Death as the Cessation of an Organism and the Moral Status Alternative

Abstract

The mainstream concept of death—the biological one—identifies death with the cessation of an organism. In this article, I challenge the mainstream position, showing that there is no single well-established concept of an organism and no universal concept of death in biological terms. Moreover, some of the biological views on death, if applied in the context of bedside decisions, might imply unacceptable consequences. I argue the moral concept of death—one similar to that of Robert Veatch—overcomes such difficulties. The moral view identifies death with the irreversible cessation of a patient’s moral status, that is, a state when she can no longer be harmed or wronged. The death of a patient takes place when she is no longer capable of regaining her consciousness. In this regard, the proposal elaborated herein resembles that of Veatch yet differs from Veatch’s original project since it is universal. In essence, it is applicable in the case of other living beings such as animals and plants, provided that they have some moral status.

I. INTRODUCTION

Although more than 50 years have passed since the Ad Hoc Committee (1968) report, the publication of which launched the history of the modern neurological criteria of death, the criticism concerning the determination of brain death has become more intense over the last 20 years. The publications of Alan Shewmon, who has pointed out that brain-dead patients might constitute integrated organic wholes (2001), and that they are sometimes capable of persisting in such states for periods of over a week or even many years (1998), are to a large extent the primary source of these intense controversies. Shewmon’s findings fundamentally undermined the belief that brain death is the death of a human organism, a direct challenge to the opinion held by most academics working in the field.¹ For them, the notion of “death” is a biological one, and all living organisms die in the same sense (see, e.g., Bernat, Culver, and Gert, 1981; Singer, 1994; President’s Council, 2008, 51–52). According to this view, brain death was perceived to be an adequate criterion of death, since it was believed that humans in such a state could not constitute an integrated whole, but merely a set of artificially sustained organs which will soon gradually deteriorate (Korein, 1978, 26–27; Bernat, Culver, and Gert, 1981, 391). In light of Shewmon’s analysis, this statement has been proven to be false.

Taking into account the dead donor rule, which forbids the retrieval of organs before the natural death of a donor (Robertson, 1999; Veatch, 2003; President’s Council, 2008, 100; Bernat, 2013; Nair-Collins, Green, and Sutin, 2015), and the fact that the brain-dead are the main source of organs all over the world (Global Observatory on Donation and Transplantation, 2018), an impasse has occurred. Three leading solutions were proposed to resolve this problem. First, it was put forward that brain death does not constitute the real death of a human being and, therefore, all types of conduct that are typically used with the truly deceased, such as organ retrieval, should be forbidden if they target those who are merely brain-dead (e.g., President’s Council on Bioethics, 2008, 52–58; Symons and Chua, 2018). The second line of argumentation ran that, even if brain death is not “real” death, organs should still be retrieved, provided that the patients gave their informed consent for such a lethal procedure (e.g., Miller and Truog, 2012; Nair-Collins, 2018b). Third, a distinction was proposed between the biological and moral sense of “death,” pointing out that in some contexts such as organ donation, the second sense is what matters (e.g., Veatch, 1975; Shewmon, 2010; Lizza, 2011; Veatch, 2015; Veatch, and Ross, 2016, 153).²

The first of the proposed solutions almost eliminates the possibility of organ transplantation, a therapy that saves many lives each year, and at least in the case of kidney transplantation is cheaper and more effective than all of the available alternatives (Jensen, Sørensen, and Petersen, 2014). Moreover, it requires us to treat the brain-dead as living people in all other respects. The second possibility demands social consent for causing the death of patients at their request, and might be accompanied by a decrease in the number of transplants (Nair-Collins, Green, and Sutin, 2015, 301). The third option seems the most promising, both theoretically and practically. Later on in this paper, I will elaborate on the theoretical merits of this solution. For now, it should be mentioned that it is welcomed for practical reasons: it does not require any changes to be made to our conduct (e.g., when it comes to organ transplantation), by simply providing a new concept of death that justifies why brain death is “real” death.

At present, there are almost no institutional bodies (such as the President’s Commission or President’s Council) that would refer to the concept of death as an irreversible loss of moral status as the main justification for equating brain death with death in their legislative documents. A frequently stated claim is that any legally acceptable concept of death must be based on the philosophy (theory) of biology, since biology and the other natural sciences provide “firm” knowledge which keeps the debate at a safe distance from philosophical discussions on unresolvable problems (e.g., Grisez, and Boyle, 1979, 75–8; Bernat, Culver, and Gert, 1981; President’s Commission, 1981, 39–40; Lamb, 1985; Bernat, 2002, 2006; President’s Council on Bioethics, 2008, 51; Marquis, 2010, 28, 2018; Miller, and Truog, 2012, 89; Condic, 2016).³ However, the strategy of being so attached to that kind of biological paradigm is based on dubious modifications to the concept of death itself, which do not stand up to criticism (Nair-Collins, 2018a, 35–39). In this article, I contribute to the discussion by providing an argument that indirectly favors the third option in the debate: I claim that the dominant biological concept of death is based on controversial assumptions and thus has no advantage over the moral account.

II. THE BIOLOGICAL PARADIGM

The history of the justification of the neurological criteria of death which utilizes the biological concept of an organism began in 1981 in two influential publications: the article “On the Definition and Criterion of Death” by Bernat, Culver, and Gert and in the report “Defining Death” issued by the President’s Commission. Shortly after the publication of these texts, the neurological criteria were legally established in all states of the United States and most other countries. The justification for the adoption of these criteria was often similar to that which appeared in the aforementioned publications. Bernat, Culver, and Gert write about death in the following manner:

Death is considered a biological occurrence not unique to humans, and other higher animals would be considered dead according to the same definition. As a biological phenomenon, death should apply equally to related species. When we talk of the death of a man we mean the same thing as we do when we talk of the death of a dog or a cat. (1981, 389)

While, in the President’s Commission report, the following lines are included:

(…) death is that moment at which the body’s physiological system ceases to constitute an integrated whole. Even if life continues in individual cells or organs, life of the organism as a whole requires complex integration, and without the latter, a person cannot properly be regarded as alive. (1981, 33)

After the publication of these texts, scores of bioethicists frequently ventured the thesis that the word “death” has a biological meaning, and that different living organisms die in the same sense. Even proponents of the moral approach admit that “death,” understood as an irreversible loss of moral status, might only be a technical concept, whilst the biological sense of “death” would be the primary notion (McMahan, 2002, 425). Abandoning the field in this way to the proponents of the biological paradigm overlooks the fact that biology, as well as considerations on the margins of life, lacks a unified definition of an organism (see, e.g., Pepper and Herron, 2008; Nicholson, 2014; Brown, 2019; Kingma, 2019, 623–631). This is a crucial problem for biological concepts of death, which are based on either the President’s Commission report or the famous article of Bernat et al. The linchpin of the argument advanced by the proponents of such paradigms, according to which the word “death” in the biological context has a clearly determined meaning, as opposed to “death” in the moral sense, collapses. If we do not have clarity concerning the meaning of the word “organism,” if the meaning of the term “living body” is muddled, then we cannot precisely define death in a biological sense (Magnus, 2018).

An Integrated Whole

In the context of the debate over brain death, the only consensus about the meaning of the word “organism” achieved to date is very humble and amounts to the statement that an organism constitutes an integrated whole or an integrated unity, yet this qualification is a nebulous one at best.⁴ One of the few proposals to operationalize it was provided by Shewmon, who formulated the following criteria to distinguish between organisms and things which are dead or inanimate⁵;

CRITERION 1. “Integrative unity” is possessed by a putative organism (i.e., it really is an organism) if the latter possesses at least one emergent, holistic-level property. A property of a composite is defined as “emergent” if it derives from the mutual interaction of the parts... and as “holistic” if it is not predicable of any part or subset of parts but only of the entire composite. (2001, 460)

The fulfillment of this criterion is necessary for one to be a living human organism, yet it is not sufficient because, as its author notices, it might be satisfied by entities that are certainly not organisms, such as societies (Shewmon, 2001, 461). According to Shewmon, something more is needed for a given object to be a living human organism:

CRITERION 2. Anybody requiring less technological assistance to maintain its vital functions than some other similar body that is nevertheless a living whole must possess at least as much robustness of integrative unity and hence also be a living whole. (2001, 462)

Shewmon develops the first and second criterion as necessary and sufficient conditions for a given object to be classified as a living organism. However, the second criterion allows one to distinguish living organisms only if one already knows that some individuals under artificial support are living organisms at the outset. As a result, it is disappointing. It requires us to either refer to some other criteria permitting patients to be determined as biologically living at the outset, or to agree that all living patients (irrespective of their health condition) are identified as such intuitively without having in common any single characteristic (Chiong, 2005; Żuradzki and Nowak, 2019; see also Shewmon, and Shewmon, 2004, 90–91).

Alternative Criteria

How might the first criterion provided by Shewmon be supported to separate the subcategory of living organisms from the set of other individuals which constitute integrative unities? The first idea came from Shewmon himself, who, while referring to Varela (1979), writes that “... living organisms topologically demarcate «self» from «non-self» by a continuous, closed membrane...” (2001, 461). This proposal is far from persuasive since artifacts made by humans, such as computers, are sometimes in possession of “a continuous, closed membrane” and have at least one holistic and emergent property. The capacity to compute constitutes precisely such a property. It cannot be predicated on any part of the device, but only about the computer as a whole (it is holistic), and it is an effect of the integrated coordination of its parts, that is, processor, RAM, and input/output devices (it is emergent). Consequently, computers satisfy the first criterion proposed by Shewmon, and are equipped with “membranes” separating them from the external world. Therefore, if Shewmon’s first criterion, together with the membrane criterion, are proposed as necessary and sufficient criteria for being an organism, it seems that computers are organisms even though (quite naturally) no biologist would recognize them as such.

One could try to defend this way of differentiating organisms from inanimate and dead material by reference to Varela’s other idea, namely to the notion of autopoiesis:

an autopoietic system is organized (defined as a unity) as a network of processes of production (transformation and destruction) of components that produces the components that: (1) through their interactions and transformations continuously regenerate and realize the network of processes (relations) that produced them; and (2) constitute it (the machine) as a concrete unity in the space in which they exist by specifying the topological domain of its realization as such a network. (1979, 13)

One might claim that for a given entity to be an organism, it not only needs to possess at least one holistic and emergent property, and to be equipped with a membrane, but it also needs to be an autopoietic system.⁶

There are, however, serious problems with utilizing autopoiesis as an eligibility criterion for being an organism. Pier Luigi Luisi (one of Varela’s co-workers) noticed that the notion of autopoiesis and the concept of life that is associated with it is quite nebulous and lies rather on the margins of science (2003; c.f. Bourgine and Stewart, 2004). The fuzziness of the notion of autopoiesis endangers the very goal of Shewmon’s analysis, which was among others to provide a “careful operational definition of terms” (2001, 459) that are present in the definition of death debate. Since autopoiesis is not straightforward, it is unclear which entities are to be classified as autopoietic, and therefore living. At the very beginning, this concept was invented to describe mechanisms of only cellular life. As Luisi noticed, it took a long time for Varela to accept that autopoiesis might be generalized to higher organisms (2003, 52). Yet, some social scholars uphold that social systems such as families and political parties also might be perceived as autopoietic (see, e.g., Teubner, 1993; Luhmann, 1995; Mingers, 1995, 1997). Are such social systems themselves living organisms? Such a conclusion seems to be dubious.

Moreover, even if the criterion of autopoiesis removes computers as members of the family of the living since they do not regenerate their hardware, it might still allow for some human-made artifacts to be recognized as organisms. The first example of such an object is a computer program designed by Varela et al. According to Varela et al., the program, if run, is capable of fulfilling the minimal criteria for autopoiesis, and of possessing at least one holistic and emergent property (1974; McMullin and Varela, 1997).⁷ The second example is what is currently called “wet artificial life” (Badeau, 2003; Luisi, 2003; Sulllins, 2005; Fellermann, 2011), which is a kind of self-reproducing system of molecules obtained by chemists in their laboratories.

The Entropic Concept of Death

Since the notion of an “integrated whole” that is used to define an organism seems to be too nebulous to constitute a scientific basis for such a definition, one could try to find a way to provide a more science-informed method of distinguishing living organisms from inanimate and dead material. Such an idea might be sought in the notion of entropy, which has been utilized to define life since the publication of the famous book “What is Life” by Erwin Schrödinger. Scientists often explain what entropy is, saying that it is a measurement of disorder (Lambert, 2002, 187–188). However, such an explanation is only a crutch. More precisely, entropy is described by Franklin Lambert in the following way:

... “entropy change measures energy’s dispersion at a stated temperature.” This concept of energy dispersal is not limited to thermal energy transfer between system and surroundings. It includes redistribution of the same amount of energy in a system—for example, when a gas [or liquid] is allowed to expand into a vacuum container, resulting in a larger volume. (2002, 187–188)

According to H theorem, every isolated system of molecules (a system with no entrance and no exit) will unavoidably tend toward a state of maximum entropy. When it reaches this state, it will never deviate from it (cf. Brown, Myrvold, and Uffink, 2009). If H theorem is true, and if the whole world is an isolated system as some scientists suppose, then living organisms are a very peculiar fragment of it:

... [they] are localized pockets of anti-entropy, achieved by mutually interdependent functional structures jointly maintaining internal equilibrium, or homeostasis of the extracellular fluid, a necessary condition for all organismic function, while resisting chemical and thermal equilibrium with the external environment. (Nair-Collins, 2018a, 32)

Along the lines of this entropic definition of life, several versions of the entropic view on death might be distinguished. Here I will focus on one which appears commonly in the context of the brain death debate (Korein, 1978; Shewmon, 2001; Miller and Truog, 2012; Bernat, 2019; Huang and Bernat, 2019). According to this concept, the characteristic which differentiates living organisms from other parts of the world is the fact that organisms are capable of opposing entropy within themselves, and they die when they irreversibly lose this capacity. An example provided by Michael Nair-Collins might help to clarify what is usually meant by the capability to oppose entropy increase:

... A trip and fall in an otherwise healthy thirty-year-old might create a bruise or scraped skin, but would not pose too much of a threat. But a fall in a very old person, especially someone who is frail, is a grave threat to their health and even life. It often signals the beginning of their functional decline, because their physiologic reserve is much lower. Taking the idea of homeostenosis to its natural conclusion, when the organism no longer has the ability to restore homeostasis, the organism has died. (2018a, 32)

How to understand what happens here in terms of entropy? Roughly this way: when a 30-year-old falls, homeostasis is disturbed for a while, meaning that entropy increases in their organism (energy disperses). But the bodies of healthy 30-year-olds usually have the requisite physiological reserves, with some access to external resources, that make them able to reduce the level of entropy, and restore homeostasis. Such unfortunate accidents generally end in just a bruise or scraped skin. The upshot is that the ability to reduce the level of entropy or, in other words, restore homeostasis, is to be understood as being synonymous with life.⁸ But what is death according to such a view? Miller and Truog have stated this perhaps most explicitly: “... death occurs at the moment when the entropy-increasing forces have irreversibly exceeded those that are resisting this process.” (2012, 70). I suppose that Miller and Truog understand death just as Nair-Collins does—as a state when an organism has not enough physiological reserves to restore homeostasis.⁹

Even though the entropic concept of death seems to be more theoretically sophisticated than the concept of death as a loss of somatic integration, it is still disappointing, at least if we would like to adopt such a concept for purposes other than scientific ones, such as healthcare. There is no method for actually measuring entropy in an organism, nor even any hypothetical understanding of what a numerical measurement of entropy in an organism would even mean. We can only speculate philosophically on measures of entropy in organisms, and it seems that everyone can do so as she pleases. Taking into account the vagueness of this concept, academics on opposing sides of the debate can easily refer to the entropic view of death arguing for their position: some of them claim that it justifies brain death as a criterion of death (Korein, 1978; Bernat, 2019; Huang and Bernat, 2019) and others claim that it explains why brain death is not an appropriate criterion of death (Shewmon, 2001; Miller and Truog, 2012).

Another problem with the entropic concept of death is that it might have absurd consequences, at least if we make some assumptions about the measurement of entropy in organisms. Let me recall that according to this view, an organism dies when its physiological reserves are insufficient to restore homeostasis. To return to Nair-Collins’ case mentioned above, suppose that the one who fall suffers from hemophilia, and the accident causes her to transect one of her main arteries. If death is seen as a moment when one has no reserves to restore homeostasis, it might be the case that such a person “dies” before she loses consciousness. It might be impossible for the hemophiliac to restore homeostasis with her physiological reserves if there are no people around to help and, in such circumstances, entropy irreversibly increases.¹⁰ Nevertheless, even if physiological reserves are absent, we would like to say that people in this kind of situation are in some sense alive (they are conscious!). While considering such cases, we understand that, although the modern entropic version of the concept of death might seem to cohere well with some scientific theory, it is not the concept of death that we are looking for in the context of human conduct and social relations.

The Fuzzy Concept of an Organism

One might wonder why bioethicists upholding the belief that death is the cessation of an organism generally do not utilize the works on the concept of an organism that are present in the philosophy of biology.¹¹ One reason might be historical: philosophers of biology in the 1980s, when the “biological” status quo in the definition of death debate emerged, were not interested in the concept of an organism, focusing instead on populations and genes (Nicholson, 2014). Some of them even questioned whether organisms exist (Ruse, 1989). When, at the beginning of the 21st century, they finally focused their attention on the theory of organisms, they realized that no universal concept of an organism is present in natural sciences. Rather there is a plurality of such concepts, depending on the character of the given scientific research (Pepper and Herron, 2008; Nicholson, 2014; Stencel and Proszewska, 2018, 613–617; Kingma, 2019, 623–631). Ellen Clark perhaps makes this point most forcefully:

Biologists rely heavily on the concept of the organism, but they import different concepts into their models and discussions without reaching a consensus about which concept should be used, and usually without even being aware that they are talking about different things. (2010, 323)

Even though from the beginning of the new century the philosophy of biology has focused on the concept of an organism (Nicholson, 2014), bioethicists, upholding the “biological” definition of death, usually do not utilize the findings of philosophers of biology (Nowak and Stencel, 2022). We might observe a lack of intersection points of bioethical and philosophy of biology debate because bioethicists working in the field of brain death debate believe that there is only one well-established concept of an organism, assuming that death might happen only once (cf. Shewmon and Shewmon, 2004). Yet if there is no such thing as a single universal concept of the organism, if there are multiple concepts, there might also be numerous biological deaths. But such a conclusion is not what bioethicists were looking for.

Thus far I have presented problems associated with the biological concept of death enshrined in the brain death debate. Now is the time for a concluding remark on this part of the discussion: efforts made to defend this version of the biological concept of death fail.¹² Even though such a concept aspires to be scientific, it is detached from the notion of an organism that is present in theoretical biology. At the same time, the concept of an organism developed originally within the brain death debate is problematic. It is either based on the nebulous notion of integrative unity or it defines conditions for being an organism in terms of entropy, which is immeasurable in the case of the living. Recently, James Bernat realized that the “founding myth” of this version of the “biological” concept of death about the universal and univocal concept of an organism is naive. Bernat has confessed that “[w]e should not demand more rigor and specificity from theoretical biological formulations than their intrinsic limitations permit and keep these categorical limitations in mind as we note the imperfections of biophilosophical formulations of death.” (2019, 4). In the part of the article which follows, I will argue that in the usual circumstances of our ordinary life, the death of a particular human does not have much in common with the criteria for being an organism and that in our daily life circumstances we should think about death as a moral phenomenon.

III. DEATH AS A MORAL RATHER THAN A PURELY BIOLOGICAL ISSUE

In the previous sections, I have pointed out several problems with the biological concept of death. The fact that we think that it would be bizarre to state that a conscious but inexorably dying patient is dead, reveals that something else than the biological concept is at stake. We come to the same conclusion when we find out that we are not satisfied with the idea that there are multiple equivalent biological deaths of a human. We feel that we need one concept of death for the purposes associated with healthcare. It is a mistake to understand life and death as fundamentally biological phenomena. Clearly, a theoretical analysis of “life” and “death” in a biological sense is an essential task for theorists of biology, but it is not this type of analysis that we are looking for when confronted with the decisions at the bedside.¹³

We should notice that healthcare is still a form of care. Even if the achievements of contemporary natural science inform it, it is not natural science itself. Nor is medical treatment a form of scientific conduct. The goal of healthcare is to care for patients and their well-being in a scientifically informed way, and perhaps to promote an understanding of the biological preconditions of patients’ well-being. Yet the natural sciences cannot help us with defining “life” and “death” in a sense which matters for practical decisions. Life and death are, in some sense, clearly ethical terms, not biological ones. That is the case when Thomas Nagel writes about life that “[it] is all we have and the loss of it is the greatest loss we can sustain” (1979, 1; cf. Baker, 2005, 16–17). Here he does not mean the loss of one’s status as an organism related to the particular research paradigm, but the loss of capacities “... like perception, desire, activity, and thought, [that] are so general as to be constitutive of human life” (Nagel, 1979, 2). According to Nagel, these capacities are good for the people who manifest them and are preconditions of whole human multidimensional well-being.

Robert Veatch, who has been involved in the debate on the definition of death almost from its very beginning, points out that when it comes to the determination of death in the context of bedside decisions, as well as for other public policy purposes, what is really at stake are “death behaviors.” Together with Lainie Ross, they observe that “[s]ocial and cultural changes take place when we label someone as dead.” (2016, 27). When death occurs, some behaviors become appropriate, such as the stopping of palliative treatment, the onset of scientific research on newly dead bodies, retrieval of organs for transplantation, mourning, reading a person’s will, disposing of a person’s “mortal remains,” assuming the role of widowhood or widowerhood, and perhaps much more (2016, 28). Theoretical biology, with its multiple concepts of an organism, cannot help us to establish when such behaviors are appropriate, and when they are not. This shows that in the context of bedside decisions, it is the moral rather than the biological sense of life versus death distinction that is at stake. Veatch and Ross observe that in this context, “death comes to mean... nothing more than the condition of some group of human beings for whom death behavior is appropriate” (2016, 31). Elsewhere Veatch, this time alone, defines “death” in the following way:

[It is] the name applied to the category of beings who no longer have full moral standing as members of the human community with all the rights of that community (including the right not to be killed). This is no longer a biological use of the term; rather, it is a moral and legal use, what I call the “social meaning of death.” One first identifies who it is who is no longer part of the community in the full sense, that is, those not protected by laws against homicide, those who no longer can claim health insurance, those for whom life insurance should pay off, those whose spouses appropriately assume widowhood, etc., and then calls that group dead by definition. (2015, 9)

Veatch believes that his definition of death leads to the identification of brain-dead patients as dead since, according to him, they lack “full moral standing” (2015, 10–11), and this is the reason why “death behaviors” become appropriate towards them.

While I sympathize with Veatch’s proposal, especially with his observation that what matters in the context of end-of-life care are not biological considerations on concepts of an organism but moral considerations on the ethical permissibility of some behaviors, I see two problems associated with his definition. First, just as Nair-Collins points out, “the mere assertion that normativity is analytically built-in to the concept of death, without giving further reasons for why the brain-dead lack moral status, is question-begging.” (2017, 542). I agree with this comment on Veatch’s idea, and I agree with Nair-Collins when he continues his criticism of Veatch’s position stating that “[w]hether brain-dead patients can be harmed or wronged, and whether they have significant moral standing, are precisely what is at issue” (2017, 542).¹⁴ Second, if we define death as a loss of full moral status as a member of the human community, death becomes something unique for humans, a consequence that is unwelcome at least for some scholars working in the field (Bernat, Clulver, and Gert, 1981; President’s Council, 2008, 97).¹⁵ In what follows, I will elaborate a concept similar to that of Veatch, and show how these two issues might be addressed without defining death in purely biological terms.

A Moral Status and the Moral Status

Veatch has defined death by utilizing a concept of moral status. One who is unfamiliar with philosophical ethics might wonder what this concept concerns precisely. To clarify this issue, it is helpful to recall Mary Ann Warren’s characteristics of moral status:

[An] important feature of the concept of moral status is that the moral obligations that are implied by the ascription of moral status to an entity are obligations to that entity. To violate an obligation arising from A’s moral status is to wrong A, and not merely some third party. For instance, if A’s moral rights have been violated, then it is A that has in the first instance been wronged, and on whose behalf others may complain. (1997, 10)

An upshot is that entities that have moral status are objects of at least some direct obligations, as opposed to merely indirect obligations. What is the difference between objects of moral status towards which we have some direct commitments, and things that have no moral status at all but might be objects of indirect moral obligations, becomes apparent thanks to another passage from Warren:

Suppose that you go on vacation, leaving your house in the care of a friend, who then sells your kitchen appliances and absconds. A moral wrong has evidently been committed; but it is obviously a wrong against you and not against your stove and refrigerator, which do not have moral status. Had you, on the other hand, left your pet pig in the care of a friend, who then sold it to a meat packing plant, then it would have been less clear that a wrong had been committed only against you. And if you had left your baby with a friend, who then sold him or her to a black-market baby broker, almost no one would doubt that a wrong had been committed not only against you but also against the child. In each case, your friend wrongs you by selling something that ought not to have been sold under those circumstances; but only in the third case does that which is sold have a moral status that most people would agree precludes its being sold under any circumstances. (1997, 10)

Entities that have moral status have “something” that make them the objects of direct obligations. A child from Warren’s story had this “thing,” and thus had moral status while a kitchen had no such “thing,” and therefore it had no moral status at all. More formally, we might define moral status in the following way: a given entity has moral status if, and only if, there are some reasons to act for the sake of this entity or its interests (Jaworska and Tannenbaum, 2014, 2018). Furthermore, the abovementioned “thing,” which the child from Warren’s story had, and the kitchen did not have, might be called “a ground of moral status” (Jaworska and Tannenbaum, 2018).

Having defined moral status, and bearing in mind what has been said about the ethical version of the life versus death distinction in a previous section of the article, we are ready to solve the second problem associated with Veatch’s definition of death: why should we define death in a general moral sense as a loss of “full moral standing as members of the human community” excluding all non-human beings from the set of objects that might die? Given the analysis of the concept of moral status, it is apparent that death in a general moral sense might be defined in a different way than Veatch proposed: as an irreversible loss of A’s moral status (whatever A is precisely). Although Veatch is right in defining death in close connection with the sphere of moral conduct, he is wrong to focus solely on death behaviors towards humans. If there is something that constitutes a basis for a moral status of other beings than humans, there might be death also in the ethical sense of other entities than humans.

This brings us to the first problem of Veatch’s definition of death: what exactly constitutes the grounds of a moral status, and do the brain-dead have this “thing”? Although an in-depth analysis of the possible grounds of moral status would require another article focused solely on the moral concept of death,¹⁶ a good starting point is the eclectic view on moral status that has been developed by Warren. It is a good starting point since it takes into account almost all of the grounds of moral status that are present in the debate, and are usually seen as competing, and adopts them within a single pluralistic theory. Warren claimed that there are, roughly speaking, six “things” which might make an individual the object of some moral obligations: being alive (in the strictly biological sense, whatever it means), sentience, moral agency, positive impact on ecosystem, being a subject of social relations (especially being the kind of entity which might be cared for), and being an individual whose moral status is conferred by other individuals that have moral standing (1997, 3–177).¹⁷According to Warren, each of these criteria is a sine qua non for some sort of direct moral obligations toward a given entity to occur. Therefore, each criterion entails some kind of moral status for the object which fulfills it. Depending on the criterion in question, moral status might be of differing degrees of strength, ranging from the lowest moral status (perhaps in case of being just biologically alive), which binds us very weakly, to full moral status, which entitles moral rights (e.g., in the case of moral agency). Warren’s analysis of moral status should perhaps be supplemented with the recent developments within the discussion on the grounds of full moral status. Recently, Agnieszka Jaworska and Julie Tannenbaum have proposed a criterion of incompletely realized sophisticated cognitive capacities, such as an incomplete capacity to be self-conscious, as a sufficient basis for full moral status (2014, 2018). Jaworska and Tannenbaum’s criterion entails that even severely mentally disabled people have full moral status, including the right not to be killed.

If we consider the seven above-mentioned criteria of moral status, one can realize that the moral concept of death, as presented here, is not to be objected to on the basis that, according to it, death becomes something unique for humans.¹⁸ We can speak not only about the “moral” death of a human being but also about the “moral” death of a dog (since dogs are sentient beings), and about the death of a piece of seaweed (since they are living organisms). Let me again recall that death in a general moral sense is to be defined as an irreversible loss of A’s moral status whatever A exactly is.

So we can speak about the life and death of all entities, which might fulfill at least one of the seven criteria for moral status. But what exactly can we say about the status of a brain-dead individual from the perspective of such a theory? The apparent problem is that even corpses which have lain peacefully at rest in their graves for many years, not to mention the brain-dead, might have some of the properties which make them a subject of some moral status according to Warren’s list. They can possess moral status due to a social relation of care. For the sake of an example, we might assume that family members embalmed them and cared for the resulting mummies as if they were members of society, and the mummies “responded” adequately by avoiding putrefaction. Moreover, human corpses, as well as the dead bodies of other animals, undoubtedly have some positive impacts on the ecosystem, another criterion of moral status in Warren’s view. Their moral status might also be conferred by adult people who undoubtedly have moral standing, just like the moral status of Uluru, which is, according to Warren, conferred to a rock formation by aborigines who believe that Uluru is a sacred place (1997, 171). Does the fact that mummies fulfill some of Warren’s criteria entail that they are living (ethically) people?

Obviously not. According to the moral definition of death, as proposed herein, death is an irreversible loss of A’s moral status, whatever A exactly is. Such a definition not only requires an analysis of the possible grounds of moral status, a task that is already completed, but also calls for the consideration of what kind of moral status is one of A’s. In other words, death is not only the cessation of moral status, but a cessation of the moral status of a given entity as such an entity. We have to realize that some objects might lose their moral status completely, possessing at the same time some sort of moral standing which is, however, not that of theirs, but is a moral standing of something else (e.g., of their remains). Therefore the fundamental question associated with the ethical definition of death which needs to be answered in the context of healthcare is the question “who are we?” or in McMahan’s words, who is “one of us?”¹⁹ We need to know who are the entities which are patients with their particular moral status, the beings which might cease to be patients, and cease to possess a patient’s moral standing.

Jeff McMahan has persuasively argued that if we want to come to any reliable conclusion about who we are, we should start with the notion of egoistic concern, realizing that there is a vast difference between our concern for our well-being and our concern for the well-being of others. This intuitive difference between the way we care for ourselves and the way we care for all other beings that are not to be identified with us should inform an analysis of our identity. To grasp the difference between egoistic and non-egoistic concern, it is helpful to recall Marya Schechtman’s words, who noticed that “we all know the difference between fearing for our own pain and fearing for the pain of someone else. The difference here consists not in degree—I may care more about the pain of my beloved than about my own—but in kind” (1996, 51–52). If we find a reliable account of what it is reasonable to care in an egoistic way, then we will also find a reliable account of “who we are” (McMahan, 2002, 51).

According to McMahan, if we test our intuitions with a series of thought experiments, we will conclude that we are embodied minds that are to be identified with the cerebral hemispheres that normally contain the content of our consciousness (2002, 3–94). We are not souls, nor organisms, nor minds detached from brains, since it is not rational to care in an egoistic way for such entities. Here I simply take it for granted that McMahan’s arguments about the model of egoistic concern are correct, since there is no space in this article to discuss them in much detail.²⁰

An upshot of McMahan’s analysis for the discussion of human death is that, even if embalmed corpses have some sort of moral status due to the relation of care, and might, therefore, be in some ethical sense some kind of living entities, they plainly do not have the moral status of a human or of a “being like us” in McMahan’s terms, because the cerebral hemispheres in an embalmed bodies are irreversibly and totally destroyed. We do not have any strict egoistic reasons to care for the well-being of corpses, even if there is such a thing. Nor has anyone else any reason to care for our corpses in a way in which she cares for us. Of course, we might care for corpses in the broad sense of egoistic concern, just as we care about an inheritance and the fate of our heritage, but we do not care for such things as for ourselves but rather for something whose fate might have some indirect impact on our well-being.²¹

If McMahan’s arguments are correct, which I believe is the case, and human beings are embodied minds, then it is clearly visible that only two of Warren’s criteria are of particular importance—sentience and moral agency—since only these criteria concern mental characteristics. Taking into account McMahan’s arguments, Jaworska and Tannenbaum’s criterion of incompletely realized sophisticated mental capacities also remains in force, since to possess imperfectly realized sophisticated capacity such as self-consciousness one needs to have at least some sort of mental life such as sentience (2014, 2018; fns. 25 and 48). Accordingly, if a given entity fulfills neither of these three criteria, human moral status cannot be ascribed, even though perhaps in some circumstances we might award them moral status of a different kind, and therefore also a life (in the ethical sense of this word) of a different kind. This surprisingly shows that a set of living things in the ethical sense is not a subset of living organisms in a biological sense, but rather that living organisms are a subset of living objects in an ethical understanding. Talking about inanimate objects as subjects of life that might “die” at some point, seems at odds with the common parlance, although we sometimes do so, for example when we talk about the so-called “heat death of the universe” (cf. Brown, Myrvold, and Uffink, 2009). Yet, more importantly, the “ethical” meaning of life and death has been present in philosophical thought dating back to Plato, who believed that objects like a piece of iron or bronze might die (in the ethical sense) due to factors which are “bad” for them. In the case of a piece of iron or piece of bronze, Plato believed that rust might cause their death as a loss of their moral status (See the Republic 608d-609a, trans. Allan Bloom).

IV. CONCLUSION

Are brain-dead patients alive or dead if we define human death as the irreversible loss of a human’s moral status? To answer this question, one needs to consider whether they—the patients—might regain their consciousness. I believe that the tests that are used for the determination of brain death (as opposed to clinical tests for the diagnosis of a permanent vegetative state, cf. Lizza, 2018a; fn. 26) allow us to determine with sufficient certainty that the cerebral hemispheres of a particular patient have been wholly and irreversibly destroyed, together with their capacity for sentience and moral agency.²² If this is the case, it might be concluded that brain-dead patients are really dead in the socially important sense of this word: they have lost their moral status. They are gone, although their remains might still be alive, both biologically (depending on the adopted concept of an organism) and ethically as objects of some moral status that is, however, not a moral status of patients but of some different kinds of beings.

Yet since this is a philosophical article and not a clinical one, the above conclusion is only conditional. In essence, it is based on the belief that a patient that is appropriately determined as brain-dead has cerebral hemispheres which have been irreversibly destroyed. If this condition is not met, then the whole conclusion does not follow. The recent case of Jahi McMath, a teenage girl who was diagnosed with brain death, and later had symptoms of a minimally conscious state (Shewmon, 2018a, 2018b; Truog, 2018), casts some doubts on this conclusion. Alan Shewmon hypothesizes that McMath had a global ischemic penumbra (GIP) that mimicked brain death. He states that currently “[t]here is no way to know what proportion of patients diagnosed BD might actually have been in GIP” (2018b, 169). If Shewmon’s hypothesis is right, and if he is correct in presuming that some subset of misdiagnosed patients have a “potential to improve to a level of MCS like Jahi, or possibly even higher,” then we should perhaps look for a different set of neurological tests for the determination of death. Taking into account the moral concept of death presented herein, such tests should be focused much more closely on the functioning of the cerebral hemispheres than current neurological tests for brain death.