“The Principle of Caution Must Prevail”

In 1957, Pope Pius XII addressed an audience of anesthesiologists and answered three questions put to him by the University of Innsbruck’s Dr. Bruno Haid. The Pontiff’s answer to Dr. Haid’s third question set the stage for a dispute over whether “brain death” is a legitimate criterion for determining death or is instead an inaccurate norm that allows surgeons to kill thousands of near-dead patients for the sake of the transplantation of vital organs. According to the Organ Procurement and Transplantation Network, 21,561 of the 28,291 organ transplantations that took place in the US in 2006 were from donors declared deceased.

“When the blood circulation and the life of a patient who is deeply unconscious because of a central paralysis are maintained only through artifi cial respiration, and no improvement is noted after a few days,” Dr. Haid asked, “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)?”

Pope Pius answered that the determination of the moment of the death falls outside the competence of the Magisterium. “Where the verifi cation of the fact in particular cases is concerned, the answer cannot be deduced from any religious and moral principle and, under this aspect, does not fall within the competence of the Church. Until an answer can be given, the question must remain open. 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.”

The Pontiff also said, “It remains for the doctor, and especially the anesthesiologist, to give a clear and precise defi nition of ‘death’ and the ‘moment of death’ of a patient who passes away in a state of unconsciousness. Here one can accept the usual concept of complete and final separation of the soul from the body; but in practice one must take into account the lack of precision of the terms ‘body’ and ‘separation.’”

Dealing with the implications of Pope Pius’s answer 51 years later, Pope Benedict XVI discussed issues surrounding brain death in a November 7 address to participants in a conference on organ donation. Like Pope Pius and Pope John Paul II before him, Pope Benedict praised organ donation as a meritorious act if free and informed consent is given and “only if [the donor] is not placing his own health and identity in serious danger, and only for a morally valid and proportional reason.” Like Pope John Paul, Pope Benedict cautioned that individuals from whom organs are extracted must truly be dead, and like his predecessor, he manifested an openness to “further progress” made by science “in certifying the death of the patient.” In Pope Benedict’s statement that caution must prevail in determining death “where certainty has not been attained,” neurologists, cardiologists, and others who have questioned for years the validity of the brain-death diagnosis found some vindication of their concerns.

THE ORIGIN OF “BRAIN DEATH”

In December 1967, Dr. Christiaan Barnard, a South African surgeon who later wrote Good Life, Good Death: A Doctor’s Case for Euthanasia and Suicide, performed the first successful heart transplant: the donor had been declared dead, but her heart was kept beating through artificial means, since vital organs such as the heart rapidly become unsuitable for transplant after cessation of cardio-respiratory activity.

The following August, the prestigious Journal of the American Medical Association published a Harvard Medical School ad hoc committee report that led to a radical shift in the medical community’s understanding of the moment of death. Calling for “a new criterion for death,” in part because “obsolete criteria for the definition of death can lead to controversy in obtaining organs for transplantation,” the report’s authors considered Pope Pius’ 1957 remarks and argued that the traditional concept of death as the cessation of cardiorespiratory activity should give way to a concept of death as a “permanently nonfunctioning brain.”

Acceptance of this new criterion for determining death, which became the dominant view within the medical community, was not unanimous. In 1979, Dr. Paul Byrne, later president of the Catholic Medical Association, coauthored an article in The Journal of the American Medical Association in which he made the case that “cessation of total brain function, whether irreversible or not, is not necessarily linked to total destruction of the brain or to the death of the person.” Within the pro-life movement, activists who were united in principle in their opposition to abortion and active euthanasia disagreed over issues surrounding brain death.

In November 1976, a working group of fifteen theologians, doctors, and priests and religious who care for the sick gathered for three days under the auspices of the Pontifi cal Council Cor Unum for Human and Christian Development. Five years later, the council published the results of their deliberations. Citing Pope Pius’ statement, the council noted that “it is for medical science and not for the Church to establish” criteria for determining death and observed that “a growing consensus of opinion…considers a human being dead in whom a total and irreversible absence of life activity in the brain has been established.”

The council revealed 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 offi cial 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.”

The Pontifical Academy of Sciences entered the debate in 1985 and again in 1989. Founded in 1603, the academy is not an organ of the Magisterium—its 80 members need not be Catholic—but rather seeks to promote the advancement of scientific knowledge and serve as “an invaluable source of objective information upon which the Holy See and its various bodies can draw.” In both instances, working groups of the academy reached the same conclusions: “cerebral death is the true criterion of death” (1985), and death occurs when “there has been an irreversible cessation of all brain functions, even if cardiac and respiratory functions which would have ceased have been maintained artifi cially” (1989).

Addressing the participants in the 1989 discussion, Pope John Paul II said:

On the one hand there is the urgent need to fi nd replacement organs for sick people who would otherwise die or at least would not recover. In other words, it is conceivable that in order to escape certain and imminent death a patient may need to receive an organ which could be provided by another patient, who may be lying next to him in hospital, but about whose death there still remains some doubt…. There is a real possibility that the life whose continuation is made unsustainable by the removal of a vital organ may be that of a living person, whereas the respect due to human life absolutely prohibits the direct and positive sacrifi ce of that life, even though it may be for the benefi t of another human being who might be felt to be entitled to preference.

The Pontiff called for continued scientific study and ethical reflection.

The 1990s witnessed a relative calm in the Church’s deliberations on brain death, though:

• the Catechism of the Catholic Church (1992) taught that “organ transplants are in conformity with the moral law if the physical and psychological dangers and risks incurred by the donor are proportionate to the good sought for the recipient. Donation of organs after death is a noble and meritorious act and is to be encouraged as a manifestation of generous solidarity. It is not morally acceptable if the donor or those who legitimately speak for him have not given their explicit consent. It is furthermore morally inadmissible directly to bring about the disabling mutilation or death of a human being, even in order to delay the death of other persons”;

• the Pontifical Council for Pastoral Assistance to Health Care Workers (1995) affi rmed the Pontifi cal Academy of Science’s conclusions but called for “the most accurate use of the various clinical and instrumental methods for a certain diagnosis of death so that patients are not declared dead and treated as such when in fact they are not dead”;

• Pope John Paul II in his 1995 encyclical Evangelium Vitae praised organ donation but cautioned, “Nor can we remain silent in the face of other more furtive, but no less serious and real, forms of euthanasia. These could occur for example when, in order to increase the availability of organs for transplants, organs are removed without respecting objective and adequate criteria which verify the death of the donor.”

In a 2000 address, Pope John Paul offered tentative and qualifi ed support for the concept of brain death:

Acknowledgement of the unique dignity of the human person has a further underlying consequence: vital organs which occur singly in the body can be removed only after death, that is, from the body of someone who is certainly dead. This requirement is self-evident, since to act otherwise would mean intentionally to cause the death of the donor in disposing of his organs. This gives rise to one of the most debated issues in contemporary bioethics, as well as to serious concerns in the minds of ordinary people. I refer to the problem of ascertaining the fact of death. When can a person be considered dead with complete certainty?…

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.

With regard to the parameters used today for ascertaining death— whether 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 the possible conflicts capable of endangering respect for human dignity.

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. 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.

In a CWR article the following year, Dr. Byrne and five coauthors, including two American bishops (Bishop Fabian Bruskewitz and Bishop Robert Vasa) and the president of the International Academy of Philosophy in Liechtenstein (Dr. Josef Seifert), questioned the validity of the brain death diagnosis and described the Pope’s address “as a strong condemnation of the inhumane procedures and violations of natural moral law that presently occur with the transplantation of certain organs.” Their article inspired letters from nurses, doctors, and ethicists who supported their analysis.

DEBATE REVIVED: 2005-2008

Pope John Paul did not consider the validity of the criterion of brain death to be a closed question. In February 2005—a month before his death—the Pontifical Academy of Sciences again considered the issue, and the Pontiff said in a message to participants, “On the one hand, the Church has encouraged the free donation of organs, and on the other hand she has underlined the ethical conditions for such donation, emphasizing the obligation to defend the life and dignity of both donor and recipient; she has also indicated the duties of the specialists who carry out this procedure of organ transplant.”

The academy’s reexamination of the question, said the Pontiff, was “of fundamental importance, for which the well-considered and rigorous position of science must therefore be listened to in the first instance, as Pius XII taught when he declared that ‘it is for the doctor to give a clear and precise definition of ‘death’ and of the ‘moment of death.’” The Congregation of the Doctrine of the Faith, Pope John Paul pledged, would “ponder the results of your refl ection” and then “offer the necessary clarifi cations for the good of the community.”

As reported in CWR in 2005, 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 scientifi c fact. It is not suffi cient to overcome the presumption of life.”

Respected Italian journalist Sandro Magister reported, “This conference was a shock to the Vatican offi cials who subscribe to the Harvard report,” and one “prevented the proceedings from being published.” Nine of the participants, joined by likeminded doctors and scholars, then had their papers published in the volume Finis Vitae: Is Brain Death Still Life?, which is available from the American Life League.

In June 2005, the newly elected Pope Benedict XVI promulgated the Compendium of the Catechism of the Catholic Church, which teaches, “Are the transplant and donation of organs allowed before and after death? The transplant of organs is morally acceptable with the consent of the donor and without excessive risks to him or her. Before allowing the noble act of organ donation after death, one must verify that the donor is truly dead.”

The following year, the Pontifical Academy of Sciences met again to consider the question of brain death. Pope Benedict did not offer his views on the subject during his brief written greeting to the participants. According to the academy’s concluding 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.

Among the signatories (most of whom were neurologists) were Bishop Elio Sgreccia, then president for the Pontifical Academy for Life—a prelate who, in the words of LifeSiteNews, has “unhesitatingly attacked euthanasia, abortion, contraception, embryonic research, and many other manifestations of the culture of death”—and the late Cardinal Alfonso López Trujillo, likewise “one of the world’s greatest defenders of the sanctity of human life” and then president of the Pontifical Council for the Family.

On September 2, the Vatican newspaper L’Osservatore Romano reopened the internal Church debate by publishing an article questioning the criterion of brain death. Historian Lucetta Scaraffia observed that Vatican City State does not make use of the brain death diagnosis and noted that pregnant women who have been declared brain dead are able to give birth. Father Federico Lombardi, director of the Holy See Press Office, said the same day that while the article was “interesting and weighty,” it was “not an act of the Church’s Magisterium,” and its views are “not binding for the Holy See.”

In November, the Pontifical Academy for Life, the World Federation of Catholic Medical Associations, and the Italian National Transplant Center cosponsored “A Gift for Life,” a conference on organ donation. Alexandra K. Glazier, vice president and general counsel of the New England Organ Bank and a speaker at the conference, told CWR, “I am not aware that there were any arguments presented at the conference in Rome questioning the validity of brain death as a criterion for determining death.”

At an audience with conference participants on November 7, Pope Benedict praised the meritorious nature of the act of organ donation. He then condemned abuses in the organ transplant industry and referred to the debate on brain death:

Someone can give only if he is not placing his own health and identity in serious danger, and only for a morally valid and proportional reason…. Transplant abuses and their trafficking, which often involve innocent people like babies, must find the scientific and medical community ready to unite in rejecting such unacceptable practices. Therefore they are to be decisively condemned as abominable…. 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. 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 donor must always prevail so that the extraction of organs be performed only in the case of his true death.

Those attending the conference, as well as opponents of the validity of the brain death criterion, welcomed the Pope’s remarks. “Pope Benedict’s strong support for organ donation continues in the tradition of John Paul II, who specifi cally mentioned the use of neurological criteria in the determination of death,” says Glazier. “We support Pope Benedict’s view that organ donation is an important life-saving intervention and that in these years there has been progress in certifying the death of the patient.”

Dr. José María Simón, president of the World Federation of Catholic Medical Associations, told CWR, “The Pope in fact did not change the medical praxis that many good Catholic doctors are performing. Donations have to be done ex cadavere: those who certify the death are the doctors. I have full respect for those who do not believe in brain death! Nevertheless, they should also respect a criterion that is not against reason and certainly is not against the Magisterium.”

On the other hand, British cardiologist Dr. David Evans said, “I am much encouraged by the Pope’s utterances…. If there is any scientific objectivity and intellectual integrity left amongst those in thrall to the transplant industry, his strictures against the removal of vital organs when there is any remaining
doubt about their owner being dead must surely be heeded. If by ex cadavere he is understood to mean ‘from a cadaver’—and a cadaver is understood to mean a truly dead body—then it will have to be accepted that the era of human organ procurement for transplant purposes is over for conforming Roman Catholics.”

Judie Brown, president of the American Life League, agrees. She told CWR that “the problem with debates in Catholic circles regarding the question of brain death as actual death has little to do with the clear, undeniably succinct statements of the Holy Father and his predecessor. Rather, the nuancing that continues in some Catholic circles has to do with a hesitation to come out and say without apology that any act of removing a vital organ that results in the death of a living patient is wrong and must not occur.” Referring to the Pontiff’s use of the words ex cadavere, Brown added, “Quite simply, dead is dead, not nearly dead or presumed dead or probably dead. Until the controversy surrounding alleged brain death ends, the criteria should be as the Holy Father has set forth without nuance. The reason there is debate is because there is a question; if there is a question, the patient should not be the victim of one side of the debate.”

Dr. Michael Potts, professor of philosophy at Methodist University in North Carolina and a non-Catholic participant in the 2005 pontifical academy meeting, added, “I am pleased to hear that the Pope is reconsidering brain death criteria. I am hopeful that his statement means that the Roman Catholic Church is now open to hearing the case from opponents of brain death criteria.”

Dr. D. Alan Shewmon, professor of neurology and pediatrics at UCLA and chief neurologist at Olive View UCLA Medical Center, praised the Pontiff’s references to “the entire scientific community” and “certainty”:

It can hardly be claimed that there is a “consensus of the entire scientific community” and “certainty” regarding the diagnosis of brain death, when some countries define it in terms of the whole brain while others in terms of only the brain stem…there are ongoing debates about what constitutes a relevant or “clinically relevant” “brain function” for purposes of the diagnosis…there has been much questioning over the years regarding the actual confirmatory value of certain purportedly “confirmatory” tests…[and] there is a persistent current of publications in the medical and philosophical literatures questioning whether any sort of purely neurological “death” is true death, as ordinarily understood and as the Church defines it. Until a true professional consensus is reached on such important aspects, “the principle of caution should prevail.”

Dr. Cicero Galli Coimbra, associate professor of neurology and neuroscience at the Federal University of São Paulo (Brazil), welcomed the Pontiff’s reference to “the most transparent truth” about transplantation. Such transparency, said Dr. Coimbra, would allow for a wider discussion of concerns that the apnea test, which is used to diagnose brain death, is not therapeutic and can hasten the patient’s death.

Dr. Byrne told CWR that “following this instruction, many would say and write that after true death, that is ex cadavere, the heart is not suitable for transplantation…. When someone is declared ‘brain dead’ by more than 30 disparate ‘brain death’ criteria, of which a person can be declared ‘brain dead’ by one set yet be alive by others, the heart is beating, the blood pressure is normal and when the ‘donor’ is cut into to get the organs, the ‘donor’ will move and squirm and there will be increase in heart rate and blood pressure. The ‘donor’ must be given a paralyzing drug and anesthetic to prevent this. Would this fulfill the Pope’s instruction of ‘certainty?’” Dr. Byrne also pointed to recent cases in which persons declared brain dead recovered and are now alive.