Implications of John Kavanaugh’s Philosophy of the Human Person as Embodied Reflexive Consciousness for Conscientious Decision-making in Brain Death

Abstract

This article reviews the work of Fr. John F. Kavanaugh, SJ (1941–2012), on the human person as embodied reflexive consciousness (RC). It then analyzes the implications of his work for the subject of brain death. Case studies are reviewed which suggest that RC persists unchanged in the setting of substantial brain trauma. RC is posited as an immaterial endowment, rather than a material phenomenon, which is fully present so long as a person is alive and becomes absent when a person is truly dead. As the endowment which makes possible ethical action and is common to all human persons, RC becomes the foundation of human equality. Empirically ascertaining the presence or absence of RC may not be possible—its demonstration may be precluded by physical immaturity or damage. Therefore, until the human person (and not only the brain) has wholly and irreversibly died, RC should be assumed to be present. The current criteria for brain death are incapable of ensuring that the entire brain has permanently and irreversibly ceased to function. Therefore, RC may still be present in those whose organs are harvested after meeting the criteria for brain death. As such, a human person would still be present, albeit a wounded human person. Based on this, a healthcare provider could (and likely should) in good conscience oppose the use of brain death criteria for purposes of harvesting vital organs. On a societal level, utilizing brain death criteria to declare a person dead has the potential in any given case to violate the dead donor rule, and as such conflicts with the widely held moral consensus that organs should only be harvested from those who are dead. Healthcare providers should advocate for medicolegal frameworks consistent with their informed consciences.

This article is written for healthcare workers of all faith traditions (or no faith tradition) who seek to inform their consciences regarding the topic of brain death as it pertains to harvesting vital organs. Conscience is simply a practical moral judgment. Conceptually, it can be thought of as a “courtroom” of moral action. The conscience acts as both lawyer and judge, presenting evidence and then weighing its merits. There are two moral obligations as regards conscience: (1) to always follow one's conscience and (2) to make sure that one's conscience is properly formed with data, evidence, and sound reasoning. This article seeks to aid in regard to the second task. An excellent example of the process of conscientious decision-making as pertains to the topic of brain death is William Perez’s (2019) article “The Trouble with Anesthetizing the Dead.”

Public opinion is generally positive regarding organ donation, and organ transplantation is performed at many hospitals throughout the nation. However, there is increasing controversy regarding the validity of the neurologic criteria for declaring death (brain death), which are often utilized prior to harvesting vital organs. The point of contention is whether brain death, in fact, corresponds to actual death. The topic of brain death is of such consequence that in November 2019 an entire issue of The Linacre Quarterly titled “Brain Death: Current Understanding and Questions” was dedicated to it, summarized in the leading editorial (Golder, Travaline, and Dreger 2019).

The Catholic Church, following Aristotelian-Thomistic hylomorphism, teaches that the human person is the substantial union of a material body and an immaterial soul. The human soul possesses many properties, encompassing vegetative, animal, and rational powers. If any of those powers is displayed, this implies the persistent presence of the indivisible human soul and therefore the persistence of human life. As long as a human is alive, from conception to death, he or she possesses intrinsic dignity by virtue of being made in the image and likeness of God and cannot be “sacrificed” for his or her organs. In our pluralistic society, the Church’s anthropology may not be shared by all those involved in medical ethics decisions at a given hospital. As such, using this anthropology to argue for or against the validity of brain death has an inherent limitation in the healthcare setting. It would be helpful, therefore, without presuming the Church’s anthropology, to closely examine the medical/scientific evidence and ask: what does this evidence suggest about human nature? And what are the implications of that human nature for brain death?

John Kavanaugh’s Philosophy of Human Nature

When reflecting on contentious issues in medical ethics, John Kavanaugh, SJ (1941–2012), began with human experience. In philosophy, this approach is called phenomenological. Kavanaugh’s work was written in a postmodern world in which moral relativism was ascendant, and religion was increasingly being pushed to the periphery of public life. He recognized in such a climate that utilizing traditional Aristotelian-Thomistic terminology, such as “nature” and “hylomorphism,” would frequently have one of two results. Either the line of reasoning would be ignored by those who reject such ontological commitments or (for the majority of the population) the line of reasoning would be difficult to follow owing to a rarity of familiarity with scholastic terminology.

A son of Ignatius, Kavanaugh was “thinking with the Church,” but he did not simply repeat what had already been taught regarding Aristotelian-Thomistic hylomorphism. Instead, he formulated his conclusions in terms which would appeal to the broadest possible audience, so that they might have the greatest possible impact in society. “If ethics has no impact on life,” he wrote, “it will have little worth” (Kavanaugh 2001, 6). In his work Who Count as Persons? Kavanaugh attempted to achieve two related goals: (1) to articulate a philosophy of human nature and (2) to discuss the ethical consequences of that philosophy, particularly as it applies to the intentional killing of a human being.

Truth, as Kavanaugh knew, has its source in God. Reason and revelation will always support one another, provided that reason is not in error and revelation is not misinterpreted. Kavanaugh, recognizing the strength of phenomenology to appeal to the average person’s sensibilities, took as his starting point human experience. While not every human experience is universally shared due to circumstances such as illness and cultural and historical conditioning, during the course of normal development, humans experience self-consciousness in themselves, and they notice that others experience it as well. As will be discussed in detail subsequently, Kavanaugh posited that self-consciousness is made possible through an immaterial endowment which he termed reflexive consciousness (RC).

It would be helpful to begin by defining the terms “consciousness” and “self-consciousness.” A working definition for “consciousness” is awareness. The most pertinent Merriam-Webster Dictionary definition for consciousness as used in this article is “the quality or state of being aware especially of something within oneself” (The Merriam-Webster.com Dictionary 2020). Similarly, a working definition for “self-consciousness” is awareness of awareness. The most pertinent Merriam-Webster Dictionary definition for self-consciousness as used in this article is “conscious of one’s own acts or states as belonging to or originating in oneself: aware of oneself as an individual” (The Merriam-Webster.com Dictionary 2020).

Both the terms consciousness and self-consciousness have been discussed in the scientific literature (Zeman 2001). A full discussion of the various meanings of each term is beyond the scope of this article, but the following passages are illustrative of the above working definitions. British physician Adam Zeman (2013) describes the experience of consciousness as “there is ‘something it feels like’ to exist, whereas there is nothing it feels like to be a stone or lost in dreamless sleep” (p. 375). I am conscious that the stove is hot and of pain and of myself as the one who is feeling the pain and aware of it. A stone, in contrast, would not perceive these sensations.

Zeman (2013) describes the experience of self-consciousness in the context of child development, writing that children

come to appreciate that, as well as being objects, that can be inspected in mirrors, they are also subjects, of experience—they possess, in other words, not only bodies, but also minds. The awareness of ourselves as subjects of experience opens up a world of new possibilities for understanding our own behavior and the behavior of others in terms of desires and beliefs, and for implanting and manipulating these.…Once we realize that others, like ourselves, have a limited, personal perspective on the world we can choose to inform, misinform, and influence them, creating all the Machiavellian complexities of human behavior. (p. 377)

Kavanaugh elaborates that self-consciousness is our consciousness of being conscious of the world. It allows us to experience our bodies and all our embodied experiences as personal, as “my body” and “my experience.” Self-consciousness is the means whereby the world becomes ours. For example, when telling a story, we not only respond to the facial expressions and mannerisms of our audience—we are aware that we are responding to them. My body is my body, belonging to and expressing my very self. When I laugh, my body is laughing, but moreover, it is me laughing. Embodiment is the expression of subjectivity in matter. Our gestures and language (in most instances, unless we use them to deceive or mislead) are personal self-revelation. Through self-consciousness we enter into relation in the world, question it, and interpret it. We no longer simply respond to stimuli (to avoid pain and maximize pleasure) but respond out of self-awareness. Self-consciousness allows us to enter into our process of becoming and developing, and by giving us self-knowledge, it allows us to shape who we are becoming.

Kavanaugh argues that self-consciousness is made possible by an immaterial endowment he terms reflexive consciousness (RC). When Kavanaugh calls RC an “endowment,” he is signifying that RC is an innate power or capacity of the human person which is present from the moment of conception. At the moment of conception, the immaterial endowment of RC is joined to a unique physical body, resulting in embodied RC—a human person. This living being remains ontologically a person so long as the immaterial endowment of RC remains joined to the physical body. Although he does not explicitly formulate it this way, Kavanaugh’s line of reasoning that RC is immaterial can be summarized in the following abductive argument: That RC is a human endowment can be deduced by observing the activity of self-consciousness in most human adults. The existence of RC calls for an explanation. Given the evidence (which Kavanaugh presents in the case studies discussed subsequently), the best explanation for RC is that it is immaterial. Therefore, RC is most likely immaterial.

As an immaterial endowment, RC constitutes the “radical basis of human equality. Because it is a nonmaterial endowment, no cultural, political, or biological condition lessens it. It also is the capacity that makes us personally unique in this individuated capacity for self-defining action in ethical choice. Only I have the capacity to possess myself and express that self-possession in moral action. Herein, I am irreplaceable in the moral sense. Herein as well, however, you are as irreplaceable and unique as I am. We are radically equal” (Kavanaugh 2001, 56). This statement is vitally important for Kavanaugh’s project: the endowment of RC is the basis of human equality and makes possible ethical decision-making. The human person is shaped by genetics, environment, and culture. The immaterial endowment of RC is not. RC is not dependent on race, age, or gender. Moreover, RC makes possible ethical decisions because it enables us to be responsible for ourselves. This is why RC is the fundamental principle of human equality.

RC is not the same as one’s self or person. The human person cannot be reduced to either corporeality or immateriality. The human person is not simply a body or a brain nor is the human person simply RC. The human person is embodied RC, seamlessly integrated. The brain is necessary for the embodied self-action of an adult human person, but it is not sufficient to explain it. Moreover, the brain is not necessary to have a human person. As discussed subsequently, Kavanaugh argues that from the moment of conception, there is a human person with the endowment of RC even though there is not yet a brain.

Nonhuman animals are conscious, but they are not self-conscious and do not possess RC. They are aware of the world around them, including other animals. They have affections and memories; they experience sensation and demonstrate conative action. But they are not aware of their own awareness of these things. They possess no sense of self. An animal simply acts in response to a stimulus, without evaluation of the significance of the action it is about to perform. If I were to slap an animal, depending on its temperament, it would either attack or flee. Only a personal animal, a human being, could make the decision to turn the other cheek, a decision based on moral consideration rather than instinct. This moral reflection is made possible by RC, which allows us to analyze our actions and as such makes possible ethical decision. “We are personal animals because among our endowments is the capacity for awareness of our own act of awareness that makes us animals who are not only living a life but having a moral life” (Kavanaugh 2001, 47). Ethical actions presuppose the “self-knowledge and accountability for such knowledge” that RC enables (Kavanaugh 2001, 47).

Case Studies in Support of Embodied RC

Kavanaugh uses a number of case studies to illustrate the experience of the human person as embodied RC. The first case he takes from the writings of neurosurgeon Wilder Penfield. In the following excerpt, Penfield (1975) describes his experience probing the cerebral cortex with electrodes:

Consider the point of view of the patient when the surgeon’s electrode, placed on the interpretive cortex, summons the replay of past experience. The stream of consciousness is suddenly doubled for him. He is aware of what is going on in the operative room as well as the “flashback” from the past. He can discuss with the surgeon the meaning of both streams.

The patient’s mind, which is considering the situation in such an aloof and critical manner, can only be something quite apart from the neuronal reflex action. It is noteworthy that two streams of consciousness are flowing, one driven by input from the environment, the other by an electrode delivering sixty pulses per second to the cortex. The fact that there should be no confusion in the conscious state suggests that, although the content of consciousness depends in large measure on neuronal activity, awareness itself does not. (p. 55).

In this case, the patient whose cerebral cortex Penfield was stimulating was simultaneously aware of both streams of input—the present moment and the past event relived. Many adults have experienced a similar phenomenon with their olfactory sense when a smell triggers a memory. For example, catching the whiff of an evergreen may transport a person back decades to a memory of Father setting up the Christmas tree. Like Penfield’s patient, we are able to differentiate between the present and past and are able to do so without cognitive angst or confusion.

Kavanaugh argues this ability to seamlessly integrate both streams of data as “mine” is a manifestation of embodied RC. The experience of Penfield’s patient was “not reducible to the two different ‘contents’ or streams of consciousness that are intrinsically modified by the probing of the brain” (Kavanaugh 2001, 45). As embodied RC, the patient was able to “stand above” the physical firing of neurons in the brain, suggesting that RC is immaterial. If RC “were material, it would have to be in two places, wholly and entire, at the same time. There may be some quantum explanation of this phenomenon, or a modularity in the brain that gives the illusion of unity, or an astounding number of computations in the cortex that gives us the feeling of reflexivity; in the absence of compelling evidence, however, concluding that there is something about our cognitive endowments that is not exhaustively explained by or reduced to the organicity of a brain is provisionally warranted” (Kavanaugh 2001, 54–55).

A second case Kavanaugh reviews is that of Clive Wearing. Clive is a brilliant musician and composer who sustained substantial brain damage from herpes encephalitis, resulting in severe anterograde and retrograde amnesia. His life became nothing more than an unending moment, with no past or future to anchor it. He might spend an entire day making consecutive diary entries similar to the following: “Now I am completely aware for the first time in years” (Kavanaugh 2001, 46). And yet Clive has an enduring love for his wife, Deborah. Whenever he “meets” Deborah again, he greets her with tremendous love and affection. In an interview given to The Observer in 2005, a scene of love and affection is described which occurred twenty years after Clive’s development of amnesia: “Deborah Wearing tenderly embraces her husband while he whispers sweet nothings. ‘You’re beautiful,’ he tells his wife. ‘Absolutely gorgeous. I adore every thing [sic] about you. I could kiss you all day.’ Despite the chill January afternoon, the muddy garden, he twirls her around as though they’re at a tea dance.…He serenades her in a velvety singing voice and she laughs, delighted” (France 2005). In the same interview, Deborah said “There is still a Cliveness about Clive.” We are not, she realized, “just brain and processes. Clive had lost all that and yet he was still Clive. Even when we didn’t see one another, when we were six months apart and only spoke on the telephone, nothing had changed. Even when he was at his worst, most acute state, he still had that huge overwhelming love…for me. That was what survived when everything else was taken away” (France 2005).

Memories are stored in specific areas of the brain. Because memory is localizable to particular areas of the brain, if a given area is damaged, the memory stored there will be lost. In contrast, RC is not localizable to a particular area of the brain. Clive has nearly completely lost his memory due to physical damage to his brain, but he remains undeniably a human person. Although Clive’s physical body is damaged, his sense of “self” endures, which can best be accounted for by the immaterial endowment of RC.

A third case Kavanaugh reviews is that of Officer David Mack, a Minneapolis police officer shot on December 13, 1979 (Elder 2015). Mack was in a “persistent vegetative state” during the majority of the subsequent year, demonstrating little to no interaction with his environment (Kavanaugh 2001, 177).

Yet after he “regained” consciousness and became capable of communicating through a word-board, he revealed that for a while he thought he was dead. Later, he thought he was in hell. We have here a person, a self, whose encounter of the world is frighteningly altered by the damage the “whole” person suffers. The “stream” of consciousness is so radically diminished that Office Mack thinks that he (himself) is dead and then experiences a condition that can only be described as hellish. Throughout much of this experience, however, he has a reflexive consciousness that appropriates these tragic deficits as his own. The question of his identity persists.…The human person—embodied awareness of awareness, damaged though the body may be—endures. (Kavanaugh 2001, 177–78)

Kavanaugh speculates that Mack, while in his “persistent vegetative state,” thought he was dead because he was not receiving any sensory input from his body. His RC was essentially isolated from the outside world. His subsequent belief that he was in hell corresponded to the pain he felt as sensation returned, and he could feel his body trying to regenerate. As he further recovered and his awareness of the outside world returned, Mack discovered he was in fact sick in the hospital. Throughout this time, regardless of the degree of sensory input, Mack’s sense of self was unchanged. He perceived all these sensations, or lack thereof, as happening to him. Mack’s RC did not increase or decrease, only the sensory input it received did.

Mack’s case illustrates that even in the setting of substantial brain injury, the sense of “I” persists. The injury is perceived as “my injury” that happened to “me.” Mack’s embodied self, the interaction of his body/brain and RC, was altered by brain trauma—to become a damaged, wounded self. But his immaterial endowment of RC, which enabled his sense of self, was unchanged. Each of us has experienced this persistent sense of self in the absence of external stimuli while dreaming. In dreams, we are deprived of all outside awareness, but we still perceive the dream as “our own” and the person in the dream as “me.” Again, this lends support to the notion that RC is immaterial. This is not to claim that RC is supernatural—RC is natural (part of our nature) but immaterial.

Opposition to RC as an Immaterial Phenomenon

The claim that RC is immaterial would be opposed on principle by materialists. Because healthcare providers may encounter in their healthcare environments those who (explicitly or implicitly) embrace a materialist philosophy, it is important to address the objection to the plausibility of RC being immaterial.

Modern materialists, espousing metaphysical naturalism, claim that everything can be explained by a material cause through science. They justify this using the following inductive argument: modern science has tremendous explanatory power. Moreover, progress is always being made. Therefore, all things will eventually be accounted for using the methods and metaphysics of science. Materialists essentially provide a promissory note: eventually, we will be able to explain everything, including RC. Everything is tentative and revisable, always subject to further testing and new data. Given our current understanding of science, there may be no material/biological explanation that can wholly account for RC. But, a materialist would argue, eventually that will no longer be the case. For example, the modern American philosopher Daniel Dennett denies that there is anything more to consciousness than simply the material operation of the brain although the precise mechanism is unknown at this time. (Of note, he uses the term “consciousness” broadly, and its meaning includes that of self-consciousness as defined above.)¹ He tells his reader, “I will explain the various phenomena that compose what we call consciousness, showing how they are all physical effects of the brain’s activities, how these activities evolved, and how they give rise to illusions about their own powers and properties” (Dennett 1991, 16). He likens consciousness to a particularly sophisticated act of legerdemain, writing: “It seems to many people that consciousness is a mystery, the most wonderful magic show imaginable, an unending series of special effects that defy explanation. I think that they are mistaken, that consciousness is a physical, biological phenomenon—like metabolism or reproduction or self-repair—that is exquisitely ingenious in its operation, but not miraculous or even, in the end, mysterious” (Dennett 2003).

However, to reject RC as immaterial is to reject the best explanation for RC at this time. How so? Positing RC as an immaterial endowment best fulfills the criteria for a good explanation, which are as follows. One, the explanation is simple. Two, the phenomenon is more likely given the posited explanation than given any alternative explanation. Three, the explanation renders the otherwise odd facts probable.

RC as an immaterial endowment fulfills these three criteria. One, as an immaterial endowment, RC is absolutely simple—an immaterial object cannot be divided. Two, if we assume RC is immaterial, RC seems more likely to exist than if it were material. This is because RC is difficult (if not impossible) to account for from an evolutionary standpoint insofar as it confers no survival advantage and its probability of organically developing by random chance is exceedingly low. Three, RC as an immaterial endowment can explain the puzzling facts observed in the three cases discussed above.

In contrast, to consider RC as a material endowment violates all three criteria for a good explanation. One, were RC material, it would be incredibly complex in design and operation. Two, as discussed in the preceding paragraph, were RC material, it seems extremely unlikely that it would have come into existence at all given that it confers no survival advantage to be favored by natural selection. Three, given the current state of scientific knowledge, RC as a material endowment cannot account for the puzzling facts discussed in the three case studies.

Therefore, the proposal that RC is an immaterial endowment is the most logical explanation for RC. A materialist could reject this hypothesis, but in doing so, he would reject the most logical conclusion in order to be consistent with his preexisting ontological commitment.

Endowment Theory of Personhood

To answer the question posed in the title of his book as to who count as persons, Kavanaugh first addresses the question: what is a person? Kavanaugh’s phenomenological account of the human person is connected to Boethius’ classic definition of a person as “an individual substance of a rational nature” (Boethius 1978, p. 85). In his work Who Count as Persons? Kavanaugh defines and affirms each component of Boethius’ definition: individual, substance, rational, and nature (Kavanaugh 2001, 64–66). He also notes potential misinterpretations of these terms and clarifies their meaning. Very briefly, as an individual, a person is in some ways “on their own” and has a life which they experience as their own. As a substance, a person is an intrinsic unity which is self-organized and which grows and develops over time without ceasing to be “themselves.” To speak of a thing’s nature is to affirm that each individual is a kind of being with certain endowments which it shares with other individuals of the same kind. To say a person is rational is to affirm that they are capable of reason, of intellectual pursuit. But Kavanaugh emphasizes that a rational nature encompasses more than simply intellectual pursuits. “If we can understand rationality is inseparable from all other parts of our experience, it would be quite properly effective in distinguishing our nature from any other kind of nature. We would be taking note of the fact that reason transforms and is transformed by affect, emotion, and embodiment and that it is not, in isolation, the qualifying characteristic of our personhood” (Kavanaugh 2001, 66). I, Joe Eble, possess a rational nature. As such, I enjoy pondering intellectual questions such as “who count as persons?” and their implications for medical ethics. Kavanaugh is arguing that to characterize me only as a being which ponders intellectual questions would be reductionistic and inaccurate. In order to understand my rational nature, my lived experience as Joe Eble, the intellectual activity I demonstrate must be contextualized within my embodied experience. For example: I feel joy as I discuss medical ethics with my wife, whom I love and enjoy spending time with, over the dinner that nourishes our bodies as we enjoy Mozart in the background. Joy, intellectual activity, love, friendship, nutrition, auditory perception: all of these must be encompassed to understand my nature as a human person who is embodied RC. Thus, Kavanaugh allows that “rationality” could be equated with RC, but only if rationality is properly understood, not reduced to its intellectual activities (such as abstract thought) and isolated from human experience.

While Kavanaugh accepts Boethius’ definition of personhood, he instead uses “embodied RC” to define the human person for two reasons. One, this definition skirts the ontological commitments inherent in the terminology of Boethius’ definition, terminology which reflects the Greco-Roman philosophical heritage and Christian faith Boethius sought to harmonize. Such presuppositions could not be assumed as widely held in a pluralistic society. Two, Kavanaugh felt to define the human person as embodied RC decreased the chances of a reductionistic misunderstanding of a “rational” nature as merely intellectual activity.

Kavanaugh embraces an endowment theory of personhood. In this framework, a person is a type of being capable of, but not necessarily demonstrating, rationality (which, when a rational nature is understood as above, can be equated with RC). In an endowment theory of personhood, human beings are persons because they have the intrinsic endowment of rationality/RC. As animals with physical bodies, human beings are also embodied. An endowment theory of human personhood follows the maxim that “ontological reality precedes observation.” This means that one can discover the endowments that a thing has by examining its activities—that is, through empirical observation. So, it is known that human beings are capable of reason because they have been observed doing calculus, making philosophical arguments, and performing other intellectual activities. In order for the actualized endowment to be observed, though, the endowment must first be present. The existence of the endowment must precede its displayed activity. If an infant did not possess the endowment of rationality, it would never be able to display that activity as an adult.

In the case of immature or damaged persons, they may be unable to display any or all rational activities—but they still possess the endowment of rationality/RC. This inability to display rational activity can have many causes: genetic (various aneuploidies); early development (a fetus); infirmity; trauma (a car accident). Humans in these various conditions are immature or damaged persons. But these conditions do not render them nonpersons, only wounded persons. Activities reveal personhood, but they do not make us persons. In an endowment theory of personhood, it is appropriate to treat human beings with the respect owed to the type of being that they are. Racism and misogyny can be opposed because they are based on arbitrary criteria. The nonarbitrary criterion is that of personhood, and the nature of the human person is that of embodied RC. If RC in a given embodied individual is no longer displayed, it does not logically follow that RC is absent. The endowment may still be present, but because of physical injury, it may no longer be capable of being displayed.

Kavanaugh argues that the career of a human person begins at the moment of conception. At this moment, the immaterial endowment of RC is joined to a physical body with a unique human genotype, resulting in embodied RC—a human person. This living being remains ontologically a person so long as the immaterial endowment of RC remains joined to the physical body. This newly formed human life contains

its own internal principle of self-development.…It has its inherent system of information for the elaboration and development of its own capacities and endowments. The career of a human person [as embodied RC] is launched—a person with potentials, not a potential person.…The theory of personally endowed nature helps us see that a human being need not be activating his or her potentialities to be human. An unborn child, like a comatose grandmother, is not a ‘potential’ human but a human with endowments—even though they may not be activated because of development or damage. (Kavanaugh 2001, 131)

While it is impossible to irrefutably prove that the endowment of RC is first present at the moment of conception, as an endowment proper to human persons, it is reasonable to propose its presence from the moment of conception. Kavanaugh argues that the alternative options for when RC might first be present, such as when twinning is no longer possible, when the brain first develops, or when viability outside the womb is reached, seem comparatively arbitrary and therefore less plausible. At the moment of conception, a new being is formed, and from conception to death, there is an unbroken continuum of development of that same uniquely endowed being.

To summarize, the human person is embodied RC. The most logical conclusion given the current state of scientific knowledge is that RC is immaterial. Although there is no way for science to definitively ascertain the presence or absence of RC in a given individual in the setting of immaturity or physical damage, a strong argument can be made that RC is present from the moment of conception. Therefore, the most ethical course of action when dealing with human life is to assume that personhood (embodied RC) begins at conception and ends when death has occurred, wholly and irreversibly.

Implications of Embodied RC for Brain Death

Kavanaugh’s work is pertinent to the topic of brain death and vital organ harvesting, although he never specifically addresses these subjects in his writing. Kavanaugh argues in his work for the inviolability of the human person. That line of argument is critical for the issues he addresses such as abortion, euthanasia, capital punishment, and war. However, that argument is not necessary (at least at the current time) for the topic of brain death because of the dead donor rule, which is a widely held ethical consensus that organs can only be harvested from the dead. As such, this article will not address his argument for the inviolability of all human life because organ donation presumes human death.

If RC is not material, then it cannot be localized to any specific part of the brain. Moreover, if it is not material, RC is not caused by the brain. The brain may provide the necessary substrate for its presence to be demonstrated, but it exists prior to and independently of the brain. Given the immaterial nature of RC and its nonlocalizable presence, it cannot be safely assumed to be absent until the human person (and not only the brain) has wholly and irreversibly died. As the case of Mack illustrates, a human person may no longer be capable of displaying self-consciousness, but so long as the immaterial endowment of RC persists a human person is present, a person who deserves to be treated with the respect owed to the type of being that they are. Any evidence of persistent brain function therefore raises the possibility that RC may be present.

The controversy over brain death is whether it represents true death, the state of dying, or a state of severe (and possibly reversible) illness. Some would argue that the current guidelines to determine brain death, as codified by the American Academy of Neurology, are unable to distinguish among these states (Nguyen 2017). Moreover, it is argued that these guidelines, even when using ancillary testing such as the electroencephalogram (EEG) and/or nuclear medicine perfusion studies, cannot guarantee the complete, irreversible loss of all brain function (Nguyen 2017). A thorough review of the medical evidence as pertains to the topic of brain death is beyond the scope of this article. For purposes of this article and its limited goal of helping healthcare providers to inform their consciences, attention will be drawn to three facts that raise the possibility that RC may still be present in patients declared brain dead.

One, persistent EEG activity has been demonstrated in some patients who have been declared brain dead using only the bedside clinical examination criteria (Grigg et al. 1987). In the study by Grigg et al. (1987), out of fifty-six consecutive patients who met the clinical criteria for brain death, eleven demonstrated persistent EEG activity (19.6 percent). The EEG is an ancillary test for a declaration of brain death and not routinely performed, but based on this study, it is reasonable to speculate that over time, many patients (although not most patients) have been declared brain dead who have persistent EEG activity. The presence of EEG activity is consistent with persistent function of at least some brain tissue, and as such, the immaterial endowment of RC may still be present in these patients.

Two, there is evidence that the hypothalamic–pituitary axis of the brain frequently continues to function after a declaration of brain death. A relatively recent review of the published literature on this subject found “evidence suggesting the preservation of hypothalamic function, including secretion of hypophysiotropic hormones, responsiveness to anterior pituitary stimulation, and osmoregulation, in a substantial proportion of patients declared dead by neurological criteria” (Nair-Collins, Northrup, and Olcese 2016). Among the studies that were reviewed by Nair-Collins et al. was a study from 1993 by Arita et al. All thirty-nine brain dead patients in that study were declared dead using criteria requiring “the demonstration of an electrocerebral silence in addition to the complete cessation of brain stem function” (Arita et al. 1993). In other words, all the patients in this study lacked EEG activity. Nonetheless, antidiuretic hormone and/or hypophysiotropic hormones were found in the systemic circulation of the majority of those brain-dead patients. This indicates that the hypothalamic–pituitary axis, which is part of the brain, continued to function in “brain dead” patients. Persistent brain function raises the possibility that the immaterial endowment of RC could still be present in these patients.

Three, there is substantial variation in brain death guidelines among leading hospitals in the United States (Greer et al. 2008). This variability raises questions regarding the validity of the assessment of brain death. By using different assessment tools, it is possible that a person could potentially be declared “alive” at one institution and “dead” at another institution depending on the assessment criteria used, which is a logical impossibility per the principle of noncontradiction. This variability in the assessment criteria raises the possibility that persistent brain function could be missed at a given institution.

For those practicing in the United Kingdom, the criteria of “brainstem death” is clearly inadequate for definitively determining the absence of RC insofar as this notion explicitly accepts that portions of the brain can still be functioning at the time a person is declared “dead.” Pallis (1983), who has been influential in the development of the concept of brainstem death, writes “The irreversible cessation of brain stem function implies death of the brain as a whole. It does not necessarily imply death of every cell in the brain” (p. 8). It is noteworthy that the bedside clinical examination tests to determine whole brain death in the United States and brainstem death in the UK are identical, testing only the brainstem reflexes (Smith 2012, p. i7). Without ancillary testing, a declaration of whole brain death in the United States is made using identical criteria to a declaration of brainstem death in the UK.

Adoption of Kavanaugh’s understanding of the human person as embodied RC has important implications for vital organ transplantation. RC is either present or absent. While the immaterial endowment of RC is present, the human person is alive. Conversely, when the immaterial endowment of RC has become absent, the human person has died. The presence of persistent brain activity in patients declared brain dead raises the possibility that RC is still present. If RC is still present, a living human person is present. If a living human person is present, then according to widely held ethical consensus that persons cannot be sacrificed for their organs. As discussed in the introduction of this article, conscience is a practical moral judgment. While the presence of RC cannot be irrefutably proven to be present in these patients, it is reasonable to believe it is present. Because the validity of brain death is uncertain and this is literally a matter of life and death, it is the conscientious conclusion of this author that brain death criteria are invalid for definitively determining the death of the human person, and therefore the harvesting of vital organs for subsequent transplantation should not commence based upon a declaration of brain death. Readers are called to make their own practical moral judgment on this matter using the information in this article to contribute to the formation of their conscience.

Strengths and Weaknesses of Embodied RC in the Healthcare Setting

There are pragmatic advantages to using Kavanaugh’s articulation of human nature in health care. On a regulatory level, Kavanaugh’s work is fair game to be used as evidence in a secular, pluralistic environment because his phenomenological approach relies on empirical observation and philosophical reasoning without appeal to a particular faith tradition. Similarly, on an individual level, it can appeal to the conscience of any healthcare provider of goodwill without necessitating belief in a particular religious belief set.

There are two principal disadvantages to using Kavanaugh’s work in health care. First, as with many philosophical propositions, it requires a significant amount of intellectual effort to follow the line of reasoning. Healthcare providers, who are frequently busy, may not have the time and/or energy to fully engage the proposal.

Second, there is a persistent element of uncertainty. Using only philosophy, we cannot say exactly when a human person begins and exactly when a human person ends—that is, when the immaterial endowment of RC is first present and when it has left. Unless it is being actively displayed, we can only say that the endowment of RC is potentially present. This uncertainty as to the presence or absence of RC is intellectually dissatisfying. Human persons long to know definitive answers. Unfortunately, the intersection of philosophy and medicine is an area that rarely yields definitive answers. This uncertainty, however, does not prevent us from using Kavanaugh’s work for the purpose of informing our consciences. To be consistent with the dead donor rule, if there is even the possibility of RC’s presence we should act as if RC is present, assume there is a living human person, and not harvest critical organs.

Conclusion

John Kavanaugh, SJ, articulates a philosophy of human nature which takes as its starting point the human experience of self-consciousness. RC, which makes possible self-consciousness, is a fundamental endowment of human beings which is fully present so long as a person is alive and becomes absent when a person is truly dead. RC makes possible ethical action and is common to all human persons, and as such is the foundation of human equality. Because RC is an immaterial, nonlocalizable endowment, empirically ascertaining the presence or absence of RC may not be possible—its demonstration may be precluded by physical immaturity or damage. Therefore, until the human person (and not only the brain) has wholly and irreversibly died, RC should be assumed to be present. The current criteria for brain death are incapable of ensuring that the entire brain has permanently and irreversibly ceased to function. Therefore, RC may still be present in those whose organs are harvested after meeting the criteria for brain death. Therefore, a healthcare provider could (and likely should) in good conscience oppose the use of brain death criteria for purposes of harvesting vital organs. On a societal level, utilizing brain death criteria to declare a person dead has the potential in any given case to violate the dead donor rule, and as such conflicts with the widely held moral consensus that organs should only be harvested from those who are dead. Healthcare providers should advocate for medicolegal frameworks consistent with their informed consciences.

Biographical Notes

Joseph Eble, MD, is a diplomate of the American Board of Radiology and practices musculoskeletal radiology in Tulsa, OK, where he is a managing partner of Fidelis Radiology.