“Brain-dead” and “Death” is a Legal Fiction

UPDATE 2017.04.15:

Original Article-

Piercing the Veil: The Limits of Brain Death as a Legal Fiction

Death as a Legal Fiction

 

Why ‘Brain Death’ Is Contested Ground

Jeffrey P. Bishop  (reposted for educational purposes)

Brain death illustration
Illustration by Scott Laumann

ON DECEMBER 9, 2013, a thirteen-year-old African American girl named Jahi McMath entered a hospital for routine surgery. She was to have a tonsillectomy, a uvulopalatopharyngoplasty, and a submucosal resection of the inferior turbinates. Jahi was having difficulty with obstructive sleep apnea, and the surgery would open her airway so air could flow more freely, allowing her to sleep better at night. The procedure itself seemed to be a success—at least in the immediate postoperative period. Jahi had awoken from surgery, and she was communicative, speaking to nurses and her family. Jahi was taken to the intensive care unit as a precaution, since she had experienced more blood loss than would have been expected.

Within a few hours, Jahi began to bleed profusely from her surgical sites, resulting in the aspiration of blood into her lungs. In addition, she lost so much blood that her blood pressure fell to dangerously low levels. These two factors resulted in hypo-oxygenation of her blood and decreased perfusion of her brain. As a result, she sustained serious anoxic brain injury (because there was not enough oxygenated blood reaching her brain). On December 12, 2013, Jahi was pronounced dead by brain-death criteria—her whole brain was dead, including the brain-stem, which controls the automaticity of breathing.

In the midst of this tragedy, Jahi’s family was grieving, lost, hurting, and bewildered. And their already difficult situation was made worse by several bureaucratic procedures that kicked in even before Jahi would have been declared brain dead, including a request that Jahi’s family donate her organs for transplantation. Every hospital in the United States now has a policy in place requiring that every death in the hospital must be reported to the local organ procurement organization (OPO). Moreover, a hospital is expected to follow a set of procedures and guidelines for best practices in declaring patients brain dead for the purposes of organ procurement.1 The Health Resources and Services Administration (HRSA),2 the Centers for Medicare and Medicaid Services (CMS), and the Joint Commission (formerly the Joint Commission on Accreditation of Healthcare Organizations) together monitor adherence to these guidelines. A hospital can receive a “red flag” for not following the guidelines, which can threaten accreditation and Medicare/Medicaid eligibility.3After Jahi’s family refused to donate her organs, a series of other procedures were deployed to turn off the ventilator machine breathing for Jahi. Jahi was legally dead, and since insurers don’t like to pay for health care for dead people, the hospital notified the family that they were going to turn the ventilator off, allowing Jahi’s heart to stop beating.

The family secured a lawyer, and several community support networks were mobilized. Given the African American community’s historically troubled relationship with the medical system, several commentators have speculated that there might be racial overtones to the decision to pronounce Jahi dead by brain-death criteria.4 As seen recently in Ferguson, the subtleties of structural racism manifest themselves with a vengeance in moments of crisis. In addition, there were reports that several right-to-life groups had gotten involved, and some have accused the lawyer of manipulating the family.

The family claimed that Jahi was still alive; her heart was beating, her blood was circulating, and she continued to produce urine and stool. The parents took the hospital to court, asking the court to intervene to prevent the hospital from removing Jahi from the ventilator. The court ordered an independent doctor—Paul Graham Fisher, division chief of child neurology at Stanford University School of Medicine—to do an examination of Jahi. Fisher confirmed the clinical diagnosis of brain death, and also performed an EEG, which showed no brain activity.5 The court ruled that the doctors could remove Jahi from the ventilator, but the family appealed the decision, asking that they be allowed to make arrangements with other hospital facilities. They requested that the hospital place a feeding tube and a tracheostomy tube, as these are easier to manage in the care of patients who will need long-term mechanical ventilation. Moreover, most skilled nursing facilities require such measures on a ventilated patient, before they are willing to admit the patient.

The hospital claimed to be following its protocols for brain death; for brain-dead individuals whose families have not agreed to have their organs donated, the procedure is to turn off the machines. After initially refusing to place the feeding and tracheostomy tubes, the hospital agreed to place them a few days later, as a means to expedite Jahi’s discharge from the hospital. Jahi had a feeding tube and the tracheostomy tube placed on January 5. Meanwhile, on January 3, 2014, the Alameda County coroner released a death certificate stating that Jahi had died on December 12, 2013. Per California state law, all bodies of deceased patients are released to the local county authority before being released to the family (usually the family designates a funeral operator to receive the body). On January 6, Jahi’s body was released to the Alameda County coroner’s office, while it was still on a ventilator and while her heart was still beating. The coroner’s office released Jahi’s ventilated and living body to her mother, who had arranged for her to be transferred to a long-term care facility in New Jersey. New Jersey’s statute on brain death, passed in 2000, permits religious exemptions to whole-brain-death diagnosis. The state, therefore, has facilities that care for patients who show signs of total brain failure.

The problem illustrated by the Jahi McMath case is not that people are generally uneducated about brain death, or that her parents were ignorant, as has been suggested by most commentators. The problem is not (as some have also suggested) that right-wing conservative groups have manipulated Jahi’s parents. The problem is not a failure in cultural communication (though there is no denying that race, religion, and culture are important in understanding this case). In my view, the problem goes deeper: it is clear that Jahi McMath’s family had no way to understand the concept of “brain death,” because it is not an intuitive idea. It is not that the words “brain” and “death” are not understood in plain English, but rather that the concept “brain death” just does not make sense to Jahi’s family (and would not make sense to many families faced with this same situation). On the surface, “brain death” appears to be a very stable concept, but, in practice, we see it frays at the edges. And it seems to me that the recently implemented organ procurement measures bring those frayed edges into sharp relief, as Jahi’s case suggests.

This has become a rallying case precisely because it illustrates several oddities in medical practice. For example, Jahi receives medical care while dead under the law. This leads many to ask how Jahi can be dead and yet living. Is she dead when the machines are turned off, or when her heart stops beating? In fact, it is not uncommon for a brain-dead person’s heart to beat for an hour or so, and up to several hours in a neonate patient, after the machines are turned off. Would it be acceptable to send her to the morgue while her heart still beats? Or would one send her to the crematorium, or be allowed to bury her, while her heart continues to beat? How can the county coroner’s office issue a death certificate on January 3, 2014, stating that Jahi has been dead since December 13, 2013, only to receive her body on January 6, 2014, and release it to her parents so they can take her to another facility to receive medical care? All of these questions make clear that “brain death” is a legal fiction.

It seems entirely reasonable to me that Jahi’s family would have had no way to think about her as a person in which her body could be alive but in which she was at the same time dead.

What we see in this and other cases like it are two different modes of thinking about the body. The problem is how we think about bodies, and what can be done for and to bodies, and for what purposes we can do those things for and to bodies. It seems entirely reasonable to me that Jahi’s family would have had no way to think about her as a person in which her body could be alive but in which she was at the same time dead. Put into the language of Martin Buber, Jahi’s mother had an I-Thou relationship with her daughter’s body while the doctors had an I-It relationship with Jahi’s corpse. I want to suggest that what we have here is a failure of our larger concepts around death.

Many philosophers have noted the impossibility of conceptualizing death, especially one’s own death. For Hegel, one’s own death is a thought or concept that cannot really be imagined by oneself. For Heidegger, while time can be experienced, but not fully represented, death can be represented to oneself in the death of the other, but my death—death in the first person—cannot be experienced by me. As Robert Jenson puts it, “The only images I seem able to summon to accompany the proposition ‘I will die’ are in fact of some continuation of consciousness in death,” a consciousness that is no longer a possibility when I am dead.6 Jenson further argues:

The sheer end of someone is easy to think in the third person: first there is Jones and then there is only an erstwhile organism, a corpse, which is not Jones. The corpse provides the Vorstellung [image of death]: to envision Jones dead I need only view or imagine the corpse. But in the first person—or indeed sometimes in the second—the first “only” makes a twist. From my point of view, my corpse is not, as in the third person, the fact of the person’s—my—non-existence. What for me would be the fact of my non-existence would be the absence of my consciousness.7

But there is another point: we doctors are practiced in terms of thinking about bodies as “Its” and not as “Thous.” That is to say, we are practiced at thinking of the body as an object; but for families, that transition of a body from a Thou to an It is not entirely obvious or clear, especially when one engages the other as a Thou, as a second person. Put differently yet again, what we find is a clash between the way Jahi’s family thinks of her and her body and the procedures that have grown up around the corpse—a clash of ontologies. Because medicine’s ontology of the body is quite distinct from our religious and cultural modes of thinking about the body, medicine constantly fails to address deeper questions of human meaning about the body.
TO UNDERSTAND BETTER how we have gotten to this point, I need to explore a little of the philosophical history of medicine. The historical shift in the way that we think about the living body began about two hundred years ago. This shift was not merely a shift in our mores, but in our thinking about bodies, about the ontology of the body; that is to say, our understanding of metaphysics shifted. In The Anticipatory Corpse, I argued that the dominant stance of medicine toward the living body has been shaped by its understanding of the dead body—the corpse.8 The cadaver came to shape the way doctors think about the living body, and this metaphysical shift transformed how we think about and engage the dying body, as well as the living body. As a result, we in medicine think about bodies as dead matter in motion, ordered to function but not to purpose, and for this reason we repeatedly find ourselves in health care practices that come across as inhumane.

With the rise of modern anatomic practices in the eighteenth century, the dead body became epistemologically normative; that is to say, the dead body became the measure against which the living body would be gauged. By the mid-fifteenth century, the law in most of Europe allowed for anatomic dissection; the church had given its blessing to dissection around the same time. Michel Foucault argues that the new interest in anatomy in the late eighteenth century was about the changing relationship of the physician to the dead body. In the late eighteenth century, medical students all over Europe would wander the streets of London or Edinburgh or Paris taking note of the sick among the poor; and after the afflicted had died, the students would proceed to the cemetery to dig up the dead body.

This practice of digging up and dissecting corpses became commonplace because the professors of medicine believed that the dead body contained a kind of truth that had to be seen before the body began to decay. The dead body spoke the truth about anatomy and disease; and this new truth brought to light by the dissector’s scalpel would reveal itself in the static and stable ground of the dead body. After all, the living body—the body in motion—is always changing, and it is difficult to build knowledge on such shifting ground. The dead body is static and can serve as “ground zero” for our knowledge. The dead body became an ideal type; it could be mapped onto the bodies of the living.

That same ideal type of the dead body shaped not only anatomical thinking, but also the physiological thinking of Xavier Bichat and Claude Bernard. In the early part of the nineteenth century, Bichat wrote that “life consists in the sum of the functions by which death is resisted.”9 Death is the ground of life; death is primordial. Bernard, the great physiologist, held the same conceptualization. Commenting on the importance of vivisection, Bernard stated that in order “to learn how man and animals live, we cannot avoid seeing great numbers of them die, because the mechanisms of life can be unveiled and proved only by knowledge of the mechanism of death.”10 Bernard concluded that the terms “life and death have no objective reality in medicine and physiology.”11

By the early nineteenth century, the current view of the living body as nothing more than dead matter in motion had become the norm. In such a conception of bodily existence, one cannot find the ultimate causes of life in physiology. Moreover, if one seeks the first cause of life, one would be guilty of vitalism. The body is perceived to have no first cause and no ultimate purpose.12 For the physiologists, there is only function; life is when the blood goes round and round. This continues to be true, even in modern physiology. The standard textbook of physiology today notes that “the human being is actually an automaton.”13 Life has no fundamental ontology, according to the physiologists.

Yet it is not quite right to say that life has no ontology whatsoever; rather, the fundamental ontology of the body was that of dead matter. What makes the body alive are the forces that put matter into motion. The observable body is an efficient mechanism. Life is a series of causes, within which forces lead to effects: a cog turns a wheel, which turns another cog, and so forth and so on. But in the case of the body, this movement is ordered to no particular purpose. Medicine had become about how the failing cogs and wheels can be manipulated to keep the body in motion. As E. A. Burtt noted in 1925, with the rise of the modern natural sciences, humankind with all of her “purposes, feelings, and secondary qualities was shoved apart as an unimportant spectator and semi-real effect” of the great mechanistic drama that is the world and the body.14
BRAIN DEATH IS ONE example of the way these meta physical ideas and conceptualizations are expressed in current medical practices and definitions. Several thinkers have pointed out that brain death came to be constructed by social forces for the express purpose of organ transplantation.15 Prior to the creation of the concept of brain death in 1968, patients that may have been brain dead were referred to as “living cadavers”—a term that originated in the anatomy lab—or as “heart-lung preparations.”16 A “heart-lung preparation” is a lab animal that has been prepped for experimentation.17 Thus, the names and values of the anatomy and physiology lab moved directly into the clinical arena.18

These ontological ideas, grounded in the dead body, have moved into our debates about brain death and into our understanding of transplantation, in which the living organs of the dead are taken to replace the dead organs of the living. Inside medicine’s normative epistemology of the dead body, we find medicine’s metaphysics to be one of efficient causation, the efficiency of the machine of the body. And it is medicine’s ontology, its understanding of the body as an object, that has led to the absurdities in practice—like a patient’s being pronounced dead, but whose body is being kept alive. Moreover, within the modern medical frame, not only is the body primarily thought of as a complicated mechanism, it is also situated within a social order that permits the removal of organs to be utilized by others in society. A whole series of social apparatuses and procedures is deployed, created by the HRSA, the CMS, the Joint Commission, the OPO, the hospital, and the law, to maximize organ procurement. In fact, doctors are no longer allowed to request organ donation from the families of the deceased, because they are not considered “effective requesters.” Instead, the OPO nurses, who have undergone “effective requester” training, initiate the conversation around donation, as they did in Jahi’s case.

The procedural apparatus of the hospital compels us to think of ourselves and our loved ones as “Its”; can there be any surprise when families inevitably resist?

The implicit moral ordering of the organ procurement apparatus is that Jahi’s body ought to be aimed toward its usefulness for others in need of organs, even if we must violate something sacred about Jahi and her family’s understanding of the meaning and purpose of her body. In other words, her body becomes an “It” to be utilized for other social good. If her body cannot be ordered to social good, the machines ought to be turned off; to do otherwise is to be wasteful. Meanwhile, though, her family is offended by this system that transforms Jahi’s body into an It.

Martin Buber notes that there can be no “I” that is not always already a relationship. There is no “I” that is not already an “I-Thou.” For Buber, the two primary words that constitute the “I” are the relationships between I-Thou and I-It. Buber states:

If Thou is said, the I of the combination I-Thou is said along with it.
If It is said, the I of the combination I-It is said along with it.
The primary word I-Thou can only be spoken with the whole being.
The primary word I-It can never be spoken with the whole being.
There is no I taken in itself, but only the I of the primary word I-Thou and the I of the primary word I-It.19

Put differently, I am constituted by all of my I-Thou relationships; I am constituted interpersonally.

Jahi and her family members were in I-Thou relationships. Jahi’s mother’s “I,” in speaking, “I do not want to donate my daughter’s organs,” could not conceive the “It” of Jahi’s body, because she held a different understanding of ontology, in which her daughter’s body participated in the constitution of her own “I,” her own being. In this sense, when her mother contemplates Jahi’s death, she contemplates the death of a Thou, of a second person, and this Thou already contained the combination I-Thou. When Jahi’s Thou dies, part of her mother’s I dies, because as Buber notes, in saying “I,” she always has the I-Thou of her relationship with Jahi entwined in her “I.” Jahi’s mother, like all of us, is interpersonally constituted.

The social apparatus of the OPO and the hospital can easily disassociate itself from a body that is an “It”; indeed, the very concept of death, the concept of a dead body, and the concept of brain death are all derived fundamentally from the It of the corpse. In this view, it is so easy for Jahi’s body to be represented as the death of a third person, but not to her mother. Her mother’s whole being is caught up in her relationship to Jahi. The procedural apparatus of the hospital compels us to think of ourselves and our loved ones as “Its”; can there be any surprise when families inevitably resist the procedures of the apparatus?

It seems clear to me that, for her family, Jahi’s body can never be a mere mechanism ordered to the functioning of other bodies—in this case, eight other bodies—through transplantation. Jahi’s family members are not ignorant, nor are they selfish. For most of us, the world and the body carry meaning and purpose, even when, in our more rationalistic and objective stance, we hold the “Itness” of the world to be fundamentally meaningless. For most of us, the relatedness of embodied subjects to one another is that of I-Thou. In the way that we live our lives, the meaning and purpose of the body is the truth of the body. Whatever Jahi or her family understood the ultimate purpose of her body to be, it was not a mere mechanism held in reserve for another body or bodies. Meaning and mechanism are of a whole cloth for most of us.

So, we are stuck. Whereas the body had to be gutted of any meaning and purpose in order for modern science to get at the truth of the body, for religious and cultural modes of being in the world, the meaning and purpose of the body is the truth of the body. What is lost in Jahi’s life is not just the failed mechanism of her brain, as if it is devoid of meaning. A family cannot simply give up the Thou of Jahi, nor can the family abandon Jahi to some utilitarian calculus ordered for social good (as defined by the state). Rather, what is lost is the meaning and purpose of Jahi’s body, which co-constitutes the meanings and purposes of her family members’ lives. In other words, to think the death of a loved one—of a Thou—is to think the death of the self in one sense. Our thinking about the meaning and purpose of the body is the thinking of a relating self. For her family, Jahi’s body can never really be the It of the corpse, and attempts to convince her mother to think of Jahi this way come across as cold, at the very least, and violent, at the very worst. Despite the fact that the medical apparatus of organ procurement compels Jahi’s family to think otherwise—despite the fact that it compels us all to think otherwise—the I-Thou of the relationship between Jahi’s mother and her daughter exceeds our concepts of the corpse.
DEATH IS, OF COURSE, a question of metaphysics, even while the medical establishment wants to avoid getting into arcane philosophical discussions. In 1981, the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research claimed to be avoiding arcane philosophical debates, but then enacted its own metaphysical definition of death, which then became ensconced in the law in the Uniform Definition of Death Act (UDDA). The case of Jahi McMath shows us that this definition of death enacts certain metaphysical assumptions that are at odds with our religious and cultural modes of thinking about death.

Death is a reality. It is a metaphysical reality, in that it refers to a state of affairs of a body that was once alive. Discerning that state of affairs is very easy, to be honest. We know that a body is dead when it begins to decay. The problem has always been that our social need to discern when a body is dead compels us to explore more refined ways of discerning when the point of no return has arrived. Brain death as a concept began to be promulgated in 1968, culminating in the UDDA of 1981.20 Transplantation technology no doubt assisted in compelling society to accept the fiction of brain death. As H. Tristram Engelhardt noted years ago, social realities have always compelled societies to define death; after all, we need to know when it is time to bury a body, when the person’s will can be executed, and when we no longer owe the body the same respect as all other bodies in a society.21 In other words, when can we treat this body differently than others?

For these reasons, brain death as a concept is under review. In fact, the President’s Council on Bioethics in 2008 said that we should move away from brain death and that we should instead speak of total brain failure.22 This move would help clarify what is actually happening in the body. Franklin Miller and Robert Truog have suggested that we should remove brain death from the lexicon of medical definitions and concepts, allowing families to decide when a person deserves care and when a person’s body can be used for different social reasons.23 Such a move would allow Jahi McMath’s family (and others like hers) to continue to care for her and would also allow other families who see that their loved one is not going to return to a fully functional state to turn the machines off or to permit transplantation. Miller and Truog also suggest that we do away with the dead donor rule and make it clear to families that brain death is a legal fiction, but that the term still has uses as a legal fiction. I prefer, instead, to use the language of total brain failure. Once a patient is in total brain failure, we can say that we have arrived at a morally sufficient point in the life of the person that organ procurement is permitted.

Yet, neither Miller and Truog’s solution nor mine would escape the cold and harsh realities of the social and political apparatus that is medicine and the modern organ procurement enterprise. In fact, both of our solutions really only tell us when the social and political apparatus can legitimately be deployed. Jahi’s family will find no relief from the apparatus even if we use terms like total brain failure, because the apparatus will always grate harshly against our experiences of persons we love. After all, persons are both biological and interpersonal constructions. The social apparatus asks us to ignore the interpersonal dimension. It asserts that, because the brain is biologically dead and the other organs are biologically living, these biologically living parts ought to be used in transplantation, even if the apparatus asserts that it does not explicitly suggest that organ donation is the ethically correct way forward. It is because the social apparatus in place to declare death is intimately tied to the social apparatus of organ procurement that Jahi McMath’s family found itself in a battle to continue care for Jahi. The social apparatus that is organ procurement and that animates the laws governing our legal definitions of death violate our religious and cultural modes of thinking about persons.

The conceit of modern society, and the medicine and law that it produces, is that all of our problems have technical or bureaucratic solutions. All of our drives to define death biologically for socially expedient reasons transgress a reality quite different from the reality of bodies, all the while claiming that they are concerned with the biological fact of bodies. It is within this technocratic context, and because of it, that Jahi’s family suffered so greatly after her brain injury. All of our technocratic apparatuses sustained by the power of medicine and the law cannot do justice to the insoluble mystery of persons, for as persons we always exceed our biological and interpersonal conditions, even while we are constituted by those conditions.

Notes

  1. Every major hospital in the United States has a business relationship with an OPO.
  2. The HRSA is part of the United States Department of Health and Human Services, under the secretary of HHS.
  3. The governing procedures require that the OPO be called on every death in the hospital and on every patient who meets a set of criteria, no matter if the patient is legally dead or not. In fact, any patient with a brain injury who is placed on a ventilator triggers a call to the OPO.
  4. See Rhea Boyd, “Dying While Black—The Case of Jahi McMath,” SFGate, January 31, 2014, www.sfgate.com/opinion/article/Dying-while-black-the-case-of-Jahi-McMath-5194176.php. See also Gloria Goodale, “Jahi McMath: Where the Law Stands When Hospitals and Families Disagree,” The Christian Science Monitor, December 24, 2013, www.csmonitor.com/USA/Justice/2013/1224/Jahi-McMath-where-the-law-stands-when-hospitals-and-families-disagree.
  5. It should be noted that EEGs are not thought to be very good at diagnosing brain death. In fact, all of our technological means of determining brain death are merely indirect measures of brain activity and have both false positive and false negative rates.
  6. Robert W. Jenson, On Thinking the Human: Resolutions of Difficult Notions (Wm. B. Eerdmans, 2003), 2.
  7. Ibid.
  8. Jeffrey P. Bishop, The Anticipatory Corpse: Medicine, Power and the Care of the Dying (University of Notre Dame Press, 2011). In the book I ask: What would we have to believe about the body such that we in medicine can come to treat bodies in just the way that we do?
  9. Marie-François Xavier Bichat, Physiological Researches on Life and Death, trans. F. Gold, Significant Contributions to the History of Psychology, Physiological Psychology Series (University Publications of America, 1978; reprint of edition published by Richardson and Lord, 1827), 9–10; Bishop, The Anticipatory Corpse, 67.
  10. Claude Bernard, An Introduction to the Study of Experimental Medicine, trans. Henry Copley Greene (Dover Publications, 1957), 99; Bishop, The Anticipatory Corpse, 73.
  11. Bernard, Study of Experimental Medicine, 67; Bishop, The Anticipatory Corpse, 76.
  12. See Gerald P. McKenny’s wonderful work on medicine as a Baconian project, To Relieve the Human Condition: Bioethics, Technology, and the Body (State University of New York Press, 1997).
  13. Bishop, The Anticipatory Corpse, 166; Arthur C. Guyton and John E. Hall, Textbook of Medical Physiology, 11th ed. (W. B. Saunders, 2006), 3.
  14. Edwin Arthur Burtt, The Metaphysical Foundations of Modern Physical Science: A Historical and Critical Essay(1925; Humanity Books, 1999), 104.
  15. Margaret Lock, Twice Dead: Organ Transplants and the Reinvention of Death (University of California Press, 2001); Mita Giacomini, “A Change of Heart and a Change of Mind? Technology and the Redefinition of Death in 1968,” Social Science and Medicine 44, no. 10 (1997): 1465–1482; and Bishop, The Anticipatory Corpse.
  16. Law and Ethics of Transplantation, ed. Gordon Wolstenholme and Maeve O’Connor, CIBA Foundation Blueprint (J A Churchill, 1966).
  17. The animal’s heart would have been cannulated, an arterial line would have been placed, the animal would have been put to sleep and ventilated, and a central intravenous line placed into its heart, all so that medical students could physiologically manipulate the animal, giving it drugs and watching how blood pressure, heart rate, or oxygen consumption changed.
  18. I provide a more detailed account of this history in Bishop, The Anticipatory Corpse, 144–167. See also Giacomini, “A Change of Heart and a Change of Mind?”; and Lock, Twice Dead.
  19. Martin Buber, I and Thou, trans. Ronald Gregor Smith (Collier Books, 1958), 4.
  20. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Defining Death: Medical, Legal, and Ethical Issues in the Determination of Death (US Government Printing Office, 1981). In The Anticipatory Corpse, I show how the commission, while attempting to escape metaphysical claims, ends up deploying them.
  21. See H. Tristram Engelhardt, Jr., “Reexamining the Definition of Death,” in Death: Beyond Whole-Brain Criteria, ed. Richard Zaner (Kluwer Academic Publishers, 1988), 91–98.
  22. Controversies in the Determination of Death: A White Paper by the President’s Council on Bioethics (US Government Printing Office, 2008).
  23. See Franklin G. Miller and Robert D. Truog, Death, Dying, and Organ Transplantation: Reconstructing Medical Ethics at the End of Life (Oxford University Press, 2012).

Jeffrey P. Bishop is Professor of Philosophy and holds the Tenet Chair of Health Care Ethics at Saint Louis University, where he is also director of the Albert Gnaegi Center for Health Care Ethics. He is the author of The Anticipatory Corpse: Medicine, Power, and the Care of the Dying (University of Notre Dame Press, 2011).

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