Brain Death and the Harvesting of Human Organs

by Patrick Laurence 

Body Part sale

Introduction: It’s true today that everything has a value on the market, but does that mean we can easily take the value of our organs? If you’ve donated your organs, doesn’t it make some tension over whether you are dead when they take those organs? The Bellarmine Forum is pleased to welcome Patrick Laurence’s analysis of these and may more questions.

The Uniform Determination of Death Act (“the UDDA”) defines death, in part, as the “irreversible cessation of all functions of the entire brain, including the brain stem.”  The creation of this model legislation, which has been adopted in nearly all fifty states, constituted a significant change from traditional medical and legal standards for the determination of death, which typically required the cessation of all respiratory and cardiovascular activity.  One profound consequence of the “brain death” criterion is that it permits the harvesting of organs from individuals who are still breathing (through assisted respiration) and who still have beating hearts.

There is some debate among ethicists and medical doctors as to whether the transplantation of vital organs from brain dead individuals is a morally acceptable practice.  On the one hand, if the patient is truly dead, the harvesting of organs from that individual represents a moral, beneficial and possibly life-saving procedure for the organs’ recipients.  On the other hand, if the patient is not dead, the harvesting of organs leads unquestionably to that individual’s death, and is therefore, unwittingly or not, an act of killing.  In other words, the practice is either life-giving or life-taking.  The alternatives cannot be more diametrically opposed.

While some maintain that the Catholic Church officially endorses use of the brain death criterion, in reality, the Catholic Church has made no definitive statement on the issue.  No catechism, encyclical or other official church document blesses the practice.  To be sure, Pope John Paul II made some cautiously supportive statements during an address to a conference of anesthesiologists.  Furthermore, the Pontifical Academy of Sciences, a non-magisterial body, has given its unequivocal endorsement of the brain death criterion on multiple occasions.  But even Pope John Paul II did not consider the matter a closed question, as his actions would subsequently reveal.  Indeed, his successor, Pope Benedict XVI, seemed less sanguine about the practice, stating that “where certainty has not been attained the principle of precaution must prevail.”

Traditionally, death was understood to be the separation of the soul from the body.  The Epistle of Saint James declares that “the body without the spirit is dead.”  Saint Augustine, in his famous work, The City of God, articulated this understanding:  “As regards bodily death, that is, the separation of the soul from the body, it is good unto none while it is being endured by those whom we say are in the article of death.”  In more recent times, Pope John Paul II reiterated this definition:  “[I]t is helpful to recall that the death of the person is a single event, consisting in the total disintegration of that unitary and integrated whole that is the personal self. It results from the separation of the life principle (or soul) from the corporal reality of the person.”

To define death as the separation of the body from the soul does not necessarily presuppose a belief in Christian doctrine.  The existence of the soul is not, properly speaking, a matter of divine revelation and can be known through the exercise of man’s natural reason (though, as the foregoing passage from Saint James demonstrates, its existence is confirmed by revelation).  The pre-Christian philosopher Aristotle, for example, recognized the existence of the soul and defined it as “the first grade of actuality of a natural body having life potentially in it.”  What is more, Aristotle did not reason to the existence of a material soul but an immaterial one.  Hence, he affirmed “the rightness of the view that the soul cannot be without a body, while it cannot be a body; it is not a body but something relative to the body.

Because the soul is an immaterial reality, the separation of the soul from the body cannot be perceived directly by the senses, and therefore the occurrence of death, as such, is not a sensible event.  There are, however, certain sensible biological signs that inevitably result when the soul has departed from the body.  To quote Pope John Paul II:

The death of the person, understood in this primary sense, is an event which no scientific technique or empirical method can identify directly.  Yet human experience shows that once death occurs certain biological signs inevitably follow, which medicine has learnt to recognize with increasing precision. In this sense, the criteria for ascertaining death used by medicine today should not be understood as the technical-scientific determination of the exact moment of a person’s death, but as a scientifically secure means of identifying the biologic signs that a person has indeed died.

Though the civil law may not speak of a “soul”, the reality is that the various legal standards utilized for the determination of death, including the UDDA, are merely attempts to identify biological signs from which we can infer with moral certainty that death has occurred; that is, that the individual’s soul has separated from his or her body.

Around the middle of the twentieth century, medical doctors began to question the traditional criteria for declaring death due to the advent of artificial life support mechanisms.  In 1968, the Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death proposed irreversible coma, that is, brain death, as a new criterion for death.  The change, according to the Committee, was prompted by two phenomena:  First, advances in medicine allowing brain damaged patients to survive on cardiac life support, and second, so-called “obsolete” criteria for the determination of death, coupled with the need for organs for transplant.  The “Harvard criteria” were published the same year in the Journal of the American Medical Association and were eventually instrumental in the enactment of the UDDA.

.           In 1957, during to an address to a conference of anesthesiologists, Pope Pius XII was asked the following question:  “When the blood circulation and the life of a patient who is deeply unconscious because of a central paralysis are maintained only through artificial respiration, and no improvement is noted after a few days, at what time does the Catholic Church consider the patient ‘dead,’ or when must he be declared dead according to natural law (questions de facto and de jure)?”.  The Pontiff responded, in part, as follows:

In case of insoluble doubt, one can resort to presumptions of law and of fact. In general, it will be necessary to presume that life remains, because here a fundamental right received from the Creator is involved, and it is necessary to prove with certainty that it has been lost … Considerations of a general nature allow us to believe that human life continues for as long as its vital functions–distinguished from the simple life of organs–manifest themselves spontaneously or even with the help of artificial processes.

In 1976, a working group of theologians, doctors, and priests and religious convened for several days under the auspices of the Pontifical Council Cor Unum for Human and Christian Development. In its published findings, the Council observed that because “families are showing increased reticence in the matter of giving permission for the removal of organs for transplant … certain highly authoritative medical groups have requested the Church to make an official declaration on the validity or non-validity of taking cerebral death, duly established, as the ‘moment of death’ of the human being. The Working Group feels that it is for a higher authority than itself to make such a declaration officially, but has agreed to call attention, by means of this report, to the need for making it.”

In 1985, the Pontifical Academy of Sciences took up the issue of brain death at the request of Pope John Paul II.  At the conclusion of its deliberations, the Academy observed that “cerebral death is the true criterion of death.”  The Academy issued another statement in 1989 in which it concluded that death occurs when “there has been an irreversible cessation of all brains functions, even if cardiac and respiratory functions which would have ceased have been maintained artificially.”  The Academy, it should be noted, is comprised of Catholics and non-Catholics and is not an organ of the Magisterium.

In 2000, Pope John Paul II spoke about some of these end-of-life issues in his Address to the 18th International Congress of the Transplantation Society.  The Pope, speaking in English, first asked, “When can a person be considered dead with complete certainty?”  He then acknowledged the evolving medical answers that have been proposed in response to this question over the last several decades:

It is a well-known fact that for some time certain scientific approaches to ascertaining death have shifted the emphasis from the traditional cardio-respiratory signs to the so-called neurological criterion. Specifically, this consists in establishing, according to clearly determined parameters commonly held by the international scientific community, the complete and irreversible cessation of all brain activity (in the cerebrum, cerebellum, and brain stem). This is then considered the sign that the individual organism has lost its integrative capacity.

Before evaluating the merits of this development, the Pope issued a caveat:

[W]ith regard to the parameters used today for ascertaining death – when the encephalic signs or the more traditional cardio-respiratory signs – the Church does not make technical decisions. She limits herself to the Gospel duty of comparing the data offered by medical science with the Christian understanding of the unity of the person, bringing out the similarities and possible conflicts capable of endangering respect for human dignity.

The Pope then issued a somewhat non-committal statement regarding using brain death as a means for determining death:

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 in conflict with the essential elements of sound anthropology. Therefore a health-worker professionally responsible for ascertaining death can use these criteria in each individual case as a 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. Only where such certainty exists, and where informed consent has already been given by the donor or the donor’s legitimate representatives, is it morally right to initiate the technical procedures required for the removal of organs for transplant.

Despite the Pope’s cautiously supportive comments, many Catholic bio-ethicists, doctors, and even bishops believed the issue has not been resolved in favor of brain death.  Bishop Fabian Bruskewitz, for example, together with several well-respected physicians and other bishops, authored a document expressing the belief “that the Pope has been misinformed about ‘clearly determined parameters, commonly held by the international scientific community.’ In fact, no such clearly determined parameters exist.”

Indeed, even Pope John Paul II did not consider the moral legitimacy of the brain death criterion a closed question.  In February 2005, the Pope asked the Pontifical Academy of Sciences to re-examine the issue.  In a surprising development, the Academy’s study group concluded that “there is overwhelming medical and scientific evidence that the complete and irreversible cessation of all brain activity (in the cerebrum, cerebellum, and brain stem) is not proof of death….A diagnosis of death by neurological criteria alone is theory, not scientific fact. It is not sufficient to overcome the presumption of life.”  The conclusion of the study group proved to be a shock to Vatican officials who continued to support the use of brain death.  Bishop Marcelo Sanchez Sorondo, chancellor of the Pontifical Academy of Sciences, eventually prevented the proceedings from being published.

In 2006, the Pontifical Academy of Sciences met again to consider the issue of brain death. Consistent with its prior findings, the Academy issued the following statement:

Just as it was difficult for common sense to accept, at the time of Copernicus and Galileo, that the earth was not stationary, so it is sometimes difficult now for people to accept that a body with a pumping heart and a pulse is “dead” and thus a corpse; “heart-beating death” appears to defy our common sense perceptions…. Most of the arguments against brain death are not sustainable and are incorrect diversions when scrutinized from a neurological perspective…the relatives of brain-dead individuals should be told that their relative has died rather than that he is “brain-dead,” with the accompanying explanation that the support systems produce only an appearance of life. Equally, the terms “life-support” and “treatment” should not be employed because in reality support systems are being provided to a corpse.

Thereafter, at the international congress “A Gift for Life. Considerations on Organ Donation”, Pope Benedict XVI affirmed the meritorious nature of organ donation. He then condemned abuses in the organ transplant industry and referred specifically to the debate on brain death:

It is helpful to remember, however, that the individual vital organs cannot be extracted except ex cadavere, which, moreover, possesses its own dignity that must be respected. 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.

Interestingly, the Pope’s comments were received favorably by both proponents and opponents of the brain death criterion.  This reaction perhaps underscores the general nature of the Pope’s statements and differing opinions as to whether or not the requisite certainty has, in fact, been reached in the scientific community.

In sum, the Catholic Church recognizes that the donation of organs can be a positive moral good.  Nevertheless, the donation of organs from both living and non-living donors must be guided by principles of the moral law.  One of these moral principles dictates that vital organs which occur singly in a person can only be removed after death.  In determining when a person has died, the Church does not offer any technical solutions.  Generally, in cases where there is doubt, that is, where there is the absence of moral certainty, there should be a presumption of life.  There has been some indication that brain death, understood to be the complete and irreversible cessation of all brain activity, may be utilized in determining death.  But the moral legitimacy of brain death criterion has not been definitively resolved.

In our next installment, we will address some of the medical and philosophical arguments that are advanced in support of and in opposition to use of the brain death criterion.

Patrick Laurence

Patrick Laurence is an attorney who practices law in southern California. Prior to law school, Patrick worked as a Surgical Nursing Assistant in a large surgical unit, where he observed several organ harvesting procedures.

This article, Brain Death and the Harvesting of Human Organs is a post from The Bellarmine Forum.
Do not repost the entire article without written permission. Reasonable excerpts may be reposted so long as it is linked to this page.


  • […] The backdrop of tension behind all of this does appear to be a perception and belief by people in the region that Turkey is actively engaged in reassembling a modern Caliphate. Belloc, of course, predicted that the rise of complex global laws and usurious practices and taxes would make this day appealing to the commoner. Given the financial fraud that has been wrought upon Greece and the resulting destruction of ordinary people, Greece does appear to be put into a place where the financial stabilization possibly offered by a caliphate might be tempting. For instance, in the news today is the story of a Greek man willing to sell his kidney for money, just to provide for his children (also see our recent guest article on organ harvesting). […]

  • daniel says:

    in my country( israel are considering to change the law to be a mandatory
    for everyone to donate organs.
    even if someone opposes i am not sure they will consider his signature opposing the donation.
    the only solution – i believe- is to tattoo in lower part of the body my refusal.
    my question to you as a lawyer is how to tatoo the message against organ donation in the most clear way
    so that the medical will accept it.
    having a refuse form in a piece of paper in my pocket will not be effective.
    the only solution i think at present is to tatoo my objection,
    i will apreciate very much your advice.
    thank you in advance

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