by Thaddeus M. Pope, J.D., Ph.D.

The August 2014 issue of the American Journal of Bioethics includes nearly 20 articles on the status of death determined by neurological criteria (DDNC or “brain death”). Not coincidentally, this summer, several other leading bioethics journals are also covering “brain death.” (See recent and forthcoming articles in the Cambridge Quarterly of Healthcare Ethics, the Hastings Center Report, and the Journal of Medical Ethics.) I have myself contributed to a multi-article examination of the topic in the imminently forthcoming Journal of Clinical Ethics 25(3).

I am pleased to see all this attention focused on “brain death.” It validates a decision I just made. I have just returned from a fantastic conference hosted by the Queensland University of Technology in Brisbane: “International Conference on End of Life: Law, Ethics, Policy, and Practice.” We had over 300 participants from more than 20 countries. In one plenary panel session, five law professors from five different nations identified “comparative flash points in end of life law, ethics and policy.” On behalf of the United States, I identified “brain death” as the “flash point” of the year.

Growing Uncertainty over Brain Death
Contrast brain death with medical futility. As I have written and presented many times, there is legal uncertainty whether clinicians can stop treatment without consent. For years, many have contrasted this uncertainty with the bright line situation of brain death. After all, for three decades, this has been settled. Total brain failure has been a diagnosis on which death can be pronounced and physiological support stopped.

But recent high profile court cases have created some uncertainty. Typically, these are cases in which: (1) the patient is a child; (2) clinicians have determined DDNC; but (3) the family objects to stopping physiological support. U.S. clinicians are increasingly unsure what to do. Hospitals are struggling to handle these disputes.

Legal Stability, but Conceptual Cracks
For 30 years DDNC has been legally established as death in all U.S. jurisdictions and in most developed countries on Earth. It is supported by a “durable worldwide consensus.” So, it was a surprise and shock that I found myself selecting it as one of this year’s “flash points.”

But maybe it should not have been so unexpected. Many use the word “reignited” to describe the recent growth in attention. After all, DDNC has never been free of controversy and criticism. While well settled, it remains “persistently unresolved.” Many find DDNC seriously problematic. The bodies of people determined dead by neurological criteria still do many of the things that living organisms do. For example, they can heal wounds, fight infections, mount a stress response to surgical incisions, and even gestate a fetus.

Upcoming Legal Changes
These arguments have been acknowledged, for example by the President’s Council on Bioethics. But they have not been deemed weighty enough to change the status quo. DDNC is too ingrained to abandon.

But three smaller legal changes may be coming. First, we may see more duties to accommodate religious or moral objections. Only California, New Jersey, and New York require hospitals to continue physiological support when families object. But the call for accommodation grows louder.

Second, we may see a codified national standard. Death by neurological criteria is legally defined as cessation of “all functions of the entire brain, including the brain stem. But how exactly is this measured?

Some states specify the protocols and methods. But they differ on: (1) the number of physicians to declare DDNC, (2) the qualifications of those physicians, (3) the types of tests performed, and (4) how those tests are administered. A national standard would impose much needed uniformity

Third, U.S. clinicians are very, very risk averse. So, while it is technically legally unnecessary, we may see more “safe harbor” legal immunity. We may see more statutes explicitly confirming that once a patient is dead, physiological support may be stopped.