In 1968, a prominent American medical journal published a short article with a bold aim: “…to define irreversible coma as a new criterion for death.” What followed was not just a technical treatise, but a radical rethinking of what it means to die. The authors outlined how a detailed neurological examination could confirm irreversible loss of total brain function—what they called ‘brain death’. Their further claim was that death of the brain could mean legal death of the person—regardless of whether their heart still beats.
The authors’ aims were quickly realised. Today, in addition to death being legally defined as irreversible cessation of circulation of blood (in practice, the heart permanently stopping), most jurisdictions include specific criteria for death as defined by irreversible loss of brain function.
Brain death has garnered much controversy. The Australian philosopher Peter Singer has described it as, “…a concept so desirable in its consequences that it is unthinkable to give up, and so shaky on its foundations that it can scarcely be supported.” But while we have been concentrating on this new concept of death, have we missed that the ancient concept of death has become shaky on its foundations? I shall claim that the circulatory determination of death is often misunderstood as a biological fact, when it is actually a legal fiction.
The roots of this misunderstanding are historical. Unlike brain death, circulatory death, being an ancient concept, has not challenged our intuitions so readily. However, an emerging practice around deceased organ donation, thoraco-abdominal normothermic regional perfusion or TA-NRP, has focussed attention anew on those intuitions. TA-NRP uses modern technology to maintain the quality of organs for transplant after a circulatory determination of death. I shall explain how this practice exposes circulatory death as a legal fiction, and simultaneously pushes the boundaries of the law. (Note, while TA-NRP is carried out in many countries, most notably the US, it is not currently carried out in Australia.) I will begin, then, with a discussion regarding the nature of legal fictions, and an explanation as to why the circulatory determination of death is an example of a legal fiction.
Legal fictions are widespread and necessary. They are sometimes used to delineate bright lines within continuous states, for example in deeming that a child becomes an adult on their eighteenth birthday, and on that day takes on the legal rights and responsibilities of adulthood. Usually, these legal fictions are clearly recognised as such, and their limitations acknowledged. For example, the limitations of categorising an adult as a person over the age of eighteen are apparent when one considers cases of a psychologically mature person under eighteen with capacity to consent to medical procedures. In legal definitions of death, I shall claim the limitations are not always recognised.
Why is the circulatory determination of death a legal fiction? Prior to the mid-twentieth century, circulatory arrest, regardless of cause, always resulted in rapid whole-body cellular death, as tissues were deprived of oxygen. Nowadays a non-pumping heart can sometimes be restarted with electrical defibrillation. And in some early experiments in cardiac surgery in the 1950s, operations took place in a hyperbaric oxygen chamber—hearts were purposely stopped, and in the enhanced atmosphere of oxygen, prolonged time for surgery was possible despite arrested circulation. It became necessary then to add the word ‘irreversible’ or ‘permanent’ to the circulatory criteria for death. Due to advances in technology, whether stoppage of the heart leads rapidly to whole-body cellular death can now depend on others’ actions. A patient who has refused cardiopulmonary resuscitation can be declared dead immediately upon the heart stopping, even though it could be restarted with defibrillation. Conversely, a patient in the hyperbaric chamber in the 1950s whose blood circulation was arrested for some tens of minutes was not declared dead because the intention was to restart the heart. Contrary to popular belief, it is not then a biological fact that the patient is dead at the point of circulatory arrest, but a normative one. The popular belief persists, I suggest, because of historical and contemporary familiarity—cessation of the circulation of the blood is still the criterion fulfilled for death determination in almost all cases.
Determining death is a crucial step in deceased organ donation. A second article in the same edition of the journal that presented the concept of ‘brain death’, articulated the ethical principle that became known as the ‘Dead Donor Rule’. The rule states that vital organs must only be retrieved from patients already declared dead. It seeks to protect patients from harm, and surgeons from accusations of killing. With death of the person now able to be defined by death of the brain, from the tragedy of devastating brain injury can come good — surgeons can retrieve organs in good condition for transplant, those organs having been supported by complex technology and pharmacology within the body of the deceased.
Nonetheless, organs can occasionally be retrieved in good condition for transplant after a circulatory determination of death, despite the failing circulation depriving organs of oxygen. Such circumstances occur where there is unsurvivable pathology, the body is artificially supported, but the strict criteria for brain death are not met.
In such circumstances, aside from considerations of organ donation, withdrawal of life support is usual. Where organ donation is considered (and appropriate consent for organ donation given by family), that withdrawal of life support occurs in or near an operating theatre. When the heart has stopped for five minutes, the patient is declared dead and surgery to retrieve viable organs begins.
With the practice of TA-NRP, once the person is declared dead after five minutes of absent blood circulation, the body is placed on an extracorporeal membrane oxygenation circuit—essentially an artificial combined heart and lung. The body is re-perfused with oxygenated blood, and organ deterioration reversed. Organs, including the heart, can be transplanted with a greater chance of successful function in their new host.
But, it seems that because of the practice of re-perfusing the body with oxygenated blood, the diagnosis of death may now be unfitting. In other words, if death is defined here as irreversibly absent circulation of the blood, then once the body’s circulatory processes are artificially restored for organ removal, it no longer seems appropriate to categorise the person in question as dead. To complicate matters further, the surgeon clamps the arteries that supply the brain. This is to prevent re-perfusion, which could potentially restore brain ‘life’—life which was theoretically extinguished during the five minutes of absent circulation. Not only is the determination of death questionable, but it seems to be an open question as to whether the surgeon committed an act of killing.
Note, I do not believe the organ donor is harmed. If the heart of a person has stopped for five minutes, and the pathology was truly unsurvivable, then their outcome is unchanged by this dance.
Why then is this dance performed? I suggest it is because the legal fiction of circulatory determination of death is being used in an inappropriate context—to claim compliance with the Dead Donor Rule when brain death has not been declared.
Before advances in life support, the fictional status in law of the circulatory determination of death was rarely evident. The Dead Donor Rule arose early in the era of those medical advances. Today, the Dead Donor Rule’s simple formulation and the unacknowledged fictional status in law of determinations of death, has resulted in questionable practices around deceased organ donation. Whilst I do not believe any donor is currently harmed by these practices, it is time to closely examine the Dead Donor Rule to ensure the great good of deceased organ transplantation continues in as ethical a manner as possible.