Medicine has not only saved the life of ethics, as Stephen Toulmin stated 30 years ago, but has also rejuvenated an old field of philosophy. As Toulmin claimed, it was clinical medicine with its growing ethical problems and new types of conflict situations that obliged philosophers to once again address “substantive ethical questions” (Toulmin 1982/1997, p. 101) by applying “principles to particular situations” (Toulmin 1982/1997, p. 107) instead of just practicing metaethics. The topic of organ transplantation is a very good example of what the reanimation of ethics by medicine could resemble. It is not only a current and controversial subject of applied ethics, namely medical ethics, but is also concerned with a subject from the heart of philosophy, which has been rejuvenated by the possibilities of modern medicine. This field of philosophical thinking refers to one of the presumably most existential topics overall in that its core lies in the question of the end of life and therefore, the question of death, that is: When is a human being dead? When does a human life end? What do such findings mean with regards to handling dying and dead bodies?

For almost half a century now, the field of transplantation medicine has raised and revitalized these questions in a distinctive and irrefutable way. Technologies for implantation of vital organs from dead donors demand a definitive answer to the question of how to draw the line between life and death. So we have to ask, what kind of signs and criteria could and should indicate that existential transition in a scientifically reliable and ethically responsible way, but also in a way that fits in – or challenges – our grown sociocultural understanding and phenomenological experience with dying and dead bodies? Lastly, it is the question of how to comprehend and how to conceptualize human life and death .

In 1968, the Ad Hoc Committee of the Harvard School established the brain death syndrome to define and determine the death of individuals who are in a state of an irreversible coma and who manifest “the characteristics of a permanently nonfunctioning brain” (Harvard-Committee 1968, p. 85). Thus, not only was a condition pronounced which can be tested and clearly detected on the basis of a set of medical-diagnostic parameters and data, but also death was no longer a phenomenon encompassing the whole body with all its functions and life signs, but rather being dead became a question of the functioning of the brain. According to the new paradigm of specifying death, waiting for final cardiac arrest and other signs of death (such as livor mortis, apnoea, or rigor mortis) is dispensable if the brain is extensively and irreversibly damaged.

This manner of identifying the life of a human with the life of its brain represents nothing less than a historical shift in conceptualizing life and death – a historical shift that challenges the comprehension and acceptance both of the public and of a circle of experts. Since its introduction, the brain death criterion has been the subject of controversial discussion not only among physicians, neuroscientists, and nursing staff, but also between social scientists, ethicists, philosophers, lawyers, and the public. A series of serious objections to this stipulative definition of death, which was invented under pressure of organ transplantation in times of donor shortage , has been propounded.

One of the earliest critics of the criterion was the philosopher Hans Jonas, who condemned the new definition only a few months after the report of the Ad Hoc Committee was released as being a purely, pragmatically motivated redefinition and “antedating of the accomplished fact of death […] with certain extraneous interests in mind” (Jonas 1969/2009, p. 503 f.), namely transplant interests. Aside from the risk of the immoral exploitation of helpless humans, according to Jonas the brain death criterion transports a dubious “revenant of the old soul-body dualism” (Ibid., p. 504) in the contemporary form of a soul-brain dualism. According to that, establishing the brain death criterion represents another form of overestimating the importance of the brain for life, identity , and the self-concept of man, which goes along with a degradation of the meaning of non-cerebral and bodily conditions. Thus, he took a very firm stand in the debate early on. From a realistic and unemotional perspective, it is worth mentioning here that in his rather provocative essays Jonas uses drastic and partially inadequate wording to depict the worst possible outcome of an unscrupulous introduction of the brain death criterion in favor of the procurement of vital organs. He fears that dying patients could be used “as a bank for life-fresh organs” (Ibid., p. 503) or “as a mine” (Jonas 1969, p. 244), and transplant surgeons are described as “executioners” (Ibid., p. 245).¹ However, even now, if one considers this criticizable linguistic sharpness, over 40 years after he wrote his essay, the essence of his concerns about a new way of defining death is still up-to-date.

As the German philosopher Petra Gehring recently pointed out in view of the historical, cultural, and political dimensions on the subject, the brain death criterion allowed some fundamental alterations in conceptualizing and dealing with death to take place. Mainly, she refers to the cerebralization, punctualization, and conventionalization of death (Gehring 2010). First, there is the fact that death is equated with – or reduced to – a state of the brain, and a cerebral condition (cerebralization). At the same time, death starts at a precise, determinable point in time, namely the moment the brain dead diagnosis is made (punctualization). Thus, the declaration of death no longer stands at the end of a more or less natural process – the process of dying – but it is a matter of reaching a decision, in which the criteria and preconditions are defined by a group of experts. So death has become a matter of specified tests and the adhering conclusion can only be arranged and performed by specialists (conventionalization). These points – cerebralization , punctualisation and conventionalisation , as features of the valid death criterion – are not naturally given and therefore indicate the arbitrariness of its stipulation.

The declarative moment of this new death designation is confirmed by difficulties within the everyday practice of handling brain dead individuals. We have to face the disturbing fact that massive conflicts exist in the perception of brain dead humans – or rather brain dead bodies. Such conflicts concern especially those people who work in hospitals and medical care units and have to deal with potential organ donors who are (brain) dead but, whose bodies are warm, who are still breathing, metabolizing, sweating and show nail and hair growth, not to mention that they could be pregnant and deliver a living child through a caesarean section. All of these are bodily functions, which are in some degree necessary to keep organs alive and transplantable.

This disturbing setting could get even more intense in the course of retrieval. To avoid bodily reactions by the donor, such as the remaining sensation of pain or indisposition, some argue for the anesthetization of brain dead patients. A concise statement is given by Philip Keep, an anesthetist at the Norfolk and Norwich Hospital (UK): “Nurses get really, really upset. You stick the knife in and the pulse and blood pressure shoot up. If you don’t give anything at all, the patient will start moving and wriggling around and it’s impossible to do the operation” (BBC News 2000). If you have to administer anesthesia to a dead body , it is not easy to understand and believe that the body is not alive, not even just a little bit. Linus Geisler, a German specialist in internal medicine and a critical voice, calls the medical-scientific fact that brain dead people “are only apparently alive but dead in fact (only feigned living)” a “massive violation of human intuition” (Geisler 2010, p. 2).

In addition to these aspects of handling people who are declared brain dead, in the more recent past strong doubts about the rightness of the brain death criterion came up in the light of new neuroscientific findings.² These doubts from the brain research camp arose mainly because the methods used to diagnose brain death are mostly clinical methods (this is the case in Germany), for example, determining apnoea and whether brain stem reflexes are still present. The diagnostic investigations do not require certain mechanical diagnostic procedures such as an Electroencephalogram (EEG) or angiography, which were apparently necessary to ensure that the patient is really brain dead. There have been reports of cases in which patients, who were clinically diagnosed with brain death exhibited persistent intracranial blood flow or electrical brain activity.³

On the one hand, serious concerns were raised about the difficulties of making a reliable brain death diagnosis, while on the other hand increasing doubts emerged about whether the connection between brain death and physical death is reasonable per se and empirically maintainable.⁴ So far, it has been assumed that immediately after brain death , actual, real or physical death – in the sense of cardiac arrest – would also occur. Nowadays that notion of a tight and inevitable connection can no longer be maintained. One case is known in which 14 years have elapsed between brain death and death.⁵ Furthermore, the proposition that the brain fulfills functions that maintain the integrity of the body as a living organism and the loss of which causes the body to disintegrate, leading to cardiac arrest over a period of days, has gone unchallenged for a long time and is one of the central arguments in defense of the brain death concept. However, this proposition is no longer maintainable. As the medical ethicists Franklin Miller and Robert Truog put it, “the human body does not need the brain to integrate homeostatic functions […]. Patients who fulfill all of the diagnostic criteria for brain death remain alive in virtually every sense except for the fact that they have permanently lost the capacity for consciousness ” (Miller and Truog 2008, p. 39).