Guest Columnist Dr. Haas discusses neurological criteria for determining death

May 3, 2011

Moral theology is fundamentally a practical science.  It helps people make decisions in concrete circumstances so that they can accomplish good and avoid evil. When an issue has already been generally resolved by the teaching authority of the Church, debating contrary positions in a public forum rather than in academic venues can irresponsibly cause confusion in the minds of the faithful and unsettle consciences. E. Christian Brugger, professor of moral theology at St. John Vianney Seminary in Denver, has done precisely this regarding Church teaching on organ donation in comments posted on Zenit, the international Catholic news agency, and on the website of the Culture of Life Foundation.

Pope John Paul II gave Church approval to the act of organ donation, elevating it to the level of the papal magisterium in his 1995 encyclical “The Gospel of Life.” In that encyclical, he declared that “a particularly praiseworthy example of such gestures (of self-giving) is the donation of organs, performed in an ethically acceptable manner…” What is required for such donations to be ethical is that they be performed with the informed consent of the donor and that the donor be dead before any vital organs (such as the heart) are removed.

The Holy Father was quite aware that there had to be moral certitude that an individual was dead before the retrieval of organs. He also knew that the traditional means of determining death was to detect the cessation of breathing and heartbeat, or the “cardio-pulmonary criterion” for death. Yet medical advances had resulted in ventilators prolonging the lives of patients who had stopped breathing by forcing the continued oxygenation of blood until they could be revived. Some patients could never be revived, however, in some cases because the brain itself had ceased to function. The appearance of personal life continued because of the use of the ventilators and the continued suffusing of organs with oxygenated blood. Over time an additional criterion was developed for determining the fact that death had occurred: the total cessation of brain function or the “neurological criterion”.   

In light of these developments, Pope John Paul turned to the Pontifical Academy of Sciences for guidance on the determination of death. In 1985 the Academy responded to the Pope’s query by stating: “A person is dead when he has irreversibly lost all capacity to integrate and coordinate the physical and mental functions of the body. Death occurs when: a) The spontaneous cardiac and respiratory functions have definitively ceased; or b) If an irreversible cessation of every brain function is verified. From the debate it emerged that cerebral death is the true criterion of death, since the definitive arrest of the cardio-respiratory functions leads very quickly to cerebral death.”  

But John Paul II was still concerned about how quickly the organs could be removed for transplantation because he knew they would quickly deteriorate without oxygenated blood. And so he raised the question with the Academy again in 1989, acknowledging that “the success of such an intervention depends on the speed with which the organs are removed from the donor after his death.” The Academy responded once again that death can be determined when “there has been an irreversible cessation of all brain functions, even if cardiac and respiratory functions which would have ceased have been maintained artificially.”

In a major address to the Transplantation Society in 2000, the Pope accepted these findings and provided the practical, moral guidance that vital organs can be removed after the donor has been declared dead using either cardio-pulmonary criterion or the neurological criterion. “Here it can be said that the criterion adopted in more recent times for ascertaining the fact of death, namely the complete and irreversible cessation of all brain activity, if rigorously applied, does not seem to conflict with the essential elements of a sound anthropology. Therefore a health-worker professionally responsible for ascertaining death can use these criteria in each individual case as the basis for arriving at that degree of assurance in ethical judgment which moral teaching describes as ‘moral certainty’. This moral certainty is considered the necessary and sufficient basis for an ethically correct course of action” (Emphasis added).

Pope John Paul II was not presuming to settle every medical or philosophical question raised about the determination of death, and the teaching is not “irreformable” if further scientific evidence should require a reformulation of it. However, he was offering guidance “for an ethically correct course of action” for faithful Catholics. And Pope John Paul II has not been the only one accepting the legitimacy of the neurological criterion for determining death. Others have been the Pontifical Council “Cor Unum”, the Pontifical Academy for Life, the Pontifical Council for Healthcare Workers, particularly in its Charter for Health Care Workers, the Congregation for the Doctrine of the Faith in its acceptance of the Charter, the Pontifical Academy of Sciences, the Bioethics Center at the official Catholic university in Rome, Sacred Heart University, and the United States Catholic Conference.

Yet there are Catholics who refuse to accept Church teaching on this point, in particular Dr. Paul Byrne, a pediatrician from Ohio, and Dr. Alan Shewmon, a neurologist from UCLA. Now these individuals have been joined by E. Christian Brugger. Despite the fact that John Paul II said that the neurological criterion can provide “moral certainty” of death, Prof. Brugger has chosen to accept the position of the neurologist Alan Shewmon over against the findings of the American Academy of Neurology which issued new guidelines for “brain death” in 2010 and against the conclusions of the Pontifical Academy of Sciences which has now issued three statements accepting the neurological criterion as legitimate, the most recent in 2008. Brugger writes, “Shewmon's evidence...raises a reasonable doubt that excludes ‘moral certitude’ that ventilator-sustained brain dead bodies are corpses.”

What is the practical consequence of Brugger’s conclusion? The practical consequence is that one cannot morally receive a vital organ from someone declared dead using the “neurological criterion” — otherwise one runs the risk of cooperating in, or benefiting from, murder. On the basis of Brugger’s position, a faithful Catholic would have to make a decision refusing to give the “gift of life,” or receive it, after a determination of death of the donor using the neurological criterion. This position, which departs from the moral guidance provided by the Church, can lead to erroneous life and death decisions by those Catholics wanting to be faithful to the Church.  

A number of years ago a Catholic woman had read an essay by Dr. Byrne and Dr. Shewmon who insisted that the neurological criterion could not be used to determine death. On the basis of the essay, the woman refused to receive a transplant. Dismayed, her surgeon sent the article to the Pope asking if it was indeed Catholic teaching. He received a response dated September 14, 2001, from then Bishop, now Cardinal, Elio Sgreccia, the president of the Pontifical Academy for Life. “The Secretariat of State of His Holiness Pope John Paul II has asked me to respond to your letter of April 7, 2001. In it you express your perplexity and conscientious concern after reading the article...I can confirm that this article does not reflect the official doctrine of the Church. The Church’s thinking continues to be what was expressed in the Holy Father’s discourse of August 29, 2000...I would like to take this opportunity to thank you on behalf of the Holy Father both for the confidence and appreciation you expressed for his Magisterium.”  

A faithful Catholic reading Brugger’s remarks may well conclude that he or she should not receive an organ transplant fearing the commission of sin — and a life may be lost that could legitimately have been saved and extended.

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