While bioethical conversations like IVF pervade popular political discussions, the topic of brain death seems to have dropped from these debates. But renewed interest in this now-standard medical practice is again needed, particularly following the amendment proposed to the Uniform Determination of Death Act (UDDA) by the Uniform Law Commission (ULC) in July of 2023.
The new “Neurorespiratory Criteria” would stipulate that death may be pronounced following either “permanent cessation of circulatory and respiratory functions,” or “permanent coma, cessation of spontaneous respiratory functions, and loss of brain stem reflexes.”
This proposition is gravely concerning because, though perhaps indefinitely unconscious, comatose patients are still alive. Coma is defined as “a state of deep unconsciousness, an eyes-closed unresponsive state.” The inclusion of “permanent coma” in this criterion is dependent on a theoretical separation of the body and soul – where the two are understood to be distinct, only accidentally related, entities.
Consequently, death can likewise be taken to occur in two phases: “the death of the person and the death of the body.” In other words, when man’s rational capacities cease to function, according to the logic of the amendment, then he is no longer a person in any meaningful sense of the term; even if his body is still “alive.”
In January of 2025, the updated UDDA was (thankfully) passed with its previous formulation of death unamended. However, the 2023 proposition nevertheless indicates the practical threat posed to the most vulnerable individuals when desiccated anthropologies are codified into law; particularly because this “Neurorespiratory Criteria” was articulated with the expressed aim of conforming the law to current clinical standards. If the grounding logic runs amok, so too will the conclusions, and these are conclusions with grave consequences.
To begin, we must first establish what death is. Simply put, it is a metaphysical event that concerns the separation of the soul from the body. The soul, which is both the form of the body and animating principle, gives its essence (existence) over to the body such that the body is united to it in a single nature.
The soul is not restricted to any one organ but is present throughout the whole body. It is consequently responsible for integrating all the “parts” of the body into one whole: it unifies and directs the sub-cellular chemical networks and larger organ systems. Accordingly, the moment of separation from the body is the moment of death; this cannot be measured in an empirical manner, for it concerns the loss of an immaterial substance.
Consequent upon this separation, the material body undergoes a set of physiologically identifiable phenomena. No longer unified with the soul, the body moves, as Schrödinger observed, from order to disorder. This entropic process results in the distortions we commonly take as indicative of death: initially, respiratory and cardiac arrest; subsequently, algor, livor, and rigor mortis; and finally, disintegration.
These signs have always been used to confirm that death had occurred. The immediate termination of the pulse and breath, in particular, was central to what is known as the cardiopulmonary standard. Defined as the “irreversible cessation of circulatory and respiratory functions,” this traditional standard was met with complications following the introduction of mechanical ventilation and other life-support apparatuses. Individuals who would have once quickly died as a result of traumatic injuries and other intensive complications, are now sustained by these technologies. Many patients in these circumstances go on to recover, but some never regain consciousness; and their cardiopulmonary functions are not performed voluntarily, but rather by artificial means. The purported cessation of all brain functions of individuals in this state gave rise to the first proposed definition of brain death by the Harvard Ad Hoc Committee (HC) in 1968.
The HC’s statement offered the following set of criteria for the establishment of death: (1) “unreceptivity and unresponsivity… to externally applied stimuli and inner need;” (2) “no spontaneous muscular movements or spontaneous respiration;” (3) “the absence of elicitable reflexes;” (4) “a flat encephalogram.”
In other words, these individuals appear to be in a sort of medically induced stasis: they do not respond to even the most painful of stimuli, they do not have a “drive” to breath on their own, and they do not appear to have any brain activity. Patients who meet these standards deceptively appear to be alive, with the color and warmth we associate with a still-living body preserved. They have a pulse, and their chest visibly rises and falls as it is filled with air. The reality of death is, in these cases, said to be “masked” by the functioning of the life support machines.
In 1981, the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (PC) met to provide a philosophical, legal, and ethical assessment of three predominant formulations of death: “Whole Brain,” meaning all the functions of the brain; “Higher Brain,” referring to man’s intellectual capabilities and their association with some neurological functions; and “Non-brain,” the traditional cardiopulmonary standard. The second and third formulations were rejected, and the PC accepted the “Whole Brain” definition upon the assumption that “only the brain can direct the entire organism.” In other words, the brain and its functions are principally responsible for somatic unity and integration, and without them, the organism ceases to be an organized system. It ceases, that is, to be alive.
Later that year, this formulation was presented in a legally formalized manner by the UDDA. They stipulated that death may be validly determined upon either the “irreversible cessation of circulatory and respiratory functions” (the traditional standard) or following the “irreversible cessation of all functions of the entire brain, including the brain stem.” These criteria were also separately approved by both the American Medical Association (1980) and the American Bar Association (1981). In 1995 and again in 2010, the American Academy of Neurology published the Neurological Criteria for Determining Death as an addendum to the UDDA, outlining current clinical standards.
Though “Whole Brain” death has been legalized, years of philosophical consideration and an increasing body of clinical and research evidence suggests that this definition — and its subsequent “partial brain” iterations, such as the 2023 amendment — do not demonstrate the absence of life.
In other words, they do not sufficiently indicate that the human being has died; as a result, they err on the side of death, not life. But as human beings comprised of both body and soul, our standards should rather err on the side of life.
