-Sus
taining Treatment and the Care of theDying (BriarclifFManor, N.Y.: The

H. MURRAY

1971, when The Hastings Center organized a

on ethical issues in human
workshop
genetics with the
Fogarty International Center at theNational Institutes of
Health, the Human Genome Project was not even a fond

In

October

gleam in theworkshop participants' eyes. By that year, the

Center had formed a "Genetics Group" towork on a newly

established?and
remarkably prescient?"Genetic Counsel
ing and Engineering Program." Genetic counseling was still
in its early days. The creation of the first recombinant DNA
molecule, the foundational technology for genetic engineer
ing,would not be announced until the next year,while the
Asilomar conference, convened to deal with the potential
dangers of genetic tinkering,was four years in the future.But
many of the themes of theCenter's work on geneticswere al
ready in formation. In genetics, what has been needed time
and again is careful attention to the facts,
looking beyond
hype to get the story straight.The storyhas reliably turned
out to be more complicated than it seemed on first
inspec
tion.

Under the leadership of the lateMarc Lappe, theGenetics

Group chose to focus on genetic counseling and the uses of

Dead,"

Hastings

Center,

1987).

Thomas H. Murray,
"Deciphering Genetics," Hastings Center Report 39, no. 3
(2009): 19-22.

May-June 2009HASTINGS CENTER REPORT

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19