“Our primary purpose is to define irreversible coma as a new criterion for death.” With these words, in 1967 the Harvard’s Committee started one of the most influential papers ever published in the medical literature [1]. In it, the Committee did not produce any scientific reason to justify why brain-dead patients are dead, but used moral and social justifications to demonstrate why they should be regarded as dead.

In 1981, a scientific reason was proposed to justify brain death (BD) with the theory of the “brain as the central integrator of the body”. According to this theory, after BD, the organism becomes a rapidly disintegrating collection of organs. Consequently, the concept of BD is not a moral and/or social concept and a matter of values, but rather a matter of scientific facts, an incontrovertible biological datum: “Death is the permanent cessation of functioning of the organism as a whole. (…). The criterion of permanent loss of functioning of the entire brain is perfectly correlated with the permanent cessation of functioning of the organism as a whole because the brain is necessary for the functioning of the organism as a whole. It integrates, generates, interrelates, and controls complex bodily activities. A patient on a ventilator with a totally destroyed brain is merely a group of artificially maintained subsystems since the organism as a whole has ceased to function” [2].

This rationale for the concept of BD was endorsed by the President’s Commission [3], which, convinced of the importance of the brain, recognized the profound instability of the brain-dead organism: “In adults who have experienced irreversible cessation of the functions of the entire brain, this mechanically generated functioning can continue only a limited time because the heart usually stops beating within two to ten days” [3].

The Commission also proposed a two-standards statute for determination of death: the traditional cardio-respiratory standard (“the irreversible cessation of circulatory and respiratory functions”) and the neurological standard (“the irreversible cessation of all functions of the entire brain including the brainstem”). This statute and the consequent definition of brain death have been incorporated in the guidelines and regulations of many countries world-wide.

Despite papers published in authoritative peer-reviewed scientific journals which challenged the tenability of the neurological standard, other influential papers and—above all—the official position of national and international scientific societies have been insisting for nearly three decades on the patho-physiological and moral adequacy of the concept of brain death.

In December 2008, the President’s Council on Bioethics published a white paper (“Controversies in the determination of death”) in which the neurological standard is carefully re-examined [4].

In this short report, we would like to discuss this paper, emphasizing what we regard as the most relevant issues. The paper is divided into seven chapters.

Chapter 1, “Introduction”, presents a short history of the neurological standard for the determination of death. The objectives and rationale of the report are presented. Finally, the organization of the report is illustrated.

In Chapter 2, “Terminology”, after a reasoned critique of the traditional term whole brain death, the new term total brain failure is proposed for the clinical diagnosis that underlies the current neurological standard. This is the first important change, and one could perhaps argue that brain failure is a much less strong and meaningful term than brain death. Yet, the choice of the Council is well defended: “Whether patients in this condition are, in fact, dead, is the central uncertainty addressed by this report; therefore, a term employing the word “death” […] is prejudicial to the aims of an open inquiry” (p. 12).

As a personal position, we believe that the term total brain failure is inaccurate. Defining this condition as total and then admitting that residual brain functions can be preserved is a clear logical contradiction which needs to be explained and justified (p. 38). Moreover, at a semantic level, intensivists are used to deal with failure of different vital organs (kidney failure, heart failure, liver failure) and to support them to recovery, as, in most cases, they are reversible; surely, no vital organ failure per se is considered to equate to death. For these reasons, the proposed term appears imprecise, open to criticism and likely to lead to difficulties in understanding and communication. We believe that the term irreversible apnoeic coma as already proposed [5] better captures the patho-physiological essence of the condition in question and is more easily understandable.

Chapter 3, “The clinical presentation and pathophysiology of total brain failure”, is divided into five parts. Part I is an overview of vital functions (breathing and circulation) in health and after brain injury. This section focuses on the physiology of ventilation and circulation, on the role of the central nervous system in regulating vital functions as compared with ventilatory support, and on the determination of death in a ventilated patient. Part II is concerned with the diagnosis and Part III with the pathophysiology of total brain failure. In Part IV, problematic empirical facts are discussed. The paper admits that “there is some degree of somatically integrated activity that persists in the bodies of patients who have been declared dead according to the neurological standard. […]. This point deserves emphasis because […] the claim that the body of a patient diagnosed with “whole brain death” is a mere “group of artificially maintained subsystems” was repeated often enough to become established in the United States as the standard rationale for equating total brain failure with human death: patients with this condition are dead because the systems of the body do not work together in an integrated way. […] The reason that these somatically integrative activities continue […] is that the brain is not the integrator of the body’s many and varied functions” (pp. 39–40). Moreover, the paper claims that published “cases justify caution and skepticism toward sweeping claims about the total instability of the “brain dead” body and the imminent collapse of the body’s systems” (p. 42). In Part V, total brain failure is compared to the persistent vegetative state and the differences between the two states discussed.

In Chapter 4, “The philosophical debate”, the central question of whether there is a sound biological justification for the neurological standards is discussed. First, the position of those who believe there is no biological justification is presented. The position of the defenders of the neurological standard is then proposed, a position the Council itself endorses. Obviously, having negated the loss-of-bodily integration theory, the Council must offer a different rationale for its choice, “a more compelling account of wholeness that would support the intuition that after total brain failure the body is no longer an organismic whole and hence no longer alive” (p. 60). This is perhaps the most valuable part of the paper and a real change. The Council position is that “reliance on the concept of “integration” is abandoned and with it the false assumption that the brain is the “integrator” of vital functions. Determining whether an organism remains a whole depends on recognizing the persistence or cessation of the fundamental vital work of a living organism—the work of self-preservation, achieved through the organism’s need-driven commerce with the surrounding world” (p. 60). This position is well explored in some complex pages within the paper that we will not summarize here. Yet, we strongly invite every intensivist to read them thoroughly and with great attention.

In Chapter 5, “Implications for policy and practice”, the practical consequences of both rejecting or affirming the neurological standard are explored. The concepts of severing the link between death and eligibility for organ donation or of taking vital organs only from non-heart-beating donors are explored. However, both approaches are rejected and the maintenance of present policies is affirmed.

In Chapter 6, “Non-heart-beating organ donation”, this practice and the relative moral issues are briefly explored.

Chapter 7 is the final “Summary of the council’s debate on the neurological standard for determining death”.

Three personal statements and a topical bibliography complete the paper.

We believe that this paper is an important position in our evolving social view of life and death for at least five reasons:

  1. 1.

    It recognizes that “the nature and significance of the problem [of determining death] have changed over time, especially in the wake of technological advances […]. Given these changes and others that are yet to come, the Council believes that it is necessary and desirable to re-examine our ideas and practices concerning the human experience of death in light of new evidence and novel arguments” (p. 92);

  2. 2.

    It admits that “until now, two facts about the diagnosis of total brain failure have been taken to provide fundamental support for a declaration of death: first, that the body of a patient with this diagnosis is no longer a “somatically integrated whole”, and, second, that the ability of the patient to maintain circulation will cease within a definite span of time. Both of these supposed facts have been persuasively called into question in recent years” (p. 90);

  3. 3.

    It recognizes that “the destructive storm that leads to “total” brain failure can leave certain areas of the brain intact. […]. In some cases, the preserved tissue in a body with total brain failure actually does support certain isolated functions of the brain. […]. It is therefore a fair criticism of the neurological standard, as enshrined in the UDDA, that “all functions of the entire brain, including the brainstem” are not, in fact, always irreversibly lost when the diagnosis is made” (pp. 37–38). Yet, it correctly points out that “signs of isolated brain function do not settle the fundamental issue: Is the organism as a whole still present?” (p. 38).

  4. 4.

    It reappraises the reality of the neurological standard by proposing replacing the term whole brain death with the new term total brain failure, which corresponds to a “condition of profound incapacity, diagnostically distinct from all other cases of severe injury” (p. 38);

  5. 5.

    It advances a new argument “to support the declaration of death following a diagnosis of total brain failure. It is one that many members of the Council find both sound and persuasive, for it appeals to long recognized facts about the condition of total brain failure, while doing so in a way that is both novel and philosophically convincing” (p. 90).

Perhaps some could fear that, as this paper has been written in the United States’ legal and clinical environment, the conclusions reached might have limited application in other jurisdictions. A further concern is that the ethical approach could be very much that of a Christian–Jewish culture with limited acknowledgment of multicultural issues. A final concern is that members of the President’s Council were selected under former President Bush, and are likely to represent the views of a conservative position.

Our personal point of view is that the President’s Council reasoning is appropriately responsive to the patho-physiology of brain death (or total brain failure). In this sense, the point of view presented in its report tries to be as objective as possible as “it builds upon an insight into biological reality, (…) by articulating a philosophical conception of the biological realities of organismic life” (p. 66).

In doing so, the President’s Council “gives a fair hearing to, and address on their own terms, the challenges posed by advances in the clinical and patho-physiological understanding of brain death.” Then, it offers “substantial reassurance as to the ultimate validity of the standard” (p. 74).

In this way, the Council’s white paper changes nothing in regard to the current practice of determining death. Yet, it effectively gives a new foundation to the justification for the neurological standard of death. Consequently, it puts an end to what some authors considered an untenable position, as described by Taylor, of “preserving the concept of brain death as a social construct, as a “legal definition of death”, but distinct from biological death” [6].

In our personal opinion, the proposed rationale has acceptable specificity and sensitivity. In fact, it reasonably reflects the patho-physiology of brain death and at the same time enables good clinical discrimination of this condition from other states of severe neurological impairments.

The only note of caution we would make is that it leaves the reader with the sensation of a strained and ad hoc tailored construction organized in order to justify a posteriori the current neurological standard.

Whether the new rational proposed by the President’s Council will be found broadly acceptable is impossible to know. Yet, we believe it will not pass unnoticed. It is for this reason that we believe that this white paper deserves careful reading and open discussion, especially within the intensive-care community.