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What will happen as people realize that brain death is not death?

Originally published on LifeSite News on April 16, 2024. Read the original article here.

Written by: Heidi Klessig MD

In 1968, without any tests, studies, or evidence, doctors began declaring certain comatose people “brain dead”. This diagnosis has always been controversial, as from its inception the concept of brain death has lacked a clear basis in fact. In 2023, “Because of the lack of high-quality evidence on the subject […],” the American Academy of Neurology (AAN) actually used a majority vote, not the scientific method, in determining their new brain death diagnosis guideline.


The world-renowned neurologist and one-time supporter of brain death as death, Dr. D. Alan Shewmon, was not invited to cast his vote. He now opposes the brain death dogma on scientific grounds, and recently published a paper addressing the fact that the new AAN guideline was written without any debate over the fundamental concept underlying brain death:


We clinicians are generally not particularly knowledgeable about philosophy. We are generally content to check off items in a diagnostic algorithm promulgated by a consensus committee and move on to the next patient. Whether human life is best understood in terms of thermodynamics and biological emergence, or in terms of a Cartesian mind, or in terms of vital work—that is a question on which neurologists have no monopoly of expertise.


After Jahi McMath survived her brain death diagnosis and started to recover brain function, more people began questioning brain death as death. In fact, brain death has been described as a legal fiction. Historically, this diagnosis has been a way of removing civil rights from vulnerable, brain-injured people, allowing the removal of their valuable, viable organs. Doctors Joseph Verheijde, Mohamed Rady, and Joan McGregor describe it this way: 


The scientific uncertainty of defining and determining states of impaired consciousness including brain death have been neither disclosed to the general public nor broadly debated by the medical community or by legal and religious scholars. Heart-beating or non-heart-beating organ procurement from patients with impaired consciousness is de facto a concealed practice of physician-assisted death, and therefore, violates both criminal law and the central tenet of medicine not to do harm.


What will be the outcome as people’s awareness of the brain death fallacy increases? The first possibility is that draconian laws will be passed, forcing people to accept the AAN’s dictates. Recently, the AAN petitioned the Uniform Law Commission (ULC) to change American brain death laws so that they would match the AAN brain death guideline. After over two years of meetings and debate, the ULC could not obtain consensus and tabled its work on revising the Uniform Determination of Death Act (UDDA) last year. If this push is resumed, one possibility is that death will be legally defined to be whatever the AAN says it is.


This is already the case in Nevada. After the Nevada Supreme Court’s 2015 unanimous decision that the AAN brain death guideline did not comply with the law under the UDDA, the Nevada legislature simply changed Nevada’s death laws. Now, the AAN, a private medical organization, and not Nevada citizens, determines who is dead in Nevada. Following this statute, insurance companies may not pay for the care of people with a brain death diagnosis unless they consent to organ donation. If this system is adopted nationwide, people would be forced by the law, the medical system, and the fear of bankruptcy into accepting a brain death diagnosis, regardless of their conscience or convictions.


A second possibility is that the public will wake up to the fact that doctors are using a brain death guideline that does not comply with the law under the UDDA. The UDDA mandates that there be “irreversible cessation of all functions of the entire brain, including the brainstem.” The AAN guideline only checks for loss of consciousness (an impossibility, since doctors have no tests for conscious awareness, only for the ability to respond), loss of breathing, and loss of certain brainstem reflexes. Because of this mismatch between the way doctors are diagnosing brain death and the law, anyone challenging a brain death diagnosis in a court of law today can expect a reasonable likelihood of success. The recent proceedings of the Uniform Law Commission provide more than sufficient evidence that brain death, as currently diagnosed, does not conform with US law (except in Nevada). Doctors who use the AAN brain death guideline are opening themselves to legal action.


An escalating number of lawsuits will have a chilling effect on doctors’ willingness to declare brain death. Additionally, there could be lawsuits for the pain and suffering of families who will be devastated upon learning that their mothers, fathers, sisters, and brothers were still alive when they were murdered by the surgical removal of their organs. Spiritual care will be needed, not only for those injured by unethical organ harvesting practices but also for the millions who unknowingly received an organ procured in a way that violates most people’s consciences.


People with organ failure will still have options. Living donation, in which both the organ donor and recipient remain alive following the procedure, is already available for all organs except the heart. And the good news is that a totally implantable artificial heart is currently in clinical trials.


A third scenario is that the public remains largely asleep to the horrors of brain dead organ harvesting until new technologies make such transplants outmoded. It is wonderful to anticipate a future when all of our replacement parts might be 3D printed from our own cells. If that should occur, historians will look back with revulsion at the barbaric transplantation era of today. Very likely the legal action and spiritual care described above would still have to take place to heal this national wound.


Recently, news sites have been trumpeting the transplantation of organs from human-pig chimeras into people with organ failure. Combining human and animal genetics to form a new patented ‘subspecies’ opens another Pandora’s box of ethical questions. Where are the human genes for these creatures coming from? Is aborted fetal tissue involved? What is the quality of life for the human-pig chimera? Will endogenous pig diseases enter the human population through these immune-suppressed pig organ recipients?


In the meantime, everyone must take steps to protect themselves from unethical organ harvesting. Dr. Eelco Wijdicks, a neuro-critical care specialist at Mayo Clinic, stated in 2006, “I do not think that brain death examination now, in practice, would have much if any meaning if it were not for the sake of transplantation.” The best way to protect yourself is to refuse to be a registered organ donor. We also need to pursue ethical laws for the determination of death. New Jersey already has a religious exemption to brain death in their legal code. All states should implement opt-out laws for people who object, for any reason, to a diagnosis of brain death.

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