Stuparich, J. (ed), (1992) Euthanasia, Palliative and Hospice Care and the Terminally Ill. A seminar held at John XXIII College, Australian National University, Canberra, 26 September 1992. Sponsored by the Australian Federation of Right to Life Associations. ACT Right to Life Association, Canberra, Australia. pp45-55.
[ * Dr Peter McCullagh MD (Melb), D.Phil (Oxon), MRCP, is Senior Fellow in Developmental Physiology, John Curtin School of Medical Research, Australian National University. Dr McCullagh’s research interest is in the development of the immune system in the foetus and especially acquisition of the ability to discriminate between self and non-self.]
Euthanasia is a longstanding issue which seems to have received much more attention in recent years. The scope of any issue tends to be defined by the terms selected to define and deal with it and euthanasia is certainly not an exception. Presentations of the case in favour of euthanasia have often been notable for resort to semantic niceties and euphemism. The introduction of a “straw man” representing (or misrepresenting) the position of those opposed to euthanasia has frequently been a component of advocacy. Whilst the usual dictionary definition is likely to be more restricted, my impression of what is intended by the term “euthanasia” on the part of those using it for purposes of advocacy entails the intended killing of a patient, in a medical context and for the presumed benefit of the subject.
The nature of the technical procedures employed in management of two patients may be identical but, with divergence in intent, one may constitute euthanasia whilst the other does not. Identical procedures undertaken on two patients may also be regarded as euthanasia in one situation, but not in the other, if the vital status of the two patients is considered to be fundamentally different in the two cases. Thus, the term euthanasia is inevitably considered to refer to interventions undertaken before death and intended to expedite that event. One cannot undertake euthanasia on an individual who is already dead. However, in the course of the past decade, considerable effort has been expended in some quarters to manipulate the definition of death. The outcome of such manipulation can be that, provided the participants are convinced the patient is already dead (by re-definition), procedures which, if undertaken on a living patient would necessarily attract a description as euthanasia can be conveniently re-classified as routine post-mortem activities. If the demarcation between “alive” and “dead” is moved back to include more of the former, “killing” may be converted into a “pre-burial procedure”.
The traditional criteria for recognition of death were centred around the cessation of contraction of the heart. More recently, the concept of irreversible inactivation of the brain (which is rapidly followed by cardiac cessation unless respiration is artificially maintained) has been recognised and titled as “brain death”. The change from “traditional” criteria of death to “brain death” has replaced cessation of function of the heart as the primary event by irreversible cessation of spontaneous respiratory function. However, further changes have been proposed.
The most recently advocated variation to criteria for recognition of death entails the replacement of irreversible loss of spontaneous respiration by irreversible loss of consciousness (whilst spontaneous cardiac contraction and respiration are maintained). It is believed that this newer position, often categorised as “cerebral death”, corresponds with loss of function of the higher parts of the brain (cerebral hemispheres) with persistent function in the lower brain (brain stem). The argument for this concept rests on the proposition that permanent loss of consciousness isthe critical occurrence:
“It has been argued that a diagnosis of death of the person could be linked to criteria for loss of certain characteristics (such as memory and behavioural patterns) associated with psychological aspects of human life. According to this view, if the cortex is totally destroyed, the patient has lost his or her personal identity.”(1)
This argument has been expressed in two forms – either that an individual who has sustained permanent loss of consciousness is no longer alive: alternatively that such an individual is no longer a person. In either case, it would be maintained that the subject no longer remains available for euthanasia – in the case of the first interpretation, it is no longer possible to kill that which is already dead. In the second, whatever one is killing, it cannot be a person.
Provided one accepts the proposition that a subject who has irreversibly lost consciousness but who, nevertheless, retains the capacity to breathe spontaneously is no longer a living person, any suggestions for their management (or mismanagement) can be readily (if not convincingly) presented in terms of post mortem procedures rather than of euthanasia. The problem is solved! In advocating a redefinition of death to accord with cerebral death criteria, Gervais suggests that subsequent management would proceed along the line that:
“When the neocortically dead patient has been declared dead, we would simply stop the remaining bodily functions by an inexpensive, aesthetically tolerable procedure. Those who administer the means for stopping the remaining functions must understand that the person is already dead, and that their action is therefore not killing.”(2)
Anticipating some conservative reaction against this position, she suggests that this can be accommodated by managing:
“the sensibilities of those who cannot change their responses [in regarding a patient who is breathing spontaneously as still being alive], for the spontaneous functioning of the neocortically dead can be discontinued after death has been declared and before funeral services”.(3)
Those advocating the substitution of cerebral death for brain death have recognised that there may be obstacles:
“Many who have followed me so far [in advocating the readoption of a neocortical death standard] would nevertheless balk at the problem of disposing of human remains capable of breathing spontaneously. They would say that active intervention to stop the breathing prior to preparation for burial is not only presently illegal but morally murder.”(4)
This “conventional” view was expressed when the proposition for adoption of “cerebral death” was first mooted in the following terms:
“Disconnecting a ventilator from a recently declared dead patient fulfilling tests of permanent loss of whole brain functioning is one thing; suffocating a spontaneously breathing patient is another.”(5)
However, within a decade, this position was “rebutted”:
“The statement also equates an emotional reaction to the treatment of a breathing body with the rational determination of whether the patient is dead or alive. The repugnance associated with suffocating such a patient has no more relevance to establishing the life or death of a human than does the horror felt at the continuing growth of a dead person’s hair.”(6)
It is worth noting that proposals for identification of human subjects as “dead” because of irreversible loss of consciousness effectively establish a basis for death in humans which differs fundamentally from that which continues to be applied to non-humans. Such a frankly speciesist position sits uneasily beside the previous philosophy of many of those proposing it, namely that man is not significantly different from other animals. This distinction between “human life” and “non-human life” has been accommodated by proposals such as:
“A more just and sensible position is to consider irreversibly unconscious noncognitive patients legally dead, but to recognise and account for the possibility of continuing biological existence.”(7)
If one accepts the position that this group of patients is already dead, any remaining arguments resolve around the question of what is to be done with the “remains”. Patients who have sustained “cerebral death” may continue to breathe spontaneously for many years, provided feeding and basic nursing procedures are maintained. It is difficult to maintain the position that such patients must invariably be maintained. For example, one American medical group advised that:
“The artificial provision of nutrition and hydration is a form of medical treatment and may be discontinued in accordance with the principles and practices governing the withholding and withdrawal of other forms of medical treatment.”(8)
I believe it is reasonable to propose that provision of nutrition should not be mandatory in such patients. Considered in the most general terms, it could be proposed that decisions on provision versus withholding of medical treatment will be based on the relativities between likely benefit to, and likely burden upon, the patient of the specific treatment available. This is not to maintain that discontinuation of nutrition and hydration is mandatory. If one accepts the second position, namely that the patient’s existence should not be maintained, a question may readily be posed as to whether withdrawal of hydration and nutrition is the preferred strategy for terminating “biological existence”. An American lawyer advanced the argument that:
“if a neocortically dead patient biologically exists without the aid of artificial life-support machines, active termination by injection may be a more humane procedure to induce biological death than withdrawing fluids and nourishment.”(9)
Apart from being “more humane” than withdrawal of food and fluids, active intervention to procure “biological death” introduces the possibility of making use of the cerebrally dead subject. It is most unlikely that an individual in whom respiration eventually ceases as a result of withholding of hydration and nutrition would retain any residual value as a source of spare parts. Damage to all organs during the prolonged process of “biological dying” would ensure this. However this constraint need not apply if cessation of respiration was achieved whilst organs remained in good condition. The lawyer quoted above suggested that:
“A neocortical death standard could significantly increase the availability of viable transplant organs. This raises the possibility that neocortically dead bodies, or part thereof, could be donated and maintained for long term research, for organ banks, or for other purposes such as drug testing or manufacturing biochemical compounds.”(10)
Suggestions that patients who have irreversibly lost consciousness should be used as organ donors are not new. A review of the status of clinical transplantation practice in Britain as early as 1975 noted that:
“Sir Michael Woodruff favoured a more radical approach to changing the law. On the question of cerebral death, he saw no objection to the diagnosis of death based on irreversible cessation of cerebral function provided the great majority of ordinary people were aware, and accepted, that doctors were using the word ‘death’ in this way.”(11)
Whereas proposals for the utilisation in transplantation of individuals who have sustained irreversible loss of consciousness have not been widely publicised, there appears to have been a vigorous campaign on the part of some clinics both to popularise and to effect the use of anencephalic infants in this way. Anencephaly is an extreme form of congenital malformation in which development of the upper part of the brain, the cerebral hemispheres, has been disrupted. In consequence, these infants are believed to be incapable of becoming conscious. The commonly used description of the anencephalic infant as “born without a brain” is singularly inaccurate as the lower parts of the brain have developed and the degree of disruption of the cerebral hemispheres varies markedly among anencephalics.
Traditional views about the status of anencephalic infants have been coloured by early beliefs that they represented the product of meetings between humans and non-human species. On the basis of this belief, anencephalics were commonly referred to as monsters. One influential legal commentary on anencephalic infants suggested that:
“There is, indeed, some kind of legal argument that a ‘monster’ is not protected even under the existing law … Yet the question still remains whether it is permissible both morally and legally so to define a human being as to exclude the grosser sports of nature … It seems probable … that a creature that is clearly a monster in the old-fashioned sense could lawfully be put to a merciful death.”(12)
General understanding of the medical status of anencephalics has not been notably accurate and, in consequence, some philosophical assessments have lost touch with reality. An example of the manner in which an inaccurate biological input can distort perception of the anencephalic was provided by Paul Ramsey.
“I suggest that we can deal with the issue of anencephalic births by the definitional route: they are not alive human beings … an anencephalic baby, it could be argued, no more enters the human community to claim our care and protection than a patient remains in the human community when his brain death is only disguised behind a heart-lung machine.”(13)
It is clear that Ramsey based his conclusions on a very imperfect understanding of the biology of anencephaly. Nevertheless, similarly distorted propositions have been used as a basis for deeming anencephalic infants to be dead and/or “non-persons” and, for that reason, available for use as transplant “donors”. For example, a legal basis for removing organs from an anencephalic at any time which suits the transplant team has been claimed to derive from a German court decision.
“In West Germany the corresponding paragraph in the commentaries of criminal law which states that an anencephalic is a stillbirth has been used to justify termination of pregnancy after the 22nd week of gestation.”(14)
Accompanying advocacy for the use of anencephalics as organ sources have been assertions of the “non-humanity” of the anencephalic and quasi-moralistic claims for the propriety of that use. Examples of comments intended to degrade the anencephalic infant are readily found in the writings of Dr Leonard Bailey, the paediatric cardiac surgeon who has made the running in using these infants as organ sources. Bailey has referred to anencephalics as:
“a nonperson human derivative, a resource we should be able to capitalise on.”(15)
He has claimed that:
“the anencephalic infant, while human, has never been a person and has no possibility for personhood.”(16)
Recourse to emotive argument has been another feature of his advocacy:
“all are grotesque in appearance and all die.”(17)
Moralising to support the removal of organs from anencephalic infants has tended to adopt the theme that:
“The ability to transplant foetal organs may now give us the chance to recognise the contribution of this doomed foetus to mankind.”(18)
Associated with this approach has been an assumption that the individual infant does not have any interest in not being used as an organ source:
“The parents and families of anencephalics are, after all, the real persons at stake.”(19)
On the basis of these types of arguments, programs to facilitate the use of anencephalic infants in transplantation have been mounted. The fervour of some of the advocacy and of the associated organ retrieval prompted one bioethicist to query the validity of the expressed motives for one program.
“This was not a case of a dying child in search of an organ, but of a dying organ in search of a child.”(20)
The general motivation for advocacy of anencephalic use in organ transplantation might well be questioned. The number of organs realistically available if anencephalic use were to be adopted as a regular practice would be unlikely to have more than a negligible impact on transplant waiting lists. The quality of the available organs would be questionable.(21) Nevertheless, there have been concerted attempts in many countries, including Australia, to manipulate the law in order to establish anencephalic use as a normal event. One attempt to achieve this in the state of New Jersey aimed to side-step existing constraints on removal of organs from living subjects.
“Section 2(a) of the Uniform Anatomical Gift Act specifies that any gift of organs takes effect on the death of the donor. The proposed statute would eliminate this requirement in the case of anencephalics.”(22)
Closer to home, there have been attempts to achieve a similar goal.
“A leading Melbourne doctor has urged the Government to change organ transplant legislation. Cardiologist Dr Brian Edis of Melbourne’s Royal Children’s Hospital said the Hospital might seek special dispensation from the current ruling which prevents transplants being taken from dying rather than legally dead donors, in a bid to save the life of a 7-month old baby with a diseased heart.”(23)
An observer of this form of activity might well ask why considerable effort should be expended in seeking to have the anencephalic infant, who exhibits features which are generally regarded as incompatible with the occurrence of death, classified as already dead and available as an organ source. I believe that it would be a good question. Explanations are not readily available, nevertheless I suggest that the possibility that the anencephalic might serve to “break the ice” for similar attitudinal and legal changes to the perception of other classes of inevitably unconscious subject should not be ignored.
* Dr Peter McCullagh MD (Melb), D.Phil (Oxon), MRCP, is Senior Fellow in Developmental Physiology, John Curtin School of Medical Research, Australian National University. Dr McCullagh’s research interest is in the development of the immune system in the foetus and especially acquisition of the ability to discriminate between self and non-self.