A matter of respect: a defense of the dead donor rule and of a "whole-brain" criterion for determination of death

J Med Philos. 2010 Jun;35(3):330-64. doi: 10.1093/jmp/jhq023. Epub 2010 May 13.


Many accounts of the historical development of neurological criteria for determination of death insufficiently distinguish between two strands of interpretation advanced by advocates of a "whole-brain" criterion. One strand focuses on the brain as the organ of integration. Another provides a far more complex and nuanced account, both of death and of a policy on the determination of death. Current criticisms of the whole-brain criterion are effective in refuting the first interpretation, but not the second, which is advanced in the 2008 President's Council report on the determination of death. In this essay, I seek to further develop this second strand of interpretation. I argue that policy on determination of death aligns moral, biological, and ontological death concepts. Morally, death marks the stage when respect is no longer owed. Biologically, death concerns integrated functioning of an organism as a whole. But the biological concepts are underdetermined. The moral concerns lead to selection of strong individuality concepts rather than weak ones. They also push criteria to the "far side" of the dying process. There is a countervailing consideration associated with optimizing the number of available organs, and this pushes to the "near side" of death. Policy is governed by a conviction that it is possible to align these moral and biological death concepts, but this conviction simply lays out an agenda. There is also a prescription-integral to the dead donor rule-that lexically prioritizes the deontic concerns and that seeks to balance the countervailing tendencies by using science-based refinements to make the line between life and death more precise. After showing how these concerns have been effectively aligned in the current policy, I present a modified variant of a "division" scenario and show how an "inverse decapitation problem" leads to a conclusive refutation of the nonbrain account of death.

MeSH terms

  • Bioethical Issues*
  • Brain / physiology
  • Brain Death / diagnosis
  • Brain Death / legislation & jurisprudence
  • Death*
  • Ethics, Medical
  • Humans
  • Personhood
  • Tissue Donors*
  • Tissue and Organ Harvesting* / ethics
  • Tissue and Organ Procurement
  • United States