When Death Is Not Death: Stumbling Over the Parameters of “Brain Dead”

Geese at Ketring Lake

Geese at Ketring Lake

I came across this very interesting article in the New York Times about two recent cases of young persons and death.  This is not any old death, this is legally recognized “official” brain death.  Only problem is, the definition of brain dead is a bit tricky.  In Colorado, we have advance directives that distinguish between persistent vegetative state and terminal condition.  As the NYT article points out, the Supreme Court cases which make the advance directive, a/k/a living will so popularized, were all cases involving persons (women) with the diagnosis known as persistent vegetative state, as distinguished from “brain dead.”   Colorado has recognized brain death from at least 1985 on, but one of the challenges with this definition is that it attempts to draw an arbitrary line between the dying process and death.  Where is the end of the line?

The Uniform Law Commissioners created the Uniform Brain Death Act in 1978.  Brain death became much more relevant as a result of organ transplantation and as neuroscience and its imaging technology has become more advanced, there are many more nuances known about the distinctions between persistent vegetative state and when someone has experienced brain death.  Setting aside the medical distinctions, the law does distinguish between brain death and persistent vegetative state.  Here is an article about the legal terminology and some of the techniques used by medical professionals to make such a determination.   Here, I think of the beautiful film The Diving Bell and the Butterfly, about the French writer with “locked in” syndrome as a result of stroke.  There have been several articles in Scientific American on this topic of what is “conscious awareness” and a finding cited in this article that patients who were otherwise in a vegetative state were found to be minimally conscious and capable of learning.   So much for that “bright line” between vegetative state and cognitive awareness.

Interesting and more controversial is this topic of the NY Times article, in the context of how these determinations play out with a teenage girl and a young mother, the persons declared “brain dead” by doctors in California and Texas, respectively.  Both these young women are on ventilators, and their hearts continue to beat.  The NYT article observes: “[t]he two cases are poignant because of a biological quirk of the body: the patients’ hearts continue to beat.”  When I read this observation, I knew that the authors were folks who view the heart as a pump, a pump for the benefit of the brain.  It occurs to me that this may not be a biological quirk as much as a mystery.  Perhaps we don’t know nearly as much about how the body works as we pretend to in our high tech and information saturated era.

So, I wonder – what is running their bodies if their brains are dead?  I disagree with the NY Times journalists that it is “a quirk.”  This is a most basic question yet it challenges our entire brain-centric reductionist view of what life is (rather, how it is measured) and how it is readily distinguishable from death.  My question is simple – how is it that a brain dead person can still live – doesn’t science have a bit of explaining to do here?  No, evidently not if one takes the reductionist view.  The brain is an organ of the body, but it is not on its own “the intellect” or “consciousness” (unless you are a tightly-bound reductionist, and they are represented among neuroscientists).  Since when does only the brain count in making a determination of death?  If the heart is not dependent on the brain, then why should the brain death determination override the determination of death?

Perhaps beyond the difficulties with reconciling our imposed definitions on life and death, or at least attempting to do so in order for them to be consistent with what we think we “know,” there is something that cannot be measured quantitatively but is rather a quality of being.  What if Black Elk, the blind Lakota sage, was able to see with the eye of his heart?  What if there are other ways of looking at the heart that we have not yet discovered?  I’m sure this won’t be the last time I ask this question.

Finally, one last observation.  In this country where provision of medical care is part of our free market economy, does this have bearing on a patient’s quality of life or right to continued care?  Here is a recent law review article about the tort of “wrongful prolongation of life,” which are the only lawsuits of which I am aware involving failure to follow the stated wishes in an advance medical directive.

If all of these questions are too much, I suggest some beautiful artwork on a similar theme.  It is work by Mihoko Ogaki called Light After Death and you can take a look at it here. Thanks to Tomasz for sharing it on Google+!

©Barbara Cashman  2014   www.DenverElderLaw.org


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