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Abstract
If, as Karol Wojtyla had insisted, the human person is fundamentally irreducible to any natural, biological, social, or even cosmological function, then the diagnosis of death on any of the purely functionalistic grounds available to medical science presents a serious ethical problem. Perhaps we can no longer treat the question of death merely as a medical “diagnosis,” regarding, on that basis, the appropriateness of organ transplantation as a purely medical judgment, ethically accountable only to professional standards of care. We will explore this problem from within a personalistic philosophical, and theological framework, according to which the irreducibility of the human person provides the central referent for an analysis of the reductionistic tendencies of contemporary thinking concerning the “diagnosis of death.”
Notes
1 This article is a revision of a paper initially presented at the conference “The Ethics of Organ Transplantation,” The Center for Thomistic Studies at the University of St. Thomas and St. Joseph Medical Center, Houston, TX, March 27–29, 2009.
2 Buber develops the idea of interpersonal encounter and valuation throughout the body of his work, but most thoroughly in his work I and Thou, originally published in German under the title, Ich und Du. The German term du is untranslatable into English, because we have no equivalent pronoun. The German du indicates something akin to you-my-beloved, or you-my-dear. The contrast between the I-It or Ich-Es and I-Thou or Ich-Du relations comes across to the reader in much starker contrast in Buber's original text than in any English translation.See, Martin Buber, Ich und Du (Gütersloh: Gütersloher Verlags hauses, 1983). For an English translation, see Buber (Citation2000).
3 Pius XII, in his, “Address to an International Congress of Anesthesiologists” (November 24, 1957), declares that, “It remains for the doctor, and especially the anesthesiologist, to give a clear and precise definition of “death” and the “moment of death” of a patient who passes away in a state of unconsciousness.” See Pius (Citation1957). In this allocution, Pius XII is not addressing the question of the death of a person who is still conscious, but the question immediately arises, nonetheless, since the transition into death always involves an eventual loss of consciousness—at least, that is to say, a loss of consciousness through the body. Thus, later magisterial statements do not include any caveat on this matter. Pope John Paul II simply states that, “The Church does not make technical decisions” (John Paul II, “Address to the 18th International Congress of the Transplantation Society” [29 August 2000], n. 5), and considers the health-worker as, “professionally responsible for ascertaining death” (ibid.).
4 In the United States, regulations governing the pronouncement of death fall under the jurisdiction of the individual States, and regulations vary. Typically, these regulations restrict the pronouncement of death to a physician, medical examiner, or coroner. Increasingly, Registered Nurses are being granted such authority in clinical settings, where they are under supervision by physicians, such as in hospital and hospice settings. Still, there are legal standards designating the pronouncement of death as a clinical assessment or medical diagnosis, which only certain medical practitioners are given license to perform. Such professionals are, thus, provided legal protections in the exercise of this judgment that lay actors would not enjoy under the law.
5 In each of these cases, the moral problem is typically framed in terms of bio-physiological functionality. Such criteria include viability, sentience, and intellection. We ask whether what stands before us is an integral organism or merely a mass of tissue, and whether, if it is an integral organism, it might not qualify as a bearer of rights or a moral patient in any sense, and attempt to answer these questions on the basis of bio-physiological criteria alone.
6 See Wojtyla (Citation1993, Citation1988). This essay, pivotal for any real understanding of Wojtyla's broader philosophical views, originally appeared as, Karol Wojtyla, “Podmiotowsci I “to co nieredukowalne” w czlowieku,” Ethos 1.2–3 (1988): 21–28. According to the editorial notes appended to the translation, this paper is considerably earlier than its first publication would suggest; Wojtyla sent it to a conference in Paris held June 13–14, 1975. Beyond the date of the conference, no further specifics of the event are provided. See also Karol Wojtyla, “The Problem of Catholic Sexual Ethics: Reflections and Postulates,” in Karol Wojtyla, Person and Community, 279–299, in which he attempts to move from an Aristotelian/Thomistic naturalistic and teleologistic account of sexual ethics to a personalistic and normative one. This article was originally published as Karol Wojtyla, “Zagadnienie katolickiej etyki seksualnej: Refleksje i postualaty,” Roczniki Filozoficzne 13.2 (1965): 5–25.
7 In philosophical terminology, “patiency” refers to the condition of the patient as patient, where the term “patient” is taken in its original broad and literal sense, as one who receives the action of another. We possess “medical patiency” insofar as we are the recipients of medical acts—i.e., when we become medical patients. We possess “moral patiency” insofar as we are the recipients of moral acts—that is to say, insofar as we have moral worth that constitutes a relationship of obligation for moral agents who become conscious of our presence to their actions. We contend that a subject may be a moral patient without being a moral agent, just as a subject may be a medical patient without being a medical agent; but, as we will see in the course of this paper, moralists are increasingly coming to reject this view—a fact linked directly with reductionistic presuppositions about personhood.
8 Pius XII, “The Prolongation of Life,” 396. Cf., also, Catechism of the Catholic Church, n. 1016.
9 Most notable among these thinkers is neurologist D. Alan Shewmon, who, in 1998, published a shocking critique of the equation of “brain death” to “death.” In this article, he demonstrates that the tendency of brain dead patients toward asystole is transient, such that the observable data show numerous cases of patients who have stabilized after the initial “acute phase” of the onset of neurologic injury. In 2001, he followed up his research with a devastating article (Shewmon Citation2001). Since that time, numerous peers have come to agree with Shewmon, that “brain death” is not “organismic death.” James M. DuBois, presents an interesting overview of the controversy in his article, “Brain Death and Organ Donation,” America (2 February 2009): 19–22. We do not suggest that DuBois sides with Shewmon, but that his article provides a synopsis of the current state of the controversy, naming some of the integral figures on the side of those who oppose brain-related criteria for the determination of death. He names, among others, Paul Byrne, M.D., former president of the Catholic Medical Association, who, as recently as 2009, had flatly asserted that “the transplantation of unpaired vital organs … causes the death of the ‘donor’ and violates the fifth commandment of the divine Decalogue, ‘Though shalt not kill’ (Dt. 5:17),” attaining over 400 co-signatories (DuBois, “Brain Death and Organ Donation,” 19). Also of note is Potts et al. (Citation2000). Austriaco, O.P., sees the standard as motivated entirely by the desire to obtain organs for transplantation, and not by any medical confidence that the patient of first instance is actually dead. See his article in Austriaco (Citation2003). Austriaco argues, instead, for the loss of somatic integrity as the minimally acceptable criterion for determining death of the person. See also Austriaco (Citation2009). Still another important voice, here, is that of Grattan T. Brown, who, while not coming out decidedly against the brain-death criterion, takes the controversy seriously, and prescribes caution. See also Brown (Citation2007).
10 Catechism of the Catholic Church, n. 2296 (cf., also, n. 2301).
11 Ibid., n. 2296.
12 John Paul II, “Address to the 18th International Congress of the Transplantation Society,” n. 4. My emphasis.
13 Ibid., n. 5.
14 In philosophical terminology, “epistemic” refers to that which relates to the acquisition or operation of scientific understanding. It derives from the Greek, ἐπιστήμη (epistëmë), which connotes a systematic, didactic understanding of an issue. Moral certainty is not an epistemic condition because it does not emerge from a fully systematic understanding of the issue upon which a person is called upon to act as a moral agent, but from a reflective consideration of the identifiable limits of one's understanding in the face of the duty to assume a positive posture, or to elicit an imminent act.
15 Ibid.
16 Pius XII, address, “The Prolongation of Life,” 398.
17 John Paul II, “To the 18th International Congress of the Transplantation Society,” n. 5.
18 Benedict XVI addresses this concern in his “Address to Participants at an International Congress Organized by the pontifical Academy for Life” (November 7, 2008), where he says:
In these years science has accomplished further progress in certifying the death of the patient. It is good, therefore, that the results attained receive the consent of the entire scientific community in order to further research for solutions that give certainty to all. In an area such as this, in fact, there cannot be the slightest suspicion of arbitration and where certainty has not been attained the principle of precaution must prevail. This is why it is useful to promote research and interdisciplinary reflection to place public opinion before the most transparent truth on the anthropological, social, ethical and juridical implications of the practice of transplantation. However, in these cases the principal criteria of respect for the life of the donator must always prevail so that the extraction of organs be performed only in the case of his/her true death. “Benedict references the Compendium of the Catechism of the Catholic Church, n. 476.”
19 John Paul II, “To the 18th International Congress of the Transplantation Society,” n. 8. My emphasis.
20 Indeed, it should be noted that theologians are well-aware of the fact that few popes, historically, have been able to claim sole authorship of the various teaching instruments promulgated under their authority, and that not all magisterial documents bear the same authoritative weight. Speeches are directed at specific audiences, in circumstances decidedly conditioned by history and culture—for example, by the current state of scientific understanding concerning a specific matter of inquiry—and thus, carry little authority in the grand sweep of the Tradition.
21 The National Catholic Bioethics Center posts an “FAQ on Brain Death,” in which they pose the question, “Why do some say that taking organs from those declared dead by neurological criteria is a form of homicide?” The response to this question reads, “Such comments are irresponsible. Those who make such statements wrongly believe that a person is still alive because the corpse appears to be alive from the effect of oxygenated blood continuing to be pumped through the body by mechanical means. Those who reject the use of neurological criteria for the determination of death claim that a patient declared dead by this method is killed for his organs. Such comments overlook the important distinctions mentioned above, and are in tension with sound Catholic teaching” (FAQ on Brain Death; http://www.ncbcenter.org/Page.aspx?pid=436). Unfortunately, there simply are no “important distinctions mentioned above” this assertion. The entire FAQ begs the question of whether neurological criteria are sufficient to determine true death of the person, and, instead, simply affirms the consequent on this matter.
22 Cf., however, Karakatsanis and Tsanakas (Citation2002). Also relevant is an earlier article by Trouog (Citation1997).
23 There, they assert that, “when the whole brain is dead, the person is dead, since the organ that is the source of unified activity no longer functions, even though there may still be signs of residual cellular activity in the brain and other parts of the body.”
24 Shewmon was personally familiar with this case, commenting on it in his article, “Chronic ‘Brain Death’, ” 1543, while the patient was still, by all other criteria, alive. In his keynote address, “Brain Death,” at a conference in March of 2009 (The Ethics of Organ Transplantation, The Center for Thomistic Studies at the University of St. Thomas and St. Joseph Medical Center, Houston, TX, March 27–29, 2009), Shewmon shared the results of the patient's post-mortem. It was discovered that the brain had completely calcified, indicating that the brain had, indeed, been dead for quite some time before total system failure occurred.
25 Actor Christopher Reeve, for example, who was manifestly not dead in the interval between May 27, 1995, and October 10, 2004, had been maintained during that interval on a similar type of machine. The sole discernable differentiating element between Reeve and the boy in Shewmon's study was that Reeve's brain remained alive. Apart from this difference, both patients maintained somatic integrity, although the boy remained supposedly “dead” longer than Reeve remained manifestly alive in this state.
26 The Greek σῶμα (soma) refers to an organism as a living whole. This term appears 142 times in the New Testament in one form or another. It is the word that Christ employs in the Institution Narratives in the synoptic Gospels, when declaring that, “this is my body” (Matthew 26:26, Mark 14:22, Luke 22:19, cf., also, 1 Corinthians 11:24)—that is to say, “This is me in my entirety as a living whole.” St. Paul's theology of “the body of Christ” is built upon this word. Telling, also, in the New Testament, is the fact that Christ's σῶμα, rather than his σάρξ (sarx = flesh or meat of an animal) is taken down from the Cross upon his death and laid in the tomb (Matthew 27:58–59; Mark 15:43; Luke 23:52, 23:55, 24:3, 24:23; John 19:31, 19:38, 19:40, 20:12), because Christ's death is itself a triumph over death—over the dis-integration of σῶμα into σάρξ, confined as it is to the coming-to-be and passing-away of biological life or βίος (bios = life of the animal or the duration of earthly life) as opposed to ζωή (zoë = true life or spiritual life). The reintegration of the σῶμα through the raising of βίος into ζωή in Christ is one of the New Testament's meta-narratives, which stands at the foundation of the concepts of Incarnation, resurrection, ascension, assumption, and παρουσία (parousia), and which must, for that reason, also form the foundation of our concept of the integrity of the body–soul totality as “materially instantiated spirit” or “spiritually realized matter.”
27 Moraczewski, “Death and the Determination of Death,” 12/4. My emphasis.
28 Cf., Aquinas, Summa theologiae, I, q. 76, a. 8. See, also, Catechism of the Catholic Church, n. 365.
29 Moraczewski, “Death and the Determination of Death,” 12/5. My emphasis.
30 John 11:1–44.
31 The classic text on this matter, written from the perspective of a medical professional who, as such, is not invested in a specifically philosophical or theological interpretation of his observations, is Moody (Citation2001).
32 In fact, Christian tradition suggests an intuition of faith with respect to the issue of a temporal duration to the process of dying. Pius XII had insisted that, there remains sufficient doubt as to the precise moment at which the process of dying has reached its term that the sacraments should not be withheld from person's diagnosed with “brain death” (Pius XII, address, “The Prolongation of Life,” 396–397). The practices of venerating relics of the saints and burying the deceased with a view toward resurrection, suggest that the deceased maintains some transcendent link to the body he or she has left behind. We agree that such persons are “dead,” but even in the face of this agreement, the relationship between the soul and the body remains a mystery. Similarly, cases of miraculous preservation or “incorruptibility” of the bodies of certain saints, whether in whole or in part—for example, St. Catherine of Siena, St. Jean-Marie-Baptiste Vianney, and St. Bernadette Soubirous—and, as in the case of St. Nicholas of Myra, for example, the unexplained expression of aromatic oils from the bones of some saints, are difficult to ignore as a sign of some meaningful connection between the deceased and the body of the deceased, once again, enshrouding the question of how long it really takes finally to die in utter mystery. Death itself, even beyond the process of dying, is a mystery, for Christianity. St. Thomas, in one passage, for example, even goes so far as to describe the separation of the soul from the body as an “unnatural” condition, which, for that reason, cannot constitute a perpetual state of nature for human beings (cf. Aquinas, Summa Contra Gentiles, IV.79).
33 This terminology derives from the philosophy of Aristotle, who noted that among the definitive marks of a true “substance” is its ability to take on contraries while yet remaining what it is in itself (Categories 5.4a10–4b20). In other words, Socrates can be, at one moment, thin, and at another moment, obese, while yet remaining Socrates in both conditions. Socrates, the “substance,” exhibits the “accidental characteristic” of being obese. Thin or obese, Socrates remains Socrates, but without Socrates, there can be neither “thin” nor “obese.” Scholastic philosophers and theologians applied this way of thinking about physical substances to acts, which they regarded as, in a sense, “things”—intentional objects produced by willful human agency. This language was meant to convey the fact that human acts—acts performed with understanding and free-will—have their own innate structure: a kind of “essence.” On this model, reflected in official magisterial teaching even today (cf. Catechism of the Catholic Church, n. 1749–1761), an act of the same structure can be performed under different circumstances and remain the same kind of act: an innocent man can be killed for his wallet in the prime of his life, or for his liver in his final agony. The difference in circumstance is “accidental,” but the act is the same in “substance.”
34 The so-called “Pittsburgh Protocol” was introduced by the University of Pittsburgh Medical Center in 1993, and was accepted by the Council on Ethical and Juridical Affairs (CEJA) of the American Medical Association in their Report 4–I-94, Ethical Issues in the Procurement of Organs Following Cardiac Death: The Pittsburgh Protocol (1994). With this report, the Pittsburgh Protocol was provided a space for entrance into the mainstream of medico-ethical practice. This protocol permits the procurement of organs for transplantation in conformity with the so-called “dead donor rule” a mere two minutes after cardiac arrest. According to this protocol, cardiac arrest is deemed “irreversible” if the patient, or the patient's surrogate, has agreed to withdraw life-sustaining interventions. Cardiac arrest in these cases is “ethically irreversible,” even if not “medically irreversible,” satisfying the ethical standards of the CEJA and the staff of the UPMC.
35 In a review of thirty-eight cases of auto-resuscitation, seventeen achieved functional neurological recovery. Of this number, only three subsequently died prior to discharge from the hospital. Of those who were successfully discharged, one had auto-resuscitated after an interval of fully 20 minutes (Adhiyaman, Adhiyaman and Sundaram Citation2007, 553, table 1).
36 The reader may bring a charge of argumentum ad ignorantiam at this point. That charge would hold, however, only if we restricted the parameters of our argument to what we do not know. In the present case, we have introduced evidence demonstrating positive knowledge of non-immediate death in a limited number of cases, thus placing the burden of demonstration upon the shoulders of the person who would argue for immediate death. It is not possible to observe immediate death, empirically, if, indeed, it ever occurs; but the non-immediacy of death has been observed, empirically, in some cases, where, in fact, these patients did not die after prolonged periods of asphyxia.
37 Perhaps the most vocal proponent of this view today is Robert D. Truong, M.D. We have already referenced his article, “Is It Time to Abandon Brain Death?” His position is unchanged in Truog and Robinson (Citation2003), and in his article, Truog and Miller (Citation2008), he and Miller argue in favor of a “non-malfeasance” standard, according to which the patient is harmed in no meaningful respect. On grounds that the patient would be expected to die whether or not his or her vital organs were removed, the removal of vital organs would harm the patient in no significant respect, instead, merely changing the interval of time until final realization of the ultimate patient-care outcome (“The Dead Donor Rule and Organ Transplantation,” 675). Truong's reasoning rests, of course, on unabashedly utilitarian and consequentialist presuppositions, which, from within a Catholic frame of reference, would have to be rejected (cf. John Paul II, encyclical letter, Veritatis Splendor (6 August 1993), 74–79. It is clear that Truong, who proposes that we reject brain-related criteria for diagnosing death as inherently incoherent, does not regard as a per se evil the deliberate, direct killing of the innocent. For him, death—whether we are speaking of “brain death,” “cardiac death,” or “true death”—is not a decisively relevant factor in the decision to harvest organs ethically. Once an unthinkable position, Truog's option must be regarded, today, as precisely the terrain upon which this debate is now taking place.
38 In philosophical terminology, “organismic” refers to that which pertains to the organism as organism. The integration of organ systems, for example, is an “organismic” quality. Ms. Shiavo was “organismically” alive at the time her fate was being decided in a Florida courtroom: all of her essential organ systems were functioning, she maintained homeostasis and underwent spontaneous respiration, and she was capable of digesting her own food, however severe her impairment may otherwise have been.
39 This definition comes down to us as, naturae rationalibus individua substantia or an individua substance of a rational nature. Boëthius provides this definition in his Contra Evtychen et Nestorium, III.4.
40 In formulating his definition of “person,” Boëthius was attempting to safeguard the orthodox Christian position of the Councils of Ephesus (431) and Chalcedon (451), that the Christ is a single, integral whole of God and humanity, not two separate beings (as in Nestorianism). His reference point for the term “person,” in this context, then, was the divine (ὑπόστασις) hypostasis, and he was not, therefore, attempting to trace out the precise boundaries of human-personal existence, much less to do so in the light of today's ethical considerations. We may regard Boëthius’ contribution as useful for anthropological discussions, and as generally true, even within this context foreign to his own concerns; but we cannot call his definition finally “complete.” On the other hand, Boëthius and the Fathers of these foundational Christological councils must be credited with introducing a concept of personhood conducive to developments in philosophical anthropology that had not been visible to philosophy prior to their illumination by the concerns of theology to articulate the dogmatic content of the faith.
41 Wojtyla, “Subjectivity and the Irreducible in the Human Being,” 212–213.
42 Rosenberg quotes this passage in “Consciousness, Coma, and Brain Death,” 1173.
43 Ibid., 1173–1174.
44 Cf., David Hume, A Treatise of Human Nature, I.4.vi.
45 John Paul II, “To the 18th International Congress of the Transplantation Society,” n. 8.
46 Cf., Wojtyla, “Subjectivity and the Irreducible in the Human Being,” 213–215.
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Richard H. Bulzacchelli
Richard H. Bulzacchelli, M.A., M.A., S.T.L., S.T.D., is Assistant Professor of Theology at Aquinas College in Nashville, Tennessee, and a Senior Fellow with the St. Paul Center for Biblical Theology.