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February 7, 2023

The Uncertain Future of the Determination of Brain Death

Author Affiliations
  • 1Center for Bioethics, Harvard Medical School, Boston, Massachusetts
  • 2Department of Anesthesiology, Critical Care, and Pain Medicine, Boston Children’s Hospital, Boston, Massachusetts
JAMA. Published online February 7, 2023. doi:10.1001/jama.2023.1472

In 1980, the US Uniform Law Commission (ULC) established the Uniform Determination of Death Act (UDDA), which was subsequently adopted (with some modifications) by all 50 states.1 The law states that death is defined as either (1) the irreversible cessation of circulatory and respiratory functions or (2) the irreversible cessation of all functions of the entire brain, including the brainstem. Although the loss of cardiorespiratory function has always been recognized as death, the determination of death by neurologic criteria was seen by some as creating a new way of defining death, one based on the loss of brain functioning rather than the loss of biological functioning.

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Future Determination of Death by Neurological Criteria
Calixto Machado, MF, Ph.D., FAAN | Institute of Neurology and Neurosurgegery, Havana, Cuba
Dr Truog mentions persistence of hypothalamic functions in some brain-dead patients (1). The inferior hypophyseal arteries branch off the extradural segments of the internal carotids are protected from augmented intracranial pressure. Pathologic studies have demonstrated that the hypothalamus-pituitary region has mild or non-ischemic lesions in brain-dead cases. It has been argued that hypothalamic functions are more significant to the functioning of the "organism as a whole" than any brainstem reflexes. Including tests for assessing hypothalamic function in suspected braindead patients would eliminate a confounding factor in BD diagnosis (2).

The World Brain Death Project recommended that neurologic
criteria for death be defined as "the complete and permanent loss of brain function as defined by an unresponsive coma with loss of capacity for consciousness, brainstem reflexes, and the ability to breathe independently" (1, 2). The term "capacity for consciousness" was used by Pallis (3). This author emphasized that the ascending reticular formation gives rise to a generalized activation of the cortex, producing the necessary arousal (capacity for consciousness). However, two physiological components control conscious behavior: arousal and awareness. Hence, I proposed reformulating this phrase: "the complete and permanent loss of brain function as defined by an unresponsive coma with loss of both components of consciousness - arousal and awareness - and the ability to breathe independently" (2).

Finally, Dr Truog argues that the experience provided by the State of New Jersey, which gives the legal way for patients' relatives or proxies to reject the determination of death by neurologic criteria, will reduce the menace of future lawsuits. This should be discussed independently in different countries and states.

References

1. Truog RD. The Uncertain Future of the Determination of Brain Death. JAMA;Published online February 07, 2023. doi:10.1001/jama.2023.1472

2. Machado C. The Uniform Determination of Death Act Should be Revised. Neurocritical Care 2022;i: doi:10.1007/s12028-022-01648-3.

3. Pallis C. Defining death. Br Med J (Clin Res Ed). 1985;291:666–7.

CONFLICT OF INTEREST: None Reported
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An Amendment to Proposal 2
Margie Shaw, JD, PhD | University of Rochester School of Medicine and Dentistry and Strong Memorial Hospital
Dr. Troug (1) considers the US Uniform Law Commission (ULC) review of the Uniform Determination of Death Act (UDDA) without reference to the genesis of the legal definition of death by neurologic criteria, A Definition of Irreversible Coma: Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death (Ad Hoc Committee) (2). The Ad Hoc Committee sought to provide a medical definition of death that would lead to what the members considered better law and policy (2). The Ad Hoc Committee proposal was motivated by advances in transplant surgery and the need to create law and policy that distinguished the death of transplantable organs from the death of the person whose body housed those organs. An additional motivation was the desire to render appropriate care when family or physicians perceived the patient to be permanently unconscious, a state they considered “for all practical purposes dead” (2). The President’s Commission stated “the standards by which death is to be recognized should be arrived at publicly” and physicians should “continue to develop criteria and tests and to apply them in reaching individual diagnoses” (3). In agreement with the President’s Commission, we have argued elsewhere that, in a democracy, law and policy ought to accommodate pluralism and suggested another solution for the ULC (4).

The ULC could amend the UDDA to align with existing clinical testing guidelines and allow family to object to the determination of death by neurologic criteria on religious or philosophical grounds. This amendment to proposal 2 reconciles medical practice and the law, which may improve trust in the medical profession, and addresses the reported concerns of some commissioners by providing family members the ability to promote the values and beliefs of patients who do not believe that death of the brain equates to death of the person.

References

1. Truog RD. The Uncertain Future of the Determination of Brain Death. JAMA;Published online February 07, 2023. doi:10.1001/jama.2023.1472
2. A Definition of Irreversible Coma: Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death. Journal of the American Medical Association 1968; 205(6):337–340.
3. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Defining Death: A Report on the Medical, Legal, and Ethical Issues in the Determination of Death. US Government Printing Office; 1981.
4. Shaw MH, Nabaozny M, Kaufman D. (2023). "Almagest Again? An Epistemological Critique of Nielsen Busch and Mjaaland." The American Journal of Bioethics 23(2): 33-35.

CONFLICT OF INTEREST: None Reported
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