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The Canadian Law Reform Commission’s definition of death

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In 1979 the Law Reform Commission of Canada dealing with the Protection of Life Project issued its first working paper: Working Paper 23: Criteria for the Determination of Death (Minister of Supply and Services, Canada, 1979. 70pp.) The Commission has now reviewed public response, made some minor alterations, and submitted its final report to the Canadian Parliament on the matter: Report 15: Criteria for the Determination of Death (Minister of Supply and Services, Canada. 1981. 35pp.) In this brief the B.C. Civil Liberties Association puts forth its view of the recommendations of the Commission.

The problem the report addresses is this: traditionally, there was a clear and crisp line dividing the living from the dead; the living were readily identifiable as those who were warm, responsive, animated, and carried on various biological functions, whereas the dead displayed none of these characteristics. One simply did not run across cases of persons who, for any sustained period of time, manifested some but not all of the characteristics associated with human life, and hence it did not matter much whether death was defined in terms of the absence of one trait or another. The absence of breathing was for a long time taken as definitive of death, until Harvey’s work on the circulation of blood, after which death came to be defined in terms of absence of heartbeat. But as normally heartbeat, breathing, and other life signs all ceased at roughly the same time, this was not a matter of great consequence. Things are no longer so simple. Previously such bodily functions as heartbeat, breathing, and brain activity, were present or absent together because they were interdependent, but modern medical technology has changed all that. Lungs can be kept going by respirators, and hearts which have ceased to beat can be stimulated to restart, and kept functioning even in the absence of the usual stimuli from the brain. Thus persons whose brains will never again sponsor consciousness may nevertheless have hearts and lungs whose activity is maintained artificially. The effect of this is to blur the hitherto clear line between the living and the dead: we can no longer always identify the exact moment of death, or even the dead, with confidence.

This has created problems. For certain important questions about the appropriateness of behaviour presuppose that we can determine whether a person is dead. For example, it is traditionally thought appropriate to do such things as routinely stop all medical treatment, mine an organ donor’s body for transplantable organs, use the body for certain experimental procedures, and proceed with an autopsy if, but only if, the person is dead. Thus, insofar as when one is dead is unclear, it will likewise be unclear when it is appropriate to initiate the above sorts of behaviour.

To rectify this situation, the Law Reform Commission has undertaken to provide a precise definition to death. The Commission recommends that the Parliament of Canada adopt the following amendment to the Interpretation Act, R.S.C. 1970, C. I-23:

Section 28A – Criteria of Death

For all purposes within the jurisdiction of the Parliament of Canada,

  1. a person is dead when an irreversible cessation of all that person’s brain functions has occurred;
  2. the irreversible cessation of brain functions can be determined by the prolonged absence of spontaneous circulatory and respiratory functions;
  3. when the determination of the prolonged absence of spontaneous circulatory and respiratory functions is made impossible by the use of artificial means of support, the irreversible cessation of brain functions can be determined by any means recognized by the ordinary standards of current medical practice (Report 15, p. 25)

This definition, which the Commission alternatively refers to as a “brain death” or “whole-brain death” definition of death, differs from the definition, long accepted by the Courts, of Black’s Law Dictionary—viz., that death is “the cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent there on, such as respiration, pulsation, etc. ” (1)—in that it takes only spontaneous heartbeat and respiration to be indicative of life. When those functions occur, but are artificially sustained, the brain death definition of death forces us to say that what we have is a corpse being ventilated, not life being maintained. And the definition differs from the so-called “cerebral death” definition of death in that whereas, according to the latter, a person is dead as soon as he or she is irreversibly comatose a state which occurs as soon as the neocortex is permanently non-functioning—brain death requires, in addition, that spontaneous heartbeat and respiration have also permanently ceased—a state which does not occur until the activity of the brain stem, as well as that of the neocortex, has permanently shut down.

In proposing the definition, the Commission is not breaking new medical or legal ground. A brain death definition of death has been endorsed by a number of medical associations, including the World Medical Association, the Canadian Medical Association, the American Medical Association, and the American Electroencephalographic Society. It has also passed into law in a number of places throughout the world: the majority of European countries (with the notable exception of Great Britain), Australia, (Alaska, California, Georgia, Idaho, Illinois, Iowa, Kansas, Maryland, Louisiana, Michigan, Montana, New Mexico, North Carolina, Oklahoma, Oregon, Tennessee, Virginia, and West Virginia), and the Province of Manitoba, have all in one way or another, recognized brain death as the criterion of the death of the person.

However, in spite of the popularity of the definition, and what might seem to be its judicious attempt to steer a middle course between unacceptable twin extremes, the Association does not think the definition ought to be adopted. We shall first offer some criticism of how the Commission arrives at the definition, and then turn to an evaluation of the definition itself.

The first criticism that shall be made is that the Commission does not provide sufficient arguments in favour of redefining death at all. To be sure, the report makes it plain that the present concept of death is indeterminate; that important legal, moral, and medical consequences flow from the determination of death; and that it is undesirable to be left in limbo on these matters (Working Paper 23, pp. 9-10, 18-21. All subsequent page references are to this ’Working Paper.) But it does not follow that we ought to make precise the definition of death. There remains the alternative of leaving the definition of death in its present indeterminate state, and going on to specify what can be appropriately done to whom when. Thus, for example, we could have rules such as: “No transplant proceedings can be initiated until all spontaneous and non-spontaneous respiration and heartbeat have irreversibly ceased”, “Life-support systems may be routinely terminated as soon as an individual is irreversibly comatose, even if spontaneous respiration and heartbeat still occur”, “Any person who intentionally causes another to lose his capacity to function as an integrated conscious being shall be punished by the most severe sanction available in this jurisdiction”, and so on. We do not want to insist that these particular rules ought to be adopted; our point is only that we can resolve any uncertainty in practical affairs without fiddling with the definition of death.

This may strike one as a rather exotic alternative, but we do not think it is. The temptation to solve the practical problems by making precise the definition of death surely rests on the assumption that it is possible to find some time at which most traditional death-behaviour becomes appropriate and which can be unobjectionably pegged as the moment of death. But, as we shall see, there is reason to doubt that such a time can be found. And if it cannot, then any adjustment in the definition of death will have to be accompanied by a disclaimer that certain behaviour becomes appropriate at that time, or only at that time. That will seriously reduce the utility of making precise the definition of death, and hence open up the above possibility as a real one. There is no clear advantage to redefining death and then going on to say that most behaviour, traditionally thought to be appropriate if and only if a person is dead, is now appropriate at a particular time before (or after) that event, over leaving the definition of death alone, and going on to specify when certain behaviour would be appropriate. Indeed, on the face of its the advantage seems to run the other way, we will return to this matter later.

The second criticism we want to make is that the Commission does not provide sufficient arguments for redefining death in the way it does. The Commission is not particularly clear on how it arrived at its definition of death, but the argument seems to be this. We can, in a fairly unproblematic way, state, “the contemporary and shared conception” of death: “Death is considered to be both the permanent and irreversible cessation of conscious and relational life of which the medical term is ’irreversible coma’.” (p.57; cp. 5) This, together with the scientific claim that one is in irreversible coma once brain death occurs, yields the Commission’s view that “a person is dead when an irreversible cessation of all that person’s brain functions has occurred” (p.58).

This argument, however, fails for two reasons. First, it is not true, or even generally acknowledged, that death occurs when there is “permanent and irreversible cessation of conscious and relational life.” Karen Ann Quinlan, for example, has permanently lost such a life, but no one wants to say she is dead. People distinguish, and rightly so, between one who is irreversibly comatose simpliciter, and one who is irreversibly comatose by reason of being dead. The general conception of death offered conflates this distinction, and hence we have good reason for rejecting it. Second, even if we were to accept that conception, it, together with the findings of contemporary science, will not yield the conclusion the Commission wants. We do not have to wait for brain death to know that a person is irreversibly comatose; we know that a person is in such a state once he has a permanently non-functioning neocortex, i.e., has suffered cerebral death. But if we conjoin this with the view that one who is irreversibly comatose is dead, we get a cerebral death definition of death, not a whole-brain death definition of death.

Having thus dealt with the Commission’s grounds for its proposed definition of death, we now turn to that definition itself. The Commission clearly regards death as an event which has great significance for behaviour. But it is not similarly clear on exactly what behaviour is linked with death, nor on what the exact nature of the linkage is, i.e., whether death is to be regarded as a necessary, or a sufficient, or a necessary and sufficient, condition for the initiation of the behaviour. However, it is, most natural to take the Commission as claiming that death is necessary and sufficient for signing the death-certificate, beginning the mourning ritual, giving last rites, initiating burial procedures, removing transplantable vital organs from organ donors, stopping medical treatment, starting proceedings to distribute an estate, and proceeding with a possible autopsy; and necessary, but not sufficient, for collecting life-insurance benefits and prosecuting a homicide (pp.8,11, 18-19).

If this is the behavioural significance the Commission attaches to death, then it is arguable that the definition of death it proposes is at once too conservative and too radical. If we treat the time of death as the earliest time one can withdraw (or even routinely withdraw) all life support systems, then the proposed pegging of the time of death seems overly conservative. It is plausible to suggest (as the Commission does elsewhere on page five) that the limit of the value of life is set by the possibility of having experiences; once an individual no longer can have experiences, his existence no longer has any value for him and hence there is no point in preserving or extending it. But since one can be irreversibly comatose without having suffered brain death, to hold up brain death as the earliest time life support systems can be withdrawn or routinely withdrawn is to mistime that event.

In another way, however, the definition may be claimed to be too radical. If we treat the time of death as the earliest time vital organs may be taken from donors for transplant purposes, an autopsy performed, burial procedures initiated, and the body used for teaching or experimental purposes, their it is arguable that the definition permits these activities too soon. There may be nothing inappropriate about switching off the respirator once brain death occurs, and then initiating these activities. But insofar as the person is to be declared dead even while on the respirator, as the definition in question has it, there is no need to shut it off; we can commence these activities while heartbeat and respiration, albeit artificially supported, still occur. That, one may claim, is inappropriate. Again, if an organism may be declared dead and yet have its vital function maintained by various devices, it may seem both tempting and permissible to use it as a self-replenishing; blood or skin bank, a reservoir of transplantable organs kept in the freshest possible condition, a plant for manufacturing biochemical compounds, and so on. And these may likewise be claimed to be inappropriate things to do.

Now maybe the Commission has the above implications and, contrary to the suggestions above, thinks they are acceptable implications. If so, however, we are surely owed some weighty moral arrangements. But the Commission not only does not provide any, it does not so much as acknowledge that the definition of death it proposes has some consequences which many will find startling. Perhaps, then, the Commission does not want to endorse such implications. But if not, just what implications for behaviour the determination of death has needs to be made clear. Otherwise we are exchanging a situation in which we know pretty well what is supposed to follow upon the determination of death, but do not know exactly when death occurs, for one in which we know exactly when death occurs, but do not know what follows from that. And there is no gain there. The view of the Association on this matter is that it is impossible to successfully argue that the implications for behaviour yielded by the whole brain definition are acceptable. We think that the only plausible choice is between the ordinary view expressed above, and a more radical view to be discussed below. And neither of these positions support a whole brain definition of death.

If one accepts as a natural reaction that the above definition is sound, then one will say that the whole brain definition of death must be accompanied by a denial that certain traditional death behaviour becomes appropriate at the time, or only at the time, of death. But if one does not say this, and claims that we can routinely withdraw all life support systems before a person is dead, and cannot use a body as a reservoir of transplantable organs or for information seeking or teaching purposes until after a person is dead, then the only significant effect of updating death is that it allows one to offer the “death justification” for terminating treatment earlier than we currently can. This does not mean that we can terminate treatment any earlier, for whether or not we update death, we can and should agree that all health care services can be routinely terminated (at least) as soon as whole brain death has occurred. It only means that we can offer a different justification—the death justification for doing so. And the possibility of being able to give that justification at that time comes at the cost of having to deny that certain behaviour, traditionally thought to become appropriate at the time of death, does become appropriate at that time. The question now arises as to whether there is sufficient utility in this to warrant updating death. We do not think there is.

There are only two advantages that can be alleged for updating the death justification. First, one may claim that it allows us to withdraw all health care services from patients without, at the same time, having to deny the view that doctors ought to do all they can for their patients until they are dead. Second, one may claim that it is easier on grieving relatives and friends to hear that treatment was discontinued because their loved one was dead, rather than because he was in a state deemed not worth preserving.

Both of these purported advantages, however, are highly contentious and require considerable defense. It does not take much to show that this is so in the case of the first. The only plausible reason one could have for wanting to preserve that dogma is to resist euthanasia. But insofar as we update death, we let through the hack door what we exclude from the front, and why that should be thought an advantage needs to be explained. The most plausible rationale consists in appealing to the second “advantage” above, which will be discussed in a moment. But there is a something else which needs explaining as well: why euthanasia should be resisted at all. If one only wants to resist involuntary euthanasia, then, insofar as the definition of death falls short of cerebral death, one needs to explain why exactly it would be wrong to terminate the lives of those who like Karen Ann Quinlan are irreversibly comatose and also why it Mould be wrong to bring about the death of those who are incapable of requesting it, but are in such a bad way that they can only look forward to a life of pain interrupted by one medical crisis after another. And if one, in addition, wants to oppose voluntary euthanasia, he or she needs to explain why an individual in extreme and permanently unrelievable pain should not be entitled to receive death on request (2).

Not only is it problematical that there is any advantage in preserving the doctrine that doctors ought to give their patients optimal care until the end, that doctrine cannot, in any case, be maintained by a proponent of a whole brain definition of death who makes the above judgements of when certain behaviour is appropriate. For on that account, it is appropriate to withdraw all health care services at the time of cerebral death; so the most that could be claimed in this regard is that updating the death justification reduces the number of cases in which that doctrine is infringed.

Thus the utility of updating the death justification in the way in question must lie, if anywhere, in the second alleged advantage. But that too rests on a dubious doctrine. Judgements of death seem to be cold, hard, scientific facts. That, no doubt, is why they are easier to accept than their alternative—no one is making fallible value judgements about the worth of lives. But it is not a biological fact that one who has suffered whole brain death is dead. One can say that it is a biological fact that if such a person is not on a respirator—if blood is not circulating, food metabolizing, wastes being eliminated, etc. then that person is dead. But if he is on a respirator and these processes are occurring—albeit artificially supported then, while one nay want to say the person is dead, one cannot claim this to be a biological fact. Biology, and science in general, is quiet on the question of whether vital functions must occur naturally if an organism is to be counted as alive. The only plausible rationale for such a judgement, it seems to us, is that since it is inappropriate to exhibit towards this person any of the behaviour traditionally associated with living human beings, and is appropriate to exhibit towards him or her behaviour associated with dead human beings, we can fittingly classify the person as dead. But if this is the basis, then the judgement that a person who has suffered whole brain death is dead encapsulates certain value judgements. The “advantage” in question can now be seen to come from passing off a value-laden judgement as a value-free one. And to defend that, we need to defend a version of medical paternalism; specifically, we need to defend the view that misrepresentation is sometimes justified on the ground that it reduces suffering. We have yet to see any clearcut defense of this position, and wonder if any can be provided (3). That defense, however, is something which must be produced before the whole brain definition can be accepted by anyone who makes certain judgements about when traditional death behaviour becomes appropriate. For until it is, we are still in need of a demonstration that there is any legitimate gain to be made by adopting that definition.

But one may not accept the common judgements on which the above critique is based. One may claim that it is only misplaced aesthetic sensibilities that cause one to say that we must wait for heart and lung death before we can begin transplant proceedings, use a body for certain information seeking purposes, and so forth. After all, so the argument might run, there is no more reason to wait until all artificially supported respiration and cardiac activity has stopped than there is to wait until all cellular activity has stopped. There is a good deal to be said for this view, but one of the things that cannot be said is that it gives any support to a whole brain definition of death. If one is prepared to say that we can initiate the above sorts of behaviour on a person who is irreversibly comatose but has artificially supported respiration and heartbeat, it is going to be difficult to explain why such behaviour would be inappropriate in cases in which the person is irreversibly comatose and displays spontaneous respiration and heartbeat. It is hard to see what moral relevance can be said for supporting action in the former case that will not also support it in the latter. And if we can get over our squeamishness in the case of the one, we should be able to get over it in the case of the other. But if one cannot argue that there is a relevant difference between spontaneous and artificially supported respiration and heartbeat, then any behaviour deemed appropriate at the time of whole brain death will also be appropriate at the time of cerebral death. Thus we are, once again, left with the conclusion that no significant death behaviour is uniquely correlated with the time of whole brain death; and with that, the limitations of having to accompany the whole brain definition with the denial that certain traditional implication for behaviour hold. And since there is nothing new that can be provided by way of compensating advantages, our judgement on that definition must be as before.

For the above reasons, we reject a whole brain definition of death. But we do not want to do that because we think there is some other way of making precise the definition that ought to be adopted; rather, our view is that death should not be redefined at all. To give some substance to this view, we will end with some remarks on the problem of defining death.

When we say that a person is dead, this implies two things: first, that it is now appropriate to initiate certain behaviour, and; second, that the person is now in a certain physiological state. It is not easy to say exactly what behaviour is wedded to judgements of death, nor exactly what the physiological state referred to is. But serious distortion would be done the concept of death if it were defined so that no traditional death behaviour became appropriate when it occurred, or if it were made to refer to certain physiological states (e.g., only to those in which cellular death had occurred, or to those in which the organism still displayed spontaneous heartbeat and respiration). The problem of redefining death is that of trying to find a precise point that will enable us to keep these implications without at the same time incurring overwhelming limitations. We suggest that this cannot be done.

If we define death to coincide with the time of cerebral death, we have a point at which, depending on certain evaluations we make, coincides with some or all traditional death behaviour. But even if it turned out that all death behaviour coalesces at the time of cerebral death, it does not follow that we ought to adopt a cerebral death definition of death. For such a definition has the disadvantage of being off the scale of physiological states encompassed by the ordinary concept of death, and thus we would be faced with a conceptual crisis: the behavioural half of the concept of death would incline us to that definition, whereas the half which refers to the state of the organism would incline us against it. On the principle that the burden of justification lies on the proponents of change, it is up to one who wishes to advocate the cerebral death definition in this situation to show the benefit of adopting it. No support, however, can be drawn from ordinary language, for it is not a part of the ordinary concept of death that the behavioural component is dominant. Nor do pragmatic considerations help. For here we seem thrown back on appealing to the importance of holding the line on euthanasia—only now it is a different line one must want to hold, one that makes substantial concessions to proponents of involuntary euthanasia—and of easing burdens on others. And, as we found, both these appeals are suspect. So even in circumstances maximally favourable to a cerebral death definition, we do not think it ought to be adopted. On the other hand, it will not be helpful to move to the other end of the scale and select a heart lung definition of death. Depending on certain evaluations, that time will coincide with more or less death behaviour; but even supposing it to be more, that definition gives rise to an odd situation. Since people in that state are already acknowledged to be dead, the effect of such a definition would be to declare those in what is currently a twilight zone between life and death alive. One may claim that this has a salutary effect in underscoring the fact that we cannot do certain things to persons in such states. However, any advantage one may see there is offset by another consideration. No one wants to say that the lives of such individuals ought to be preserved indefinitely, and so this definition of death must be accompanied by an euthanasia policy to allow for that. But it must now appear somewhat perverse to declare people alive in one breath, and then, in the next, proceed to say that their lives can be routinely terminated. One may reasonably think that any advantage of so defining death could be secured in simpler ways. And, finally, to select a point on the scale between these extremes, as do proponents of the whole brain definition, is, as we have argued~ above, to select a point at which it is inappropriate to initiate any traditional death behaviour.

It thus appears that any way of making precise the definition of death we select will be attended with certain serious limitations; the only question being whether any will also have compensating utilities. Our Association does not think any will; certainly one cannot quickly point to such undisputed advantages. In the light of this, our suggestion is that we should first settle the question of what behaviour becomes appropriate when. That is a question, which in any case, has to be settled independently of the question of when a person is dead. But once we have settled that question, there is no need to go on to redefine death. For while we may not know whether a person is dead, we will know, as well as can any redefinist, how it is appropriate to act. Knowing the latter, however, makes it unnecessary to know the former, and by declining to decide the former, we thereby avoid the disutilities discussed above.

Footnotes

1. B1ack’s Law Dictionary (Revised 4th edition, 1968), p. 488

2. Objections to the practice of euthanasia are, in our view, convincingly dealt with by A. Flew, “The Principle of Euthanasia, in A. B. Downing, ed., Euthanasia and the Right to Die (Los Angeles, 1969), pp. 30-48, G. Williams, “’Mercy-Killing’ Legislation–A Rejoinder, Minnesota Law Review 43, No. 1 (1958), pp. 1-12, and J. Rachels, “Euthanasia,” in T. Regan, ed., Matters of Life and Death (New York, 1980), pp. 28-66.

3. A full-scale refutation of medical paternalism lies outside the scope of this paper, but we think the essential weaknesses of that position have been ably exposed by T. L. Beauchamp, “Paternalism and Bio-Behavioural Control,” in Beauchamp and Waiters, Contemporary Issues in Bio-ethics, pp. 522-529, and A. Buchanan, “Medical Paternalism,” in Philosophy and Public Affairs No. 4 (summer 1978), pp.370-390.