Brain Death and the Formation of Moral Conscience

Abstract

In this article, we provide an update to Catholic ethicists and clinicians about the current status of Catholic teaching and practice regarding brain death. We aim to challenge the notion that the question has been definitively settled, despite the widespread application of this concept in medical practice including at Catholic facilities. We first summarize some of the notable arguments for and against brain death in Catholic thought as well as the available magisterial teachings on this topic. Although Catholic bishops, theologians, and ethicists have generally signaled at least tentative approval of the neurological criteria for the determination of death, we contend that no definitive magisterial teaching on brain death currently exists; therefore, Catholics are not currently bound to uphold any position on these criteria. In the second part of the article, we describe how Catholics, particularly Catholic medical practitioners, must presently inform their consciences on this issue while awaiting a more definitive magisterial resolution.

Summary:

Some prominent Catholic theologians and physicians have argued against the validity of brain death; however, most Catholic ethicists and physicians accept the validity of brain death as true human death. In this paper, we argue that there is no definitive magisterial teaching on brain death, meaning that Catholics are not bound to uphold any position on brain death. Catholics in general, but especially Catholic medical practitioners, should inform their consciences on this intra-Catholic debate on brain death while awaiting more definitive magisterial teaching.

The recent case of Jahi McMath has reopened a debate among bioethicists about the defensibility of brain death (Bernat 2014; Truog 2018).¹ Although Catholics have generally adhered to the bioethical and medical consensus in favor of these criteria, which are nearly universally accepted in contemporary medicine and law, there has long been a current of dissent and critique. The McMath case thus provides an opportune moment to revisit the intra-Catholic debate on brain death (Valko 2016).

The goal of our article is twofold. First, we will briefly outline some of the notable arguments both for and against the validity of brain death as true human death within Catholic, and broadly Thomistic, thought. Second, we will specifically address the Catholic clinician “on the fence” about brain death, so to speak and discuss the role of conscience within the Catholic moral tradition. As Catholics, we are called to form our consciences in accordance with authoritative Church teaching. Given the arguable lack of definitive teaching about the validity of brain death as true human death, we argue that Catholic clinicians are obliged to form their conscience through studying the brain death debate within Catholic thought—but we contend that individual clinicians can either accept or reject the validity of brain death in good conscience. Of course, brain death either is, or is not, true human death, but for the time being, Catholic clinicians must follow their well-formed conscience on this matter while they await more definitive Church teaching and clearer consensus among Catholic bishops, theologians, and ethicists.

Notable Catholic Defenses and Critiques of Brain Death

The Catholic debate on brain death comes out of varying interpretations of Aristotelian/Thomistic metaphysics. For Aquinas, a human being is a composite of substantial form and prime matter. Importantly, substantial form informs matter and integrates all the parts of the substance as a unified whole. Death is a substantial change, meaning that the unified whole ceases to be, and the component parts actually become what they were virtually. While it is clear, metaphysically, what death is, the difficulty lies in knowing when this substantial change has occurred.

Jason Eberl (2015) argues that brain death is a true human death because, in postnatal human life, the brain is the sine qua non without which a developed human body cannot be rationally ensouled. In other words, whole brain functioning serves as evidence of rational ensoulment in the postnatal stages of human life. The reason is that, following Aquinas, matter must be proportionate to form; a rational soul cannot enform just any matter. However, Eberl (2015) says, “the material disposition does not cause rational ensoulment…but Aquinas is clear God only ensouls with a rational soul a properly disposed human body” (p. 240).

Likewise, Melissa Moschella defends brain death from within a Thomistic framework. There is much overlap with Eberl, but Moschella (2016) adds that “the only way we can know with certainty that the material basis of the root capacities for self-integration and sentience have been lost is if the person has suffered total brain death” (p. 290). For Moschella, the best evidence that death has occurred is when control over vital function has been irreversibly lost, thus evidencing that the human being has lost the material basis of the root capacities for self-integration. While both Moschella and Eberl admit the brain-dead body appears to be integrated and unified, they both draw on the recent work of Maureen Condic to argue that this is nothing more than masked coordination.

Condic (2016) distinguishes between integration and coordination to defend brain death against the charge that the brain-dead body is a severely disabled human being. For Condic, integration is the mark of a unified substance. Organisms are integrated because their parts act autonomously for the good of the whole; integration is a self-directedness toward the good of the whole. Coordination occurs locally between parts of the whole or can occur globally, but the parts are coordinated as independent parts. For Condic, whole brain death evidences a substantial change in which the tissues, cells, and other components of the human body cease to act autonomously toward the good of the whole human being. Rather, these component parts now act in a coordinated fashion as independent parts.

Pace Condic, Nicanor Austriaco (2009), a Dominican moral theologian and biologist, argues that only the absence of bodily integrity can truly indicate death. Bodily integrity, as the manifestation of organismal organization, allows a human being to exist and grow: a stable, brain-dead child with appropriate somatic support will grow into a brain-dead adult. In other words, whereas Condic, Eberl, and Moschella would take the apparent integration and unity of the brain-dead body as masked coordination, Austriaco holds that the apparent bodily integrity of the brain-dead body is evidence that the body is still integrated and therefore a living human being, albeit a severely disabled one. Furthermore, Austriaco thinks that the well-documented functions that persist in the brain-dead body, such as homeostasis, neuro-hormonal regulation, and the gestation of a fetus, all cast a doubt on Condic’s distinction between integration and mere coordination.

Christian Brugger argues that the clinical evidence casts doubt on brain death as true human death. Brugger thinks there is reasonable doubt that brain-dead individuals are, in fact, dead. Following the Thomistic understanding of death as a separation of soul from body, Brugger highlights the difficulty in knowing when death has occurred, empirically speaking. Brugger (2016) argues that “reasonable doubt exists when the conclusion that what appears to be holistically organized is in fact holistic organization remains a reasonable hypothesis in light of the best evidence to the contrary” (p. 336). For Brugger, Catholics ought to treat brain-dead bodies as if they were living human beings because, even in cases in which the clinical diagnosis of brain death is made properly, we cannot know with conceptual or moral certitude that brain death is true human death.

Although physicians might be tempted to regard this debate among ethicists as unrelated to the clinical context in which the neurological criteria are widely accepted and applied, the clinical concept of brain death cannot ultimately be detached from such metaphysical arguments about the meaning of life and death. The notion that the clinical criteria for brain death can operate independently of any such metaphysic is itself a moral and metaphysical argument. Indeed, the criteria themselves implicitly rest on certain debatable metaphysical and epistemological premises. They assume, for example, an empiricist framework in which the reality of the concept of death is available to sensory experience and scientific measurement, and therefore, any definition of death that cannot be stated in empirical terms must be flawed. Yet medical science alone is insufficient to demonstrate the truth or falsehood of these propositions, which require metaphysical and epistemological arguments. In effect, then, those who rely unquestioningly on the clinical criteria for brain death beg the question against ethicists such as those noted above who doubt the philosophical framework that sustains those criteria.

Furthermore, Catholics in particular cannot separate the concept of death from speculative metaphysical arguments, for as the Creed states, Catholics worship a God who, in the person of Jesus Christ, “suffered death,” and therefore questions about the meaning of death are inevitably bound up with questions about God. As a result, Catholics require philosophical and theological clarity about the concept of death in order to contextualize and assess the validity of any scientific attempt to explain death. In order to be fully acceptable to Catholics, the neurological criteria for death must not contradict other aspects of Catholic belief, and as we have seen, Catholic ethicists are presently disputing this very question.

In summary, the debate among Catholic theologians and ethicists regarding brain death remains unsettled. While it is probably true that almost all Catholic physicians and a majority of Catholic bioethicists support brain death, a substantial number of prominent Catholic thinkers have objected. We think it is important to emphasize that, as Catholics, we should not be searching for mere consensus or a majority ruling; either brain death is true human death or it is not. As Brown (2007) has argued, the Catholic tradition of metaphysics may eventually offer a way forward in this debate. In the meantime, the clinical evidence relevant to brain death remains complicated and difficult to interpret, and all Catholic thinkers agree that the clinical evidence is of paramount importance. Thus, we arrive at a critical junction: as a Catholic clinician informed of the Catholic debate on brain death, what ought one do? We turn to the magisterial teachings on brain death, before ending with a discussion of conscience.

Magisterial Teaching on Brain Death

While no single document provides a complete outline of the structure of the different levels of magisterial teaching, the Congregation for the Doctrine of the Faith (CDF) published a doctrinal commentary on the Professio Fidei in which they discuss the levels of magisterial teaching on matters of faith and morals in helpful detail. The highest level of magisterial teaching are those dogmas “contained in the word of God, written or handed down, and defined with a solemn judgement as divinely revealed truths either by the Roman Pontiff when he speaks ‘ex cathedra,’ or by the College of Bishops gathered in council, or infallibly proposed for belief by the ordinary and universal Magisterium” (CDF 1998, no. 5). Examples include the various christological dogmas, the dogma of the real presence, and the prohibition against the direct killing of an innocent human being (CDF 1998, no. 11). Because of the divine origin of these dogmas, they require “the assent of theological faith” by all the faithful and anyone who denies them is guilty of heresy (CDF 1998, no. 5). The next level of magisterial teaching refers to “all those teachings belonging to the dogmatic or moral area, which are necessary for faithfully keeping and expounding the deposit of faith, even if they have not been proposed by the Magisterium of the Church as formally revealed” (CDF 1998, no. 6). Examples of these teachings include the doctrine of papal infallibility and the prohibition against euthanasia (CDF 1998, no. 11). The doctrines in this second level of the magisterium bear either historical relation or logical connection to those revealed truths found in the highest level of magisterial teachings, and they require the full assent of the faithful in recognition of the Holy Spirit’s assistance to the magisterium (CDF 1998, no. 8).

The final level of magisterial teachings includes “all those teachings—on faith and morals—presented as true or at least as sure, even if they have not been defined with a solemn judgement or proposed as definitive by the ordinary and universal Magisterium” (CDF 1998, no. 10). These teachings “require religious submission of will and intellect,” but to deny these teachings would be considered erroneous or rash, not a matter of heresy (CDF 1998, no. 10). Rather than providing concrete examples of this level of magisterial teaching, the CDF (1998) says the following:

As examples of doctrines belonging to the third paragraph, one can point in general to teachings set forth by the authentic ordinary Magisterium in a non-definitive way, which require degrees of adherence differentiated according to the mind and the will manifested; this is shown especially by the nature of the documents, by the frequent repetition of the same doctrine, or by the tenor of the verbal expression. (no. 11)

Since the pope and those bishops in communion with him are the “authentic teachers of the faith” (CDF 1998, no. 4), then teachings promulgated by the pope, the college of bishops, or individual bishops that satisfy the conditions of this passage would fall into this final level of magisterial teaching. Importantly, the teachings of this final level of magisterial teaching can vary in degrees insofar as these nondefinitive teachings are promulgated in various ways and in different degrees. In Donum Veritatis, the CDF (1990) states:

When it comes to the question of interventions in the prudential order, it could happen that some Magisterial documents might not be free from all deficiencies. Bishops and their advisors have not always taken into immediate consideration every aspect or the entire complexity of a question. (no. 24)

This passage might appropriately be applied to Church statements on advances in medical technology and practice, which are complex and often require sophisticated scientific expertise to understand fully. With this brief discussion of the levels of magisterial teaching in mind, we now turn to the Catholic teachings on brain death.

Papal teaching regarding brain death is rather limited, as popes have rarely addressed the topic directly. Famously, in his 1957 “Address to an International Congress of Anesthesiologists,” Pope Pius XII (1957) stated that the determination of human death was within the domain of medical science. He also opined that, if there is uncertainty about the moment of death, we must err on the side of life. Pope Saint John Paul II dealt more directly with brain death in an “Address to the International Congress of the Transplantation Society” from 2000. Following the pronouncement of Pius XII in 1957 that the determination of death in particular cases lies “outside the competence of the Church,” John Paul II reaffirms that the Church does not make such technical decisions. He states, however, that “the criterion…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” (Pope John Paul II 2000, no. 5). As a result, he says, “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,’…the necessary and sufficient basis for an ethically correct course of action” (Pope John Paul II 2000, no. 5). He also calls for the informed consent of surrogate decision makers prior to proceeding with organ donation in such cases. John Paul II, then, concludes that a Catholic healthcare worker may rely upon whole brain death criteria in the determination of death, but he also stresses the importance of each practitioner’s use of discernment in the application of these criteria.

In 2008, Pope Benedict XVI (2008) addressed an international conference on organ donation organized by the Pontifical Academy for Life. Although he cites similar themes to those in John Paul II’s statement, he does not discuss the topic of brain death directly. Rather, he reaffirms the principle of respect for life and calls organ donation “a unique testimony of charity.” He also emphasizes the importance of scientific and ethical consensus on criteria for death:

The individual vital organs cannot be extracted except ex cadavere… 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 donator must always prevail so that the extraction of organs be performed only in the case of his/her true death. (Pope Benedict XVI 2008).

Thus, although Benedict XVI does not mention brain death explicitly, his remarks seem to make oblique reference to the residual controversy on brain death, and he indicates that there ought to be clear consensus on the issue before proceeding.

In the Ethical and Religious Directives for Catholic Healthcare Services, the United States Conference of Catholic Bishops (2018) states that the “determination of death should be made by the physician or competent medical authority in accordance with responsible and commonly accepted scientific criteria” (no. 62). While “brain death” is not explicitly mentioned, it is certainly a “commonly accepted criteria” for determination of death. In the section on determination of death in the New Charter for Health Care Workers, the Pontifical Council for Pastoral Assistance to Health Care Workers (2017) specifically mentions the determination of death by neurological criteria and cites John Paul II’s (2000) address as the authoritative reference authorizing determination of death by neurological criteria (p. 86).

The Pontifical Academy of Sciences, a consultative body to the Holy See whose conclusions do not carry formal magisterial weight, has addressed the debate on human death four times. At the request of John Paul II, the Pontifical Academy of Sciences convened a working group on “The Artificial Prolongation of Life and the Determination of the Exact Moment of Death” in 1985. The working group primarily grappled with the emerging diagnosis of vegetative state and was composed solely of medical scientists. The working group concluded in agreement with the definition of death per the Uniform Determination of Death Act, although they specified that an electroencephalogram must be done twice to ensure the irreversibility of brain functioning (Pontifical Academy of Sciences Working Group 1985, 114).

After the publication of the 1985 working group proceedings, philosophers and theologians questioned their conclusions and some directly opposed them. The Pontifical Academy of Sciences convened a working group on “The Determination of Brain Death and Its Relationship to Human Death” in 1989 at the request of John Paul II—here, philosophers, theologians, and lawyers joined the medical scientists. One departure from the 1985 working group was terminological: the 1989 group discussed the state of death rather than the exact moment of death. Additionally, the 1989 working group emphasized the importance of framing the debate within the body/soul union of the Catholic tradition. The conclusions of this meeting were largely in agreement with the 1985 group, further validating the neurological criteria as a valid determination of human death within Catholic thought (Pontifical Academy of Sciences Working Group 1989).

Shortly before his death in 2005, Pope John Paul II (2005) asked the Pontifical Academy of Sciences to study brain death again, utilizing updated medical literature. Thus, a working group on “The Signs of Death” was assembled. However, this working group was largely critical of brain death as valid human death. Notably, the 2005 proceedings were not published by the Pontifical Academy of Sciences as the previous working group proceedings had been. Roberto de Mattei published several of the critical essays in an edited volume in 2006 which was later translated into English (de Mattei 2009).

Then, in September 2006 and at the request of the newly elected Benedict XVI, the Pontifical Academy arranged a second working group on “The Signs of Death.” In the preface to the 2006 conference, Bishop Sorondo briefly mentioned the 2005 working group of the same name; he called it a “preliminary meeting” that helped shape the contours of the debate but did not refer to the majority opinion against brain death (Pontifical Academy of Sciences Working Group 2006). Nearly all participants endorsed a summary statement on brain death in which they argue that the neurological criteria for the determination of death are consistent with Catholic tradition and Catholic anthropology. All participants agreed that precise language must be used when debating this topic, as there seems to be a disconnect between “death” and “brain death” in the general public. Shewmon and Spaemann dissented from the majority. The conference proceedings included the dissenting argument by Shewmon and Spaemann as well as a highly critical majority response to the dissenting argument. In 2008, the Pontifical Academy of Sciences (2008) published a report that included the majority opinion of the 2006 working group in favor of brain death and the highly critical majority response to the dissenting argument, but it did not include the dissenting argument by Shewmon and Spaemann.

Collectively, these papal statements, episcopal documents, and curial reports constitute the magisterial teaching on brain death. Several conclusions can be drawn. First, although there seems to be a preponderance in favor of accepting the whole brain definition of death, there is ongoing debate both among Catholic scholars and within the groups of advisors assembled by the Vatican. Even though a poll of these individuals would likely show that most of them approve of the neurological criteria, the presence of dissenting voices demonstrates a lack of solid consensus.

Second, even if such consensus existed, the magisterial statements produced to date have not been definitive. As of now, we lack a “manifestly evident” statement of the Church’s teaching in a document such as a papal encyclical or a statement of a general synod of bishops, either of which would generally be binding on Catholics. Even the most direct statement in favor of whole brain death criteria, from John Paul II, leaves room for doubt about brain death in individual cases: if the criteria are rigorously applied, then they seem satisfactory. One can contrast this situation with the status of Catholic teaching on the use of artificial contraception, an issue settled by the magisterium on which there is ongoing debate among Catholic ethicists and widespread dissent from this teaching among lay Catholics. Not only did the twentieth-century papal encyclicals Casti Connubii (Pope Pius XI, 1930) and Humanae Vitae (Pope Paul VI, 1968) teach clearly that Catholics may not make use of contraception, but also this teaching finds support in the longer tradition of Catholic theology and in the Church Fathers. Augustine (1887), for example, argued that the use of “poisonous drugs to secure barrenness” was sinful (I.17). By contrast, Catholic teaching on brain death simply has not yet attained the same definitive status. As Nguyen (2018) notes in her recent book on brain death and organ donation (p. 457), Donum Veritatis teaches that

When it comes to the question of interventions in the prudential order, it could happen that some Magisterial documents might not be free from all deficiencies. Bishops and their advisors have not always taken into immediate consideration every aspect or the entire complexity of a question. (CDF 1990, no. 24)

Given the complexity of the debate on brain death, it seems appropriate to read current magisterial teachings on brain death with this point from Donum Veritatis in mind. The Congregation for the Doctrine of Faith also highlights the importance of assessing “the insistence with which a teaching is repeated” when judging the accuracy of an intervention in the prudential order (CDF 1990, no. 24). Unlike the Church’s teaching on contraception referenced above, the magisterium lacks definitive guidance on brain death in the first place, so we naturally lack any “repeated” teaching on this matter. Furthermore, Nguyen (2018) thinks Benedict XVI’s 2008 address is significant insofar as he did not reference John Paul II’s 2000 address or mention the neurological criteria by name (p. 484). For Nguyen, Benedict XVI’s omission and explicit emphasis on “true death” indicates that the debate on brain death was far from settled for Benedict XVI.

Third, although the Church’s statements in favor of whole brain death deem it “acceptable,” they also maintain the importance of ongoing discussion of this issue and of the need for each practitioner to arrive at what John Paul II called “moral certainty” in individual cases. We contend that Catholics who lack such moral certainty, either in general or in particular cases, are not presently outside the bounds of Catholic teaching. To support this claim, in the next section of this article we respond to John Haas’s argument that the magisterium has taught definitively in favor of the validity of brain death as true human death.

Debating the Weight of the Magisterial Teaching on Brain Death

In 2011, Haas (2011) published a paper in National Catholic Bioethics Quarterly entitled “Catholic Teaching Regarding the Legitimacy of Neurological Criteria for Determination of Death.” This paper reviews the Church’s magisterial teaching on brain death “to show that Catholic may in good conscience offer the gift of life through the donation of their organs after death as determined by those criteria” (p. 279). The impetus for Haas’s paper largely comes from recent work by Paul Byrne and Christian Brugger, whom Haas thinks as “mistaken pro-life Catholics” (p. 280). Haas thinks Byrne is “at odds with the current teaching of the magisterium of the Catholic Church” because Byrne has repeatedly and vociferously argued that those declared brain-dead are still alive, rending the current practice of organ recovery after brain death tantamount to murder (p. 281). Unlike Byrne, Brugger does not reject brain death absolutely, but rather argues there is reasonable doubt that the neurological criteria provide moral certitude for a declaration of death. Haas worries that Bryne and Brugger “run the risk of unsettling the consciences of the faithful on a life-and-death ethical matter for which the authentic magisterium of the Church has provided clear guidance” (p. 294). But a closer look at Haas’s paper reveals that the weight of the magisterial teaching on brain death is susceptible to further debate among theologians and ethicists.

Before turning to the magisterial teaching on brain death, Haas briefly discusses the problem of misdiagnosing brain death. As the American Academy of Neurology guidelines on brain death indicate, there is, and always will be, variability in the clinical examination of brain death because individual physicians will always have a certain amount of discretion when performing a brain death exam (Wijdicks et al. 2010). Included in this section is a brief discussion of pregnancy and brain death. Haas (2011) says:

There have also been reports of supposedly brain-dead pregnant women who continued to gestate their children, sometimes for months, until the children were viable. Almost always, though, these have been cases of pregnant women in very precarious conditions who were being kept alive by mechanical support, which is then removed after the child has been born. One headline in a national newspaper declared, “Brain-Dead Virginia Woman Dies after Giving Birth.”14 The article stated that the woman had been declared “brain dead” on May 7 and was delivered of the baby three months later on August 3. It went on to say that she was given last rites of the Catholic Church before life support was removed and she died. However, no one dies two deaths, and the Church does not administer sacraments to the dead but to the living. The woman obviously was not already dead. (p. 284)

While we certainly agree that there are cases in which “women in very precarious conditions” are “kept alive by mechanical support, which is then removed after the child has been born,” we do not agree with what Haas seems to suggest in this paragraph: namely, that the diagnosis of brain death precludes the possibility of successfully gestating a fetus to delivery. A meta-analysis from 2010 looked at thirty case reports of pregnant, brain-dead mothers—including cases in which a brain-dead mother was somatically supported for months and the baby was successfully delivered (Esmaeilzadeh et al. 2010). When Haas says, “the woman obviously was not already dead,” he seems to imply one of two things. First, the woman was not dead because she was given last rites after a successful delivery before life support was removed and “the Catholic Church does not administer sacraments to the dead.” The other reason Haas concludes that the “woman obviously was not already dead” might be that he thinks the diagnosis of brain death precludes the possibility of successfully gestating a fetus to delivery. In other words, if a woman is somatically sustained and is able to successfully gestate a fetus to delivery, then that is proof she was not dead when diagnosed as brain-dead. Concerning the latter possibility, such a line of argumentation is akin to that of brain death critics Nicanor Austriaco and Alan Shewmon who both highlight pregnancy as a brain-mediated function that persists after the diagnosis of brain death to argue that brain death is not true human death. However, it seems prima facie impossible to both reject the possibility of successfully gestating a fetus to delivery and uphold the validity of the neurological criteria, since cases of pregnant, brain-dead women are easily found in the literature. Whatever the reason Haas implies that brain death precludes the possibility of successfully gestating a fetus to delivery, his attempt to address legitimate concerns about the misdiagnosis of brain death certainly seems weaker because of it.

Immediately following his section on misdiagnoses, Haas turns to the magisterial teaching on brain death. He begins by saying that “because of such reports [e.g., pregnant brain-dead women], and because of deeper philosophical and medical opinions, some Catholics adamantly refuse to accept the legitimacy of neurological criteria for determining death,” which, in turn, “can be very unsettling to the consciences of the faithful” (Haas 2011, 284). To ease the consciences of the faithful, Haas utilizes several quotes from John Paul II’s 2000 address. However, as Nguyen (2017^{, 2018}) argued in a paper in The Linacre Quarterly and in a chapter of her recent book on brain death and organ donation, the magisterial weight of this 2000 address is debatable (pp. 457–82). Nguyen (2018) dissects the address and highlights three presuppositions that provide the basis for John Paul II’s tentative endorsement of brain death:

1. The phenomenon of somatic disintegration that manifests the consequence of separation of the soul from the body.

2. A twofold requirement concerning the medical aspect of the neurological standard: (i) validation and global consensus of the clinical test criteria and (ii) rigorous application of the neurological standard (and therefore, of its clinical test criteria).

3. Coherence with the fundamental elements of sound Christian anthropology, as held and taught by the Church (p. 480).

Nguyen ultimately thinks that philosophical and empirical barriers exist to the fulfillment of these presuppositions. Even if one thinks—as many Catholic theologians and ethicists do—that brain death is consistent with a sound Christian anthropology, legitimate concerns about variability in the clinical testing for brain death is well-documented in the literature (Wijdicks et al. 2010). Furthermore, Nguyen (2018) notes that John Paul II himself did not reference this 2000 statement during the last five years of his pontificate nor did his successor, Benedict XVI, in an address on organ donation in 2008 (p. 457). While Haas notes the “key importance” of the 2000 address, Nguyen provides reason to debate its relative magisterial weight.

After quoting this address at length, Haas (2011) says that “despite the key importance of this address, consideration of the legitimacy of these criteria was not new in the Church’s reflections on death” (p. 286). Here, Haas briefly recounts the findings of the 1985, 1989, and 2006 Pontifical Academy of Sciences working groups on brain death. He ends this section by saying “no pope, no dicastery of the Holy See, and no official consultative body to the Holy See has ever called into question this conclusion of the academy” (Haas 2011, 287). What about the 2005 working group?

We readily admit it is beyond the scope of this article to fully address the questions concerning the 2005 Pontifical Academy of Sciences working group on “The Signs of Death,” but we wish to highlight some of the evidence for this group as the findings of this working group challenge Haas’s claim. In February 2005, John Paul II wrote a letter to the Pontifical Academy of Sciences. Toward the beginning, he states that “the Pontifical Academy has chosen to dedicate this session of the Study Group—as on two earlier occasions during the 1980s—to a theme of particular complexity and importance: that of the ‘signs of death,’ in the context of the practice of transplanting organs from deceased persons” (Pope John Paul II 2005, 1). This passage alone seems to confirm that a working group on “The Signs of Death” met in 2005. However, in a preliminary section of the proceedings for the 2006 working group on “The Signs of Death,” Bishop Sorondo says the following:

In response to a request made by the Pope, the Pontifical Academy of Sciences then held a preliminary meeting on “The Signs of Death” on 3-4 February 2005 to re-study the signs of death and verify the validity of the criterion of brain death, entering into the contemporary debate of the scientific community on this issue. This preliminary meeting helped to clarify the contours of the debate, and while it was being held, and just before his death, John Paul II sent a letter to the Academicians and participants asking that the proceedings be subsequently presented to the Congregation for the Doctrine of the Faith. This was duly done. (Pontifical Academy of Sciences Working Group 2006, xix)

Yet nothing in the 2005 letter to the working group on “The Signs of Death” indicates that the 2005 group was a preliminary meeting meant to “clarify the contours of the debate.” John Paul II makes a direct comparison between the 2005 working group and the 1985/1989 working groups, since “The Signs of Death” was the topic of the 2005 working group “as on two earlier occasion in the 1980s.” Furthermore, there is no mention, explicit or implicit, of the need for another working group of the same name and on the same topic. Likewise, as John Paul II and the passage quoted above from a preliminary section of the proceedings of the 2006 working group note, the proceedings of the 2005 working group were meant to be reviewed by the CDF. Yet the proceedings were not published, as was the case in the 1985, 1989, and 2006 working groups on the same topic. To quote Alan Shewmon (2012):

What transpired between the two conferences and afterwards will supply abundant material for Church historians researching the kinds of intrigues and politicking that can take place within the walls of the Vatican. This is not the place to enter such details; interested readers can get the gist from a web-based article by Mercedes Arzu Wilson, who co-organized the 2005 conference with the Pontifical Academy. (p. 483)

Although, as we have stated, addressing all the questions and concerns related to the 2005 working group on “The Signs of Death” lies beyond the scope of this article, the evidence we have provided at least casts doubt on Haas’s (2011) strong claim that “no pope, no dicastery of the Holy See, and no official consultative body to the Holy See has ever called into question this conclusion of the academy” (p. 287). Haas concludes that “Catholics may in good conscience offer the gift of life through the donation of their organs after death” and “Catholics may in good conscience receive such organs” (p. 299); but, while not disagreeing with Haas’s assertion, we ask the following: may Catholic clinicians conscientiously object to participate in brain death determination and deceased organ transplantation? Put another way, can the faithful formation of conscience lead to different conclusions with regard to brain death and deceased organ transplantation?

Brain Death and the Formation of Conscience

The current state of Catholic teaching authorizes Catholics to participate in brain death declarations and in organ transplant activities, should they judge such acts acceptable. However, it also seems clear that they are not morally obligated to do so. Rather, Catholics must work to inform their own consciences. Aquinas (1948) teaches that conscience is not a “power,” a mental faculty, but rather an act, namely the act of arriving at a sound moral judgment about what how one ought to act in particular circumstances (I, q. 79, a. 13). In order to make such a judgment, one must first attain sufficient knowledge of general moral truths that one can then apply practically. For Catholics, this moral code consists of the contents of the natural law and the doctrines proclaimed definitively by the Church. For questions on which the natural law and Church doctrine are not decisive, Catholics have a responsibility to draw from related teachings and from current Catholic scholarship to inform this act of practical reason. Because the judgment of a rightly ordered conscience is “the delivery of a divine command,” according to Aquinas (1954), the violation of conscience is a moral error and a sin against God not only for an individual who chooses to act against conscience but also for anyone who compels another individual unwillingly to do so (q. 17). Ultimately, each individual has the responsibility to carry out this process of reasoned judgment regarding his or her own actions.

Contemporary Catholic teaching has generally confirmed these Thomistic insights about conscience. According to the Catechism of the Catholic Church (CCC), conscience “is a judgment of reason whereby the human person recognizes the moral quality of a concrete act” (n. 1778). In such a judgment, one “perceives and recognizes the prescriptions of the divine law,” so one is “obliged to follow” one’s conscience faithfully (CCC, no. 1778). Therefore, each individual “has the right to act in conscience” and must never be forced to act contrary to it (CCC, no. 1782). Yet conscience is not infallible, and because it can err, one has a responsibility to educate one’s conscience, guided above all “by the authoritative teaching of the Church” (CCC, no. 1785). Only a well-formed conscience “formulates its judgments according to reason, in conformity with the true good willed by the wisdom of the Creator” (CCC, no. 1783).

One might believe in good conscience, for example, that although whole brain death criteria are theoretically sound, we presently lack any way to diagnose whole brain death accurately enough to ensure that death has occurred prior to the removal of organs for transplantation. Furthermore, as we have shown, some Catholic theologians and ethicists have drawn on the tradition of the Church, particularly the Thomistic tradition, to mount a critique of whole brain criteria. Catholics working in health care who may be asked to participate to some extent in determination of death and organ transplantation, such as neurologists and transplant surgeons, have a responsibility to account for these arguments as well in the formation of their consciences. As noted above, Catholics must take care not to separate clinical science from philosophical and theological claims. For Catholics, the soundness of the neurological criteria depends not only on medical science but also on their coherence with Catholic belief, and therefore Catholic practitioners should read arguments on both sides of the ongoing Catholic debate on brain death and determine whether or not they can make use of these criteria in good conscience. In so doing, they should bear in mind the weighty consequences of such a decision. If the contemporary medical concept of brain death is irreconcilable with Catholic teaching, then even the most meticulous application of the neurological criteria cannot render a judgment of brain death a morally good human act. Nothing less than the salvation of these practitioners’ souls is at stake, and they should therefore assess the concept of brain death with the utmost moral seriousness.

Catholics who conclude in good conscience that the neurological criteria are sound may decide to participate directly in transplantation activities. In so doing, they have a responsibility, following John Paul II, to ensure that the criteria are “rigorously applied,” in order to avoid contravening the inviolability of human life, a central aspect of Catholic medical ethics. They should evaluate each case of potential brain death individually and ensure that the standard of moral certainty about death, the highest level of certainty possible in such matters of practical reason, can be met before proceeding with organ transplantation. As Jeffrey Bishop has observed, contemporary medicine at times takes on a mechanical quality, moving the patient efficiently through the system until the patient’s death, a moment that itself is managed medically through curative or palliative care beforehand and with organ transplantation afterward (Bishop 2011). Such efficiency risks making decisions about death seem overly routine and even mundane, not requiring any particular attention that might delay the process. In such a setting, Catholics must have the courage to resist this momentum by taking the time to evaluate each patient properly and, when necessary, disagreeing with their colleagues in order to safeguard human life.

On the other hand, Catholic practitioners may, after reflection and discernment, harbor doubts about whole brain criteria. In such cases, they have a responsibility to avoid complicity with actions they have judged morally wrong. Catholic teaching has recognized distinctions in the level of cooperation with such acts. Provided the Catholic healthcare worker does not intend any application of the neurological criteria for death, he or she can only cooperate materially, not formally, with this action. Yet there are several ways in which he or she may be asked to engage in immediate or proximate mediate material cooperation. A Catholic neurologist, for example, may be consulted to perform an exam leading to a diagnosis of brain death, or a Catholic transplant nurse may be tasked with retrieving organs removed from a brain-dead patient. These types of cooperation are generally to be avoided by those with conscientious objections, even in cases such as these in which there is minimal risk of scandal because the Church does not definitively consider the primary act morally wrong.

Catholics who may find themselves in such situations should familiarize themselves with their institution’s policies regarding brain death. If they cannot conscientiously participate, it seems reasonable to refer to a different provider. Such Catholic physicians may also wish to share their reservations about the whole brain criteria with their patients beforehand, if possible. Although some ethicists might want physicians to conceal these concerns from their patients, others have recently argued that physicians may appropriately disclose their own beliefs and even their biases within a strong physician–patient relationship (Truog et al. 2015). Such honest admissions recognize that, as moral agents themselves, physicians cannot maintain a strict morally neutral “view from nowhere” on important ethical issues, and indeed their unspoken moral beliefs may subtly influence their recommendations to patients, perhaps unconsciously. It may be better, then, for physicians to admit their beliefs and invite patients to share theirs in order to promote an open conversation regarding determination of death and organ transplantation and to develop a plan of action for situations in which the whole brain criteria could be applicable.

Perhaps more importantly, all Catholic facilities and practitioners should be willing to defend the conscience rights of providers in general. As we have seen in other contexts, some ethicists believe that practitioners may legitimately be compelled by appropriate authorities to act contrary to their consciences. Savulescu (2006), for example, has argued that “conscientious objection is wrong and immoral” when it conflicts with a “medical duty,” which for him includes the provision of “legally permitted” care, and those who cannot comply “should not be doctors” (pp. 294–97). Yet, as others have responded, conscience is so central to the moral life and even to the medical act, which itself requires the interpretation of general ethical principles in concrete situations, that attempts to override conscience risk undermining the morality of the entire practice of medicine.

Such a contention certainly seems consistent with the importance of conscience in Catholic teaching. All Catholics of varying opinions on brain death have an interest in maintaining practitioners’ ability to exercise discretion according to their consciences. As the Catholic debate on brain death proceeds, then, all sides can at least agree to allow space for conscientious decision-making as we await a more definitive resolution. The discussion ought to proceed, then, according to the statement of Pope Saint John XXIII (1959) in his 1959 encyclical Ad Petri Cathedram: “in essentials, unity; in doubtful matters, liberty; in all things, charity” (no. 72).

In this article, we have argued that there is a lack of not only consensus among Catholic theologians and ethicists but also of definitive magisterial teaching on the validity of whole brain criteria in the determination of death. Although Catholic ethicists and official Church teaching have generally moved toward acceptance of these criteria, there remains a substantial minority arguing from well-established principles of Thomistic against the validity of brain death as true human death. Consequently, Catholic clinicians practicing under the current transplantation policies, in which these criteria are frequently applied, must inform their consciences in order to determine whether and to what extent they can participate in transplantation activities. We have briefly summarized Church teaching on conscience and sought to apply it to some situations in which Catholic healthcare workers might find themselves. As the conversation on brain death within bioethics continues, Catholics ought to acknowledge this controversy and discuss openly how best to continue caring for patients in the meantime. We hope that our article has contributed to this important and necessary endeavor.

Biographical Notes

Christopher Ostertag, MA, is a doctoral candidate in theology and healthcare ethics at Saint Louis University.

Kyle Karches, MD, MA, is an assistant professor of medicine at Saint Louis University as well as a PhD candidate in healthcare ethics at Saint Louis University