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The Catholic Health Association OF THE UNITED STATES CHA is dedicated to the healing ministry of Jesus. It witnesses this ministry, through education and advocacy, by: • Promoting the health of those who are sick and those who are infirmed; • Respecting human dignity in the experience of sickness and death; • Facilitating those structures which foster the physical, psychological, social, emo tional and spiritual well-being of people. CHA represents more than 850 hospitals and long-term care facilities in America, as well as their religious congregations and other health care institutions, agencies, and services sponsored as Catholic. Its national headquarters are located at 4455 Woodson Road, St. Louis, MO 63134 (314/427-2500), with additional offices at Washington. DC and New York. This document represents one more service of The Catholic Health Association. deteraniration o f death Theological, M edical, Ethical, and Legal Issues Rev. Albert S. Moraczewski, OP, PhD Vice-President for Research Pope John Center & J. Stuart Sbowalter, JD, MFS Director, Division of Legal Services The Catholic Health Association discardedby ST. VINCENT COLLEGE U B ij/». The Catholic Health Association of the United States St. Louis, MO 63134 KF 3Z<? 7 ZW Copyright ® 1982 b>' The Catholic Health Association of the United States St. Louis, Missouri 68134 Printed in the United States of America. All rights reserved. This book, or any part thereof, may not be reproduced without the written permission of the publisher. Library of Congress Cataloging in Publication Data Moraczewski, Albert S., 1920- Determination of death. Includes bibliographical references. I. Death—Proof and certification—United States. 2. Brain death—Moral and ethical aspects. 3. Brain death—Religious aspects— Catholic Church. I. Showalter, J. Stuart. II. Title. KF3827.D4M67 306.9 82-1127 ISBN 0-87125-072-1 AACR2 234503 contents Introduction I Part 1: Theological, Medical, and Ethical Concerns 5 Biblical Roots 5 Official Church Teaching 7 Recapitulation 10 Medical Aspects 10 Philosophical and Ethical Reflections 15 Summary 19 Part 2: Legal Aspects 21 Background 21 States with Legislation 23 States without Legislation 26 Uniform Determination of Death Act 27 Summary 29 Conclusion 31 Notes 33 (Y l F j i' r / y ~ iii intRodcictfon Vex not his ghost: 0, let him pass! he hates him That would upon the rack of this tough world Stretch him out longer. King Lear Act V, scene 3 Perplexing questions surrounding what has come to be rather loosely referred to as “the definition of death issue” have received more space in the medical/legal literature in the past few years than perhaps any other single issue. These questions have been the topic for numerous conferences and countless exchanges between religious leaders, attor neys, medical specialists, and hospital personnel, as well as laypersons. They continue to be a key issue in lawsuits around the nation and have been the subject of intensive research and testimony by the President’s Commission for the Study of Ethical Problems in Medicine and Bio medical and Behavioral Research. Nevertheless, many issues remain unsettled. The subject gains in interest because it is unique to our modern era. From the beginning of history, death was a simple occurrence: one was either dead or alive and there appeared to be no middle ground despite the sporadic concern in some eras that a person could be buried alive. Death was simply “the cessation of life; the ceasing to exist. .. .,!1 But in the past two decades, advances in medical technology have made the standard determination of death passe under certain condi tions. Artificial maintenance of respiration and circulation now creates serious legal difficulties in the areas of homicide, negligence claims, 1 Determination of Death insurance, transplantation of anatomical parts, workers’ compensation, probate law, and taxes. Similarly, difficult ethical, moral, and social questions attend the determination of when, or whether, from medical and legal perspectives, a person is dead. Recognizing the controversy surrounding the so-called “definition of death issue” and responding to inquiries from the members of The Catholic Health Association, the CHA staff, in collaboration with the Pope John XXIII Medical-Moral Research and Education Center, initi ated a staff study project on this topic. Committee members include Patricia Cahill, JD, CHA vice-president, Government Services; Sr. Margaret John Kelly, DC, PhD, CHA vice-president, Mission Services; Rev. Adam Maida, JD, JCL, CHA special counsel and canonist; Rev. Albert Moraczewski, OP, PhD, Pope John XXIII Medical-Moral Research and Education Center vice-president for research; J. Stuart Showalter, JD, MFS, CHA director, Legal Services. The protocol included a general review of the topic and a specific concentration on the question of the need for, and the value of, legislation at the state or federal level to govern actions in this area. It is important to recognize that some writers and commentators on this subject improperly classify the issue as one of defining death. In reality, however^jJhe. definition of death (the expression of the essential meaning of the word) is not the central issue. What is truly at issue is the determination of criteria, beyond the traditional absence of cardio respiratory function, that physicians can use accurately, reliably and practically to diagnose death. The authors avoid using the expression “defining deatK. TTeftce, throughout this study the authors refer to the brain-related criteria for determining death’s occurrence as a relatively precise event in one’s personal history. The brain is identified as the appropriate organ because it is the integrating, unifying force of the individual. Research for this study involved a winnowing process to eliminate many of the topics that, though important, are not directly concerned with the acceptance of brain-related criteria. Among these are: eutha nasia, both active and passive;2 abortion; the so-called “right” to be born well;3 criminal and tort liability of physicians;4 the moral implica tions of extraordinary life support measures;5 the validity and advisability of the “living will”;6 the Uniform Donor Act and transplants of anatomi cal parts;7 and the right to refuse treatment either for oneself or for an incompetent.8 The foregoing issues are primarily concerned with answering the question, “Should the patient be allowed to die?” This study, on the other hand, addresses, “Is the patient dead?”9 Furthermore, the study ques- 2 Introduction tions whether the standards for answering the questions are necessary and proper subjects of legislative action. The central issue, “Is the person dead?” is discussed in two major segments. In the first section, “Theological, Medical, and Ethical Con cerns,” Fr. Albert Moraczewski traces the issue with its broad ramifica tions through its biblical and theological roots up to current Roman Catholic Church teaching. He analyzes the Christian concept of “person” as well as the traditional emphasis on the divine origin of all human life, which establishes each person as a responsible and accountable steward. Fr. Moraczewski also addresses the medical/ethical question of who has the right and responsibility for determining death and the effects of biotechnology on that diagnostic determination. In describing the various criteria that have been offered since the 1968 Harvard University criteria, he highlights the diversity of opinion among authorities. The philosophical section reflects on the nature of life and its impact on the issue of the relationship of brain death to the death of the person and concludes with a response to the question, “Is legislation required?” In the second section of the study, attorney Stuart Showalter discusses the statutory and case law aspects of the topic. He traces historically the effect of biotechnological innovations on the issue, such as cardiac transplant surgery. In his review of case law, Mr. Showalter concludes that the determination of when death occurs is a clinical medical judg ment, not a legal one, and that a consensus has been reached that “death” requires that the total brain, including the brain stem, be without function. The three types of definition of death statutes existing within 29 states are compared and contrasted with their mandatory or voluntary natures cited. Again, he notes that the legislation also emphasizes the fact that determination of death is a clinical diagnosis, not a legal decision. In comparing litigation in states that have legislation with those that do not have legislation, Mr. Showalter concludes that the absence of legislation is not determinative of the judicial outcome. In fact, to date, no case exists in which the concept of brain death has been rejected. The efforts to establish a “Uniform Determination of Death Act” (UDDA) are also described. Mr. Showalter concludes that education (particularly that of physicians, lawyers, and pastoral personnel), rather than legisla tion, is the better way to deal with this very complex issue. The authors and the committee members opine that the advancing status of biotechnology, as well as the growing predisposition to refer human value issues to the legislative arena, demand study on the part of the contemporary health care decision makers, particularly those w'ho represent the Christian value system. They note that currently the 3 Determination of Death number of cases requiring the use of such criteria to determine death is minimal but that the basic value issues involved are fundamental. This work is offered as a first step in a study of a very complex human issue. It is also offered as an invitation to the reader to share convictions and experiences in this area and to direct one’s focus to the origin, purpose, and destiny of the human being. 4 p a R t 1: theological, medical, and ethical co n ce rn s Biblical Roots As Moses was approaching the end of his life and leadership of the Israelites, he reviewed for the people all of God’s favors toward them as well as the commandments he had given them. Moses ended his exhor tation with the words, I have set before you life and death, the blessing and the curse. Choose life, then, that you and your descendants may live, by loving the LORD your God, heeding his voice, and holding fast to him. For that will mean life for you . . . (Deut. 30:19-20).* The emphasis on life is a common theme in the Old Testament. At least 80 times the God of Israel is called upon with such expressions as, “living God,” or, “God lives.”10 To live is far better than to be dead, according to the Old Testament, because the Lord is the God of the living, of life; and death is a curse. For the New Testament writers, life in this world gives way to another life, a life bought for us by the life, death, and resurrection of Jesus Christ.11 St. Paul states it with unparalleled eloquence: * Script me texts used in this work arc taken from the AW American Bible, copyright 1970, by the Confraternity of Christian Doctrine, Washington, DC, and used by permission of copyright owner. All rights reserved.