The law that redefined death in 1981, referred to as the Uniform Determination of Death Act (UDDA), is being revised.
The UDDA states that death by neurologic criteria must consist of “irreversible cessation of all functions of the entire brain, including the brainstem.” However, in actual practice, doctors examine only the brainstem. The result is that people are being declared dead even though some still have detectable brainwaves, and others still have a part of the brain that functions, the hypothalamus. Lawyers have caught on, pointing out in lawsuits that the whole brain standard was not met for their clients. As a result, the Uniform Law Commission (ULC) is working on updates to the UDDA based on proposals from the American Academy of Neurology (AAN).
In the interest of preventing lawsuits, the AAN is asking that the neurologic criteria of death be loosened even further and standardized across the United States. The revised UDDA is referred to as the RUDDA. Below is the proposal drafted at the February session of the ULC, which will be debated this summer:
Section § 1. [Determination of Death]
An individual who has sustained either (a) permanent cessation of circulatory and respiratory functions or; (b) permanent coma, permanent cessation of spontaneous respiratory functions, and permanent loss of brainstem reflexes, is dead. A determination of death must be made in accordance with accepted medical standards.
Notice that the new neurological standard under (b) does not use the term “irreversible,” nor does it include the loss of whole-brain function. The term “permanent” is being defined to mean that physicians do not intend to act to reverse the patient’s condition. Thus, people in a coma whose prognosis is death will be declared dead under this new standard. An unresponsive person with a beating heart on a ventilator is not well, but he is certainly not dead! The Catholic Medical Association and the Christian Medical and Dental Association have written letters to the ULC protesting these changes.
In addition, the AAN proposes that there be no requirement for informed consent before initiating brainstem-reflex testing. One of the tests is called the apnea test. During this exam, the patient is removed from the ventilator for 8–10 minutes, attempts to breathe are monitored, and carbon dioxide in the blood is measured. This test has absolutely no benefit for the patient. It can only cause harm, as rising levels of carbon dioxide in the bloodstream cause an increase in intracranial pressure, which is hugely detrimental for a brain-injured patient. The idea that there will be no informed consent requirement for this potentially harmful exam violates the ethical principles of autonomy, justice, beneficence, and non-maleficence.
The UDDA has been controversial since its inception in 1981, and experts on both sides of the issue admit that it has serious flaws. Most notably, organ donors declared dead under its criteria are, in fact, still alive. The heart beats, lungs exchange oxygen and carbon dioxide, kidneys produce urine, livers remove toxins, children go through puberty, pregnant women gestate babies, hair grows, and in many cases the brain and body communicate to regulate life-sustaining functions. Organ donors declared dead under the UDDA do not meet the Dead Donor Rule (DDR) and are exploited for body parts.