National Review has come out with an editorial against a recent editorial in Nature, advocating a change in the legal standards of death to facilitate organ donation. While I agree that we should be very careful in doing so, and I also agree that this could actually reduce the number of people willing to donate, I disagree that it’s not worth discussing, or considering, as the NR editors believe. Here’s the key point that I think both sides miss:

The editorial asserts that current law misunderstands death as an event rather than a process — which hardly justifies refusing to wait until the process is over. This argument merely puts a “scientific” gloss on a value judgment. Nature argues further that current law supposedly pushes doctors to lie about when death has occurred to get organs. But it is the utilitarian, parts-is-parts attitude toward human life that pushes some doctors this way, and that this proposal exemplifies.

…The editorial concludes that “concerns about the legal details of declaring death in someone who will never again be the person he or she was should be weighed against the value of giving a full and healthy life to someone who will die without a transplant.” Whether someone is actually dead is not a “legal detail.”

The problem is that death is a process that the law doesn’t recognize and that yes, whether someone is actually dead (at least in conventional terms) really is a legal detail (for instance, it varies from state to state — what is legally “dead” in CA may not be in NY). This is the problem that cryonicists have had for decades, except in their case, they want to donate their own organs to their future selves, and thus they tend to have a self interest in getting a legal declaration of death as soon as possible, even if not clinically dead.

As I wrote years ago during the Ted Williams controversy (one that has, unlike Ted himself, become recently resurrected in a macabre way):

The popular and conventional view of death is that it’s a discrete condition; now you’re living — now you’re dead. The weary declaration of the sawbones is just a formality — we all know from the movies that when the bad guy has been shot down violently, screaming or groaning, or breathed his last, he’s dead, or when the heroine gently closes her eyes, she’s gone to a better place, never to return.

But real life, and death, is a bit more complicated than that. It is not an objective, scientific condition, but a legal one, declared by a doctor or coroner. It’s like baseball. A ball thrown over the plate is not a ball or a strike until the umpire calls it.

The reality is that life and death are not binary states — from one to the other is a gradual transition. Rather than an instantaneous transformation from living to resting eternally, the body gradually shuts the plant doors and turns out the lights, one by one. Cells die individually, and the rhythm of life slows steadily to a halt.

But even that halt can be restarted with defibrillators and enthusiastic inflation of lungs with oxygen. In fact, modern hypothermic surgical techniques take a patient into what most would think a state of death (no heartbeat, flat-lined electro-encephalogram, no respiration) and then return them to life. In fact, during the properly performed cryonic suspension, such resuscitation is done (after a legal declaration of death), though under deep anaesthesia, to allow proper circulation of the cryoprotectant fluids throughout the body and particularly to the brain.

There’s no point at which we can objectively and scientifically say, “now the patient is dead — there is no return from this state,” because as we understand more about human physiology, and experience more instances of extreme conditions of human experiences, we discover that a condition we once thought was beyond hope can routinely be recovered to a full and vibrant existence.

Death is thus not an absolute, but a relative state, and appropriate medical treatment is a function of current medical knowledge and available resources. What constituted more-than-sufficient grounds for declaration of death in the past might today mean the use of heroic, or even routine, medical procedures for resuscitation. Even today, someone who suffers a massive cardiac infarction in the remote jungles of Bolivia might be declared dead, because no means is readily available to treat him, whereas the same patient a couple blocks from Cedars-Sinai in Beverly Hills might be transported to the cardiac intensive-care unit, and live many years more.

So it’s not as clean cut as the NR editors might like it to be. Doctors have to make a decision in order to save lives, and sometimes they have to confront ugly choices about which life to save, in a real-life lifeboat dilemma. There is only one death that is real and irreversible, and that is (as I describe at the link) information death (and some people think even that may be ultimately overcome through quantum mechanical dervishes of one sort or another). If we’re going to have a useful ethical discussion on this issue, we have to come to terms and some kind of agreement on basic assumptions, not about when death occurs per se, which will always be somewhat arbitrary, but when we can consider someone available to be a donor. It’s not a pleasant conversation, but it’s a necessary one, unless and until the NR editors can come up with a better and more objective definition of their own.