The Health Care Civil Rights Task Force strongly condemns proposed changes to the Uniform Determination of Death Act (UDDA) that would allow for subjective determinations of death. The Uniform Law Commission, a non-profit group of lawyers that creates model legislation to bring uniformity to state laws, week recently to discuss changing how death is determined. The revised UDDA would apply to both brain death and circulatory/respiratory death. Currently, a declaration of death requires the irreversible cessation of either all circulatory and respiratory functions or all functions of the entire brain, including the brain stem.
The proposed language would replace “irreversible” with “permanent.” This is a critical difference. An irreversible loss of function means there is no possibility of recovery. A permanent loss of function, on the other hand, means only that recovery did not happen while the person was alive. The ULC’s Discussion Draft on the revised UDDA acknowledges that permanent means “will not be reversed,” while irreversible means “cannot be reversed.”
Regarding brain death, the current UDDA requires irreversible cessation of all functions of the entire brain, including the brain stem. The new language would modify this language to require a permanent loss of brainstem reflexes. This change replaces the current robust “whole brain” criteria with a significantly more limited three-pronged subjective test. It represents a tacit admission that the alleged bright line between life and death touted by proponents of the concept of brain death is in fact ambiguous.
The purpose of changing the UDDA is to facilitate the availability of organs for transplant. For example, the proposed language provides legal haven for a procedure known as controlled donation after circulatory determination of death (cDCDD). This entails withdrawing care, usually nutrition, from a patient who has suffered a brain injury and imposing a “do not resuscitate” order. After a few days or weeks, the lack of nutrition precipitates a cardiac event during which the patient is not revived. When the patient’s heart stops, physicians observe a two to five minute “do not touch” period before making a formal declaration of death. At that time, blood flow to the brain is cut off to ensure that the patient does not wake up. The patient is then placed on life support and the heart is reanimated to ensure that organs remain viable. Because the patient’s heart could be reanimated, by definition, the loss of circulatory function is not irreversible. The patient did, however, suffer permanent loss of function since the patient legally died before being reanimated.
Most people who check the organ donor box on their drivers’ license application have no idea how human organs are procured. In every other surgical context, meaningful informed consent requires at least a basic knowledge of the procedure and its risks. But all it takes to get on the organ donor registry is a simple check mark – not even a designated signature is required. And no one is expressly told that a heart must be beating before it can be transplanted into someone else.
Over 40 states have adopted, in whole or in part, the UDDA. If the Uniform Law Commission adopts the proposed language, all of those states will have to change their laws governing the determination of death to conform to the new UDDA.
The new language casts doubt on the ability of doctors to determine death with the objective, apodictic certainty required in matters of life and death. Introducing vague, subjective elements into UDDA relativizes the biological criteria for the determination of death and erodes trust in the medical profession.
The Health Care Civil Rights Task Force is a collaboration of national organizations committed to protecting the sanctity of human life in medical decision-making.
Michael Arthur Vacca, M.Theol., JD, BA
Director of Ministry, Bioethics, and Membership Experience, Christ Medicus Foundation
Vice President, Health Advocacy and Leadership Organization (HALO)
Alexandra Snyder, Esq.
CEO, Life Legal Defense Foundation
Patricia A. Sayers, DNP RN
President, National Association of Catholic Nurses, USA
Joseph Meaney, Ph.D.
President, National Catholic Bioethics Center
President and Founder, Terri Schiavo Life and Hope Network