Paul A. Byrne, M.D.
The Uniform Determination of Death Act (UDDA) has been adopted in all 50 states based on the recommendation of the Uniform Law Commission (ULC), although not all using identical language. Now the ULC is considering revision of the UDDA.
This is a good idea but only if the revision will correct the problems with the current UDDA replacing it with a statute that protects life until true death. A person's death is the cessation of his own life on earth. The precise moment when his life ends is of paramount importance. There is no ground for legal presumption or for less secure criteria. The right to live is the most basic right and no one ought to shorten life or hasten death. The state is obligated to protect the individual's right to live as long as he is able. This obligation is independent of any other interests, assuming that the person is innocent of capital crime.
The UDDA states, “An individual who has sustained either 1) irreversible cessation of circulatory and respiratory functions, or 2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.”
The first (1) “irreversible cessation of circulatory and respiratory functions” has been accepted for eons. “Irreversible” was added by the UDDA but that had traditionally been determined by waiting sufficient time for some form of biological destruction to occur so as to be certain that death had actually occurred.
The second (2) “irreversible cessation of all functions of the entire brain, including the brain stem” also known as “brain death” and death by neurological criteria (DNC) has been, since its inception, and continues to be controversial, even if widely practiced in medicine and legally protected.
Ideal Statute Wording
An ideal statute should be worded in the negative to protect lives. The ideal statute should protect the person from being declared dead when they might still be alive. Suggested wording is, “No one shall be declared dead unless respiratory and circulatory systems and the entire brain have been destroyed. Such destruction shall be determined in accord with universally accepted medical standards.”
It is essential that determination of death by neurological criteria (DNC) be understood by the general public, all clergy, doctors, nurses, attorneys, legislators et al.
In recent legal cases, loved ones of patients who were declared dead according to neurological criteria with continued beating heart, circulation, and many other signs of life, fought to protect and preserve the life of their loved one (Jahi McMath, Israel Stinson, Aden Hailu, Bobby Reyes, Allen Callaway, Miranda Lawson, Areen Chakrabarti).
The Supreme Court in NV unanimously (7-0) ruled that the case of Aden Hailu be sent back to the lower court because they were not convinced that the hospital’s use of American Academy of Neurology Guidelines (AANG) fulfilled the statutory requirement of “irreversible cessation of all functions of the entire brain including the brain stem.” The statute in NV was shortly thereafter changed to codify that the determination of DNC must be made in accordance with the AANG. The Supreme Court also questioned whether the AANG adequately measure the required “irreversible cessation of all functions of the entire brain.” The AANG although widely used are not evidence based and do not fulfill the statutory requirement of “irreversible cessation of all functions of the entire brain.”
Neurologist D. Alan Shewmon wrote, "It has long been recognized that in some cases of clinically diagnosed brain death, certain brain structures may not only be preserved but actually function, such as the hypothalamus.” This is the case in patients without diabetes insipidus, low thyroid hormone, or the inability to maintain temperature control.
Irreversibility is not an empirical concept, i.e., not directly observable or provable by experience or experiment. “Both destruction of the brain and the cessation of its functions are, in principle, directly observable; such observations can serve as evidence. Irreversibility, however, of any kind, is a property about which we can learn only by inference from prior experience. It is not an observable condition. Hence, it cannot serve as evidence, nor can it rightly be made part of an empirical criterion of death.”
The destruction of the brain is what is convincing of irreversibility, not vice versa. “But if there is no proof of complete destruction, then any declaration that a cessation of function is absolutely irreversible is a presumption, even if well grounded, which is contingent on the current state of medical knowledge and on the availability of adequate life-support systems in the concrete circumstances. Even if the presumption is correct, it establishes … no necessary link with destruction of the brain. If it is incorrect, the patient may possibly be cured. Thus, whether right or wrong, a presumption as to the irreversibility of a lack of brain function is insufficient ground for removing a patient's vital organs or for immediate autopsy, cremation, or burial.”
Function, functions, functioning
The UDDA states “all functions of the entire brain” must have ceased. The brain has many functions, some of which continue even after “brain death” is declared. To exclude some functions and not others does not meet the statutory requirement of cessation of all functions of the entire brain.
Absence of functioning does not necessarily mean cessation of all functions.
The UDDA has sought to turn a “cessation of all brain functions of the entire brain, including the brain stem” into a general criterion of death. This is “a fundamental category mistake: to take that which functions to be simply identical with its functioning. Yet, if something irreversibly ceases to function, its existence is not necessarily extinguished thereby; it merely becomes permanently idle. Nonfunction, no matter what prognostic qualifiers are used with it, is not the same thing as destruction.” E.g., When an automobile is parked, it is not functioning, but the functions are still there; a driver and fuel are needed.
Importance of “destruction” of circulatory and respiratory systems and the entire brain
It is important to note that “destruction” is the only acceptable interpretation of the phrase “irreversible cessation of all functions.” Destruction indicates the loss of structural potentiality for functioning, i.e., the cessation of the organic capacity to function.
The condition or state known as “death,” once it has occurred is totally incapable of being in any way affected by medical progress. Prognosis, whether of recovery or destruction, is irrelevant to any determination of death; nor is the impossibility of even minimal recovery the same thing as death.
Accepted medical standards vs. legislating AANG as the only standard
Many sets of criteria to declare DNC have been considered “accepted medical standards” beginning with the Harvard criteria in 1968. Between 1968 and 1978 there were more than 30 sets of criteria considered as “accepted medical standards.” Lewis et al. propose a revised uniform determination of death act (RUDDA), which would effectively make the AANG and any future updates as the only “accepted” medical standard.
Importance of accurate language
Medical personnel may use language about death that is imprecise. For example, doctors may tell the patient or family that a patient who had a cardiac arrest and was successfully resuscitated had “died” but really what was observed was the cessation of the person’s circulation and respiration. The patient’s condition was obviously not irreversible. The patient may have been near to death and might have died if an intervention had not been attempted and then succeeded, but the patient was never truly dead. Many seem to be unaware or ignorant of the word “irreversible” even when using the cessation of circulatory and respiratory functions as criteria for death as in the UDDA.
UDDA – two ways to declare death
The UDDA has at least two ways to declare a person “dead.” This is not satisfactory for medicine, the law, and the general public. Very few of these have been presented with sufficient information to discern the differences that have been placed into law since the Harvard criteria in 1968, continuing with the President’s Commission in 1981 and the AANG.
Signs of life before and after DNC “brain death”
The public has not been informed that a person declared DNC, i.e, “brain dead” still has a heart beating on its own, circulation, respiration (exchange of oxygen and carbon dioxide in the tissues albeit on a ventilator).
Other signs of life continue such as wound healing, which is a complicated diffuse process throughout the body of many factors circulating in the blood and interacting with cells and tissues and maintained by the liver and white blood cells.
There is urine production, maintenance of body temperature, homeostasis of many interdependently functioning organs and systems, and if the patient is a pregnant woman, even the ability to carry and nourish the baby in the womb.
All of the above do not occur in a corpse but often occur in a patient after the declaration of “brain death.” Doctors may refer to the patient declared dead using DNC as a corpse, but the patient still has signs of life unlike a true corpse.
All functions are not evaluated and some which are functioning are ignored.
Unless all functions of the entire brain are evaluated it is not possible to determine that all functions have ceased. Laboratory tests show that parts of the brain such as the hypothalamus may still function and secrete hormones needed for the body including the brain to function optimally. If a loved one has brain injury and “brain death” is being considered, it is reasonable to demand that blood tests for thyroid stimulating hormone (TSH), T3, T4, and other hormones such as adrenocorticotropic hormone (ACTH) be done and the patient be treated since even current AANG are supposed to rule out endocrine abnormalities. The AANG do not require testing for hypothalamic-pituitary hormones nor for treatment if thyroid hormone levels are below normal. No revisions of the UDDA should allow patients with parts of the brain still functioning to be declared dead.
Currently patients declared “brain dead” might be treated with thyroid hormone after the declaration of “brain death” to benefit organs for transplantation, not for the health of the unresponsive patient. The AANG mention endocrine abnormalities but do not require blood tests or treatment to normalize low thyroid hormone levels that may occur with brain swelling and affect brain functions. Thyroid hormone is essential to life and health, especially at times when healing is necessary.
A function of the brain is to control normal body temperature. This occurs but is often ignored as demonstration of a functioning brain.
Procedure of the Apnea Test (PAT)
A function of the brainstem part of the brain is to take a breath when carbon dioxide waste product levels in the blood increase. To exclude that this part of the brain is functioning, the procedure of the apnea test (PAT) is often done or attempted.
A patient must be on a ventilator to be considered for DNC (i.e., “brain death”). To make a clinical declaration of “brain death,” the PAT may be done. The PAT may be performed after the unconscious brain-injured patient does not respond to pain stimuli or voice commands, and does not show functioning of some brain stem reflexes, but not all are tested.
The PAT includes complete disconnection from the ventilator without any breaths being given for 10 minutes or longer. This causes the waste products of carbon dioxide and acids to increase. If the patient is not observed to take a breath or gasp during this time and the arterial blood gas sample shows a carbon dioxide level of at least 60 mmHg or 20 mmHg above baseline, the patient may be declared officially “dead” by “brain death” neurological criteria.
Doctors, without notice or consent, do the PAT because they may consider it part of their “neurological exam.” However, it is more properly termed a “procedure” because the life-preserving ventilator is removed and oxygen may be administered. There are other steps in the procedure including obtaining arterial blood samples. Full and complete information should be provided so that the family has the opportunity to decline and prevent it from being done on their loved one. The PAT has no clinical benefit for the brain-injured patient, only risks, including deleterious effects on brain swelling. Adverse changes in blood pressure and the increased carbon dioxide acid waste products can make brain swelling worse. Other side effects that have been reported during the PAT are low oxygen (hypoxemia), arrhythmias, pneumothorax, subcutaneous emphysema, pulmonary hypertension, heart attack, and death. Even brief episodes of low blood pressure may adversely harm the already injured brain. Usually, deliberate increases in carbon dioxide are in direct contrast to the care of brain-injured patients. Even if oxygen is administered during the PAT, this does not prevent the potentially lethal effects of increased carbon dioxide on brain swelling. In addition, giving oxygen may depress the reflex to breathe and it may only be low oxygen to which some of the brainstem centers would respond. Purposely making the patient low in oxygen to test lower brainstem functioning would be unconscionable. The PAT does not test for the absence of all brainstem function and may cause injury to the brain.
Full and complete information must be provided to the family or surrogate so that they can decline the PAT. The NV statute does not require informing the family/surrogate or their consent for the PAT.
Reasons to repeal and replace UDDA
Life is a good. Death is the absence of life. There should be only one universally accepted medical standard for the determination of death since there is only one truly irreversible change in state that occurs when a living person changes to a true corpse.
After true death—whatever happens to the remains of the body, whether it involves putrefaction, embalming, or cremation, is describable in terms of disintegration, dissolution, and destruction of the organism that was formerly present. No one should be declared dead unless life has ceased and death has truly occurred.
Not only do some Catholics object to “brain death” but so do others of varied religious and ethnic backgrounds, such as Orthodox Jews, Japanese Shintoists, Native Americans, Buddhists, Muslims, and other Christians.
The ideal statute should protect the person from being declared dead when they are still alive. Wording the statute in the negative, which would set minimum criteria that must be satisfied before death is declared, can do this. This minimum must fulfill a change of state from alive to dead.
A model statute is: No one shall be declared dead unless the circulatory and respiratory systems and the entire brain have been destroyed. Such destruction shall be determined in accordance with universally accepted medical standards.
What can we do?
Write to the Uniform Law Commission and tell them that the UDDA needs to be repealed and replaced by “No one shall be declared dead unless respiratory and circulatory systems and the entire brain have been destroyed. Such destruction shall be determined in accord with universally accepted medical standards.” Full and complete information and the opportunity to decline or consent must be provided for being declared dead using neurological criteria.The Honorable Samuel Thumma, Chairman
Members of the Determination of Death Act Committee
Uniform Law Commission
111 N. Wabash Avenue, Suite 1010
Chicago, IL 60602
Communicate the same to your federal and state legislators.
Nguyen, Doyen and Eble, Joseph. March 12, 2021. Homilectic and Pastoral Review. https://www.hprweb.com/2021/03/brain-death-what-catholics-should-know/
Nguyen, Doyen. 2018. The New Definitions of Death for Organ Donation; A Multidisciplinary Analysis form the Perspective of Christian Ethics. Bern Switzerland. Peter Lang.
 Byrne, Paul A.; O'Reilly, Sean; Quay, Paul M and Salsich, Peter W. 1982/83 Brain Death – the Patient, the Physician, and Society. Gonzaga Law Review. 18(3):429-516.
 D. Alan Shewmon, Brain Death or Brain Dying? 2012. J. Child Neurology 27 (4), 5 (2012)
 Byrne Paul A.; O'Reilly, Sean; and Quay, Paul M. 1979. Brain Death-An Opposing Viewpoint. JAMA 242:1985-1990.
 The distinction between permanent and irreversible is used to differentiate between a patient e.g., whose circulatory arrest may be considered permanent if the decision has been made not to attempt resuscitation, even though it may be reversible if life support is administered.
 Byrne et al. JAMA 1979© Paul A. Byrne, M.D.
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