What We Argue About When We Argue About Death

Abstract

I. INTRODUCTION

On June 29, 2018, news outlets reported that Jahi McMath had died (Schmidt, 2018). The state of California and physicians at Children’s Hospital Oakland disagreed: according to them she died more than 4 years earlier, after her brain function was irreversibly destroyed by complications from routine surgery. Jahi’s family never accepted the physician’s claims, insisting—as they saw it, on the basis of their Christian faith—that she remained alive as long as her heart was beating. Nailah Winkfield, Jahi’s mother, arranged to move the family to New Jersey, one of two states that permit patients and their families some latitude to decide which standard of death should be applied. This seems to have allowed the family to access substantial healthcare resources, initially in an ICU and eventually via round-the-clock nursing care in a home setting. During this period, substantial uncertainty arose as to whether Jahi could possibly have lost all brain function in 2013, given evidence of substantial recovery of capacity, including, arguably, response to verbal stimuli (Shewmon and Salamon, 2021). A trial was pending that may have determined whether she was actually legally dead, before the events of June 22 made it a moot point.

There are various controversies in this case, including empirical ones, about whether Jahi McMath had ever really lost all brain function. But, there is also a deeper controversy about whether losing all brain function is sufficient for death. Nailah Winkfield is not alone in objecting to the legal status quo regarding death. Many people, religious or not, are skeptical that loss of all brain function suffices for death, when other biological functions remain. And, this is not the only point of controversy. Others take the opposite view: they are skeptical that it is necessary to lose all brain function to be dead—insisting, for instance, that organ donors ought to be eligible to have their organs procured as soon as they irreversibly lose consciousness, whatever the state of the remainder of their brain.

As these examples indicate, much is at stake with respect to the determination of death. Death, like consent, is morally transformative. Before a body dies, we often have obligations to intervene extensively in it, to keep it from degeneration and decay; afterwards we are obligated only to see that the manner and place of its dissolution respects the dignity and wishes of the decedent. After a body dies, its vital organs can (with appropriate consent) be removed and redistributed; before death, to disrupt the integrity of the body so profoundly would be impermissible even with consent—and so on, and so forth.

What should we be arguing about, when we argue about death? I argue here that the key public justification for death-related policies in the United States, the two major reports by presidential bioethics advisory bodies, ask the wrong question about death—assuming, tendentiously, that death is the end of our existence as living organisms. Even if this broadly biological view of human death is true, I argue, it is not the kind of truth we can insist on against reasonable and deeply rooted disagreement, any more than we could insist on a view of death that conceived dying as the end of the psychologically specified person, or as the departure of the soul. All such views draw on presumptions concerning the nature of life, mind, and personhood that are too profoundly controversial to ground the imposition of policy on those who reasonably disagree.

I argue instead that what we ought to argue about, when we argue about death, is whether bodily functioning has declined so substantially as to produce the moral transformations sketched above. This approach to the concept of death is related to a proposal by Robert Veatch to define death, in the first instance, in similarly socio-legal terms as the loss of “full moral standing,” the point at which someone is “no longer with us as a member of the moral community” (2005, 359). I develop it differently, however, focusing not (with Veatch) on the loss of moral status as such, but rather on two politically salient moral transformations in particular: (1) the loss of the standard structure of positive claims to healthcare interventions, including interventions we would normally regard as “life support”; and (2) the loss of negative claims against interventions (i.e., organ extraction) that could otherwise constitute homicide.

In doing so, I hope to sketch the conceptual prerequisites of a political conception of death: something we can talk about, when we talk in public about death and dying, despite our many and deep disagreements as to the true nature and meaning of human life. In that sense, this is a project in the spirit of public reason liberalism—a critique of existing discourse in terms of its failure to take reasonable pluralism seriously, and an attempt to defend the possibility of an alternative approach that does better on this score (Larmore, 1990; Rawls, 2005).

My goal here is, thus, more to shift the argumentative terrain in debates about death, than to identify a particular criterion or standard for determining what death is as a phenomenon in the world.¹ Before deciding which concrete standard (higher-brain, whole-brain, cardiorespiratory, or other) to use, we need a better sense of what considerations can and cannot serve to justify a decision. Still, I suggest, in conclusion, that this basic approach to death serves as a starting point for an important kind of pluralism about death criteria as well. Whether this is so depends on what should be our political conception of life, death, and embodiment, not the political concept of death defended in detail here. But suppose that philosophers like Norman Daniels (2008) are correct that our public political claims regarding bodily functioning are grounded in something like a right to equal or adequate opportunity. In that case, I argue, what precisely counts as someone’s death, for moral and legal purposes, may well depend on their values and choices and the nature of their social context, possibly including their family’s interests and preferences.²

So, my hope is to show how debates about death can accommodate deep and reasonable pluralism about the nature of life, soul, and personhood: by accepting a definition of the concept of death that all can accept in common, while allowing that particular substantive criteria for death can vary, depending on the reasonable comprehensive doctrines of decedents and their families.

II. DETERMINING DEATH: A JUSTIFICATORY HISTORY

My first argument states that we have to talk about death differently in public if we want our death-related practices to be justifiable from different reasonable points of view in a pluralistic society.

How do we presently argue about death—in policy, and at the bedside? In the McMath case, as in most cases in the United States, determination of death was made with reference to a legal standard established in various state-specific instantiations of the Uniform Definition of Death Act (UDDA), a model statute proposed in 1981 by the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1981). A brief review of the history of official and semi-official debates about this set of statutes helps us to see some serious problems with how decisions about death are presently publicly justified.

The 1981 commission argued that the loss of all brain function is sufficient for death, and that the loss of all brain function could be evidenced either (1) by irreversible loss of the capacity for respiration and circulation, or (2) by loss of brain function as indicated directly by neurological tests. The second clause reflected the main clinical innovation, since death had traditionally been determined on the basis of breathing and (later, with the invention of the stethoscope) pulse. However, in framing the issue, the Commission was not merely making a technical point about methods of diagnosis. The rationale for this shift in clinical standards was that the development of life support technologies offered us a new window on what had always been the nature of death. Death, they seemed to suppose, has always been the cessation of those functions that define a human organism as an integrated whole.³ Advancements in biomedical science simply showed us that the heart and lungs were less central to organic integration than we had thought: what really matters is the brain, the organ that—even absent conscious thought—regulates the function of the body as a whole. The loss of brain function, they argued, did not just causally lead to, but in fact entailed, the death of the organism. After the loss of all brain function, any appearance of life was an illusion, animation by technological trickery rather than the spontaneous self-maintained functioning constitutive of life.

Much of the ensuing controversy has concerned this brain-based way of understanding the end of the life of a human organism. Alan Shewmon (2001) and others (DeGrazia, 2005) argued powerfully that integrating functions are distributed through the body rather than concentrated solely in the brain—circulation itself, they argue, is our most significant integrating function, a single set of flows that supply all tissues in the body with essential resources while removing toxic waste products. The brain-based view was, however, further defended by a Presidential Council in 2008 (President’s Council on Bioethics, 2008). This Council argued that life requires not merely integration, but integration aimed at a particular purpose: the organism’s continuing quest to maintain itself against entropic disintegration in a hostile environment. Brain function, they argued, is essential to this “vital work” in human beings specifically, even if other bona fide organisms (plants, etc.) integrate themselves without it. This rejoinder has not convinced critics. Still, as yet, there does not seem to have been any real movement away from brain death as a statutory standard for determining death.⁴

III. LIFE AND DEATH: LIMITS TO A BIOLOGICAL PARADIGM

What this brief history shows, I think, is that our public story about the definition of death, as presented in the two Presidential reports, has primarily been a broadly biological one—but, also, that the biology has been hotly contested, and on matters that promise no easy empirical resolution. The disagreement between the Council and its critics runs deep. It is not only about which technical signs and symptoms reliably indicate cessation of organic function. It is also about which functions define life as such. Really, this is an issue in the philosophy of biology as much as biology per se. The considerations adduced on each side are subtle almost to the point of scholasticism: what counts as “integrating” function in a human being, and what goals integration must be oriented toward to count as the integration characteristic of life, as compared to lesser, merely physiochemical kinds of integrity.

Given the difficulties of the cases for and against a brain-based conception of the death of a human organism, it seems fair for patients and their families to “stand pat” on a traditional, circulatory standard for the end of human life—even if the commissions are correct about brain-based death as a matter of theoretical biology. Ordinary citizens can sometimes be asked to defer to technical experts. But, in matters that so profoundly concern their lives, it seems wrong to ask for deference where experts deeply disagree, and do so in ways that do not seem to be resolvable by standard scientific methods. Now the same sort of argument, I stress, would apply mutatis mutandis to a reformulation of the legal definition of death in circulatory terms: such a definition would, equally, be unsupportable by reference to actual expert consensus on matters of biology.

So, a definition of death as the end of the human organism seems sure to embroil us in profound philosophical controversies about the nature of life. What may be worse, adopting this definition precludes other ways of thinking about death that reasonable people might well want to affirm. For example, many philosophers have thought that “death” ought to be understood in the first instance in terms of the end of the person, rather than the end of the life of the human organism. As Karen Gervais (1986) and John Lizza (2006) have argued, this is in prima facie tension with a biological paradigm, whether persons often or ever predecease organisms or not; these definitions are not the same, even if they have the same consequences under certain (implausible) factual assumptions about the relationship between life and personhood.⁵ Or: consider traditional religious views, according to which death is defined, in the first instance, as the departure of the soul from the body. Even if this soul-based definition is consistent with the claim that death always occurs only at the end of the life of the organism, it is still distinguishable from an organic approach. After all, one can coherently hold that to say that someone is dead is to say they are desouled without holding that desoulment (and thus death) always exactly tracks dis-animation.

I conclude: existing public justifications for both brain-based and cardiopulmonary criteria for death require taking positions in profound philosophical controversies. Thus, there is at present no plausible account of why we should proceed with either criterion, which does not involve adopting a definitional approach to death that some of us can and will reject, on the basis of widespread and reasonable views about the nature of life, mind, and personhood.

IV. JUSTIFYING DEATH BEHAVIORS

The possibility of reasonable disagreement, in death contexts, presents a serious ethical challenge to those policymakers and practitioners that must make and justify decisions that hinge on the definition of death. They have us talk to someone, often someone who is grieving for the recent or imminent loss of a loved one, that we undertake actions they object to—perhaps the removal of life support, perhaps frustrating the decedent’s wish to give healthy organs. We say to them that we do these things because of certain deep truths about the nature of life, person, and mind, truths that are supposed to be relevant not because the family or patient believes in them, but simply because they are truths. It seems fair for the family of the decedent to react the way Jahi McMath’s family did: to feel disrespected and condescended to. In response, they might then say: “You, you doctors and philosophers and bioethicists—you may be right about death. But who made you boss?”

At this point, no further appeal to science will suffice. The objection is not that any scientifically grounded criteria for death is false, but rather that its truth does not provide sufficient reason to impose it on others—any more than the truth, if it is true, of Christian doctrine about our place in the universe provides a reason to establish a state-sponsored Christian church. The priests and ministers may be right about what we need for our souls—maybe even demonstrably right, if their arguments are as strong as some of them think—but that does not make it the case that their truths can be imposed on those who disagree.

To be clear: the problem in the McMath case and cases like it is not disagreement per se, but rather disagreement of a certain kind—as political philosophers like Rawls put it, deeply “reasonable” ones. Among these are disagreements that (1) arise from the profound difficulty of the religious and metaphysical questions at issue and (2) therefore, tend to divide people on the basis of overall faith tradition and worldview (Rawls, 2005). Imposing consensus where disagreement has these features leaves us with little to say to those who disagree; per (1), we cannot reasonably expect them to become convinced that we are right (say, that death is in the first instance the end of the organism, rather than the separation of body and soul). At most we can say that some such imposition is unavoidable: on some issues, we cannot simply agree to disagree. Now it is better and more respectful to avoid these impositions when we can, not I the least because proceeding with them tends to inflame sectarian conflict, preventing the emergence and maintenance of peaceable social cooperation in a pluralistic society.

V. CONSCIENTIOUS OBJECTION

The problem of pluralism in the definition of death has long been on the agenda of death theorists. Thus far, the primary response from various sides of the death debate has been to introduce a conscience clause, allowing people to (in some sense) determine what counts as death for themselves (Gervais, 1986; DeGrazia, 2005; Bagheri, 2007; Zeiler, 2009; Choong, 2013; Shah, 2015; Veatch and Ross, 2016; Veatch, 2019). Indeed, a few jurisdictions—at least New Jersey and Japan—currently allow some degree of latitude in this respect (Veatch and Ross, 2016). But, we should ask: are these sorts of laws enough, to ensure that our death-related practices are justifiable from all reasonable points of view?

Kristin Zeiler (2009) suggests, on broadly Rawlsian grounds, that the answer is yes—and, further, that we should be pluralists about “concepts”/“definitions” of death, as well as substantive criteria and clinical tests. Zeiler’s pluralism may seem initially to be supported by a general semantic flexibility about “death”—a perspective supported, in different ways, by theorists as otherwise diverse as Alan Shewmon (2010), Robert Veatch (2005), and Winston Chiong (2005). Each of these authors notes that the ordinary language of death itself is indeterminate, allowing for multiple legitimate precisifications. Insofar as this indeterminacy allows us to make sense of the idea of different concepts that are nonetheless all concepts of death, it serves Zeiler’s purposes, establishing the coherence of pluralism about death concepts as well as death criteria.

On reflection, however, there are good reasons to think that those who share medical, social, and legal institutions require at least one common concept of death—one question all can commonly ask when they ask whether someone has died. For, a lack of common concepts poses real and potential problems, both at the bedside, and in public policy.

To see the first set of problems, return to the case of Jahi McMath. Jahi’s family, and her doctors, found themselves at an impasse: reportedly, a senior physician became so frustrated attempting to justify the hospital’s conduct that he pounded his hands on the table, asking “what don’t you understand?” The story may be apocryphal, but the quotation is telling, suggesting the possibility that parties to this case were unable to make justificatory progress because they were simply “talking past each other,” some meaning one thing by “death,” others another.⁶ The problem seems to have been not only that they disagreed on the substantive standard of death, but that they could not even identify just what it was they were disagreeing about. To the physicians, questioning whether someone who lost all brain function was dead was like questioning whether someone who has a malignant tumor in their pancreas has cancer—not just wrong, but confused, in a way that it is hard to resolve without simply repeating oneself.

As Michael Nair-Collins (2013) points out, confusions like these raise a serious moral problem regarding the justification of death behaviors, like removing life support and/or commencing extraction of vital organs. If ordinary people mean one thing by “death,” and physicians and consent documents mean another, then patients and families may not be giving genuinely informed consent to these profoundly significant interventions.

To be sure: these problems, in principle, might be addressed by a kind of transparency about the range of possible concepts of death. If consent documents for organ extraction were explicit that “death” is being used as a term of art, to mark the end of the organism, consentors would be in a position to know that this might proceed before their loved one is “dead” as they understand the term (even if many would not actually know this, having not “read the fine print”). And, in some cases, transparency might resolve confusion. The physician in the Jahi McMath case might understand what the family is “not getting,” if he understood that what they meant by death is in the first instance the departure of the soul from the body (as evidenced by cessation of breathing and circulation), rather than the end of biological life (as indicated by loss of the integrative functioning of the brain).

That said, there are limits on what mere transparency can accomplish here. Knowing what families mean by death, physicians, medical institutions, and policymakers still need to know what they themselves are going to mean, when they do need to make assertions about death. First, not all decisions that depend on the details of how we determine death can be made in view of the preferences of the decedents. Sometimes we do not know of any authoritative expression of preference on the part of the patient, whether because the patient is too young or incapacitated to have authoritative preferences on matters like these or because, though competent, they have never to our knowledge expressed them. In some such cases, we do not even have a surrogate on hand. In those cases, we need a “default” view. Second, a central default view may also be required to determine the boundaries of “reasonable” pluralism in the definition of death; some views may need to be rejected, on grounds that they are too exotic to coexist with the mainstream approach. Third, not every decision that hinges on the determination of death is a decision that affects only particular patients with determinable preferences as to the definition thereof. For, how we determine death—either for everyone, or a default—might well affect decisions at the level of policy, as well as the bedside.⁷ In all three cases, public institutions need to be able to say what they mean when they say that loss of all brain function (or, if reformers succeed, cardiorespiratory death) is to be the default standard of death.

It seems to me, then, that we need some degree of principled consensus on death on at least two (interrelated) levels: (sometimes) on what we actually count as death when we have to determine when death actually occurs, using common standards; (often) on what we take ourselves to be determining, when we are determining death using standards common or otherwise.

VI. LEGAL FICTIONS

So, we should ask: what should it mean to “die” for moral and legal purposes? One suggestion, pressed recently by Shah, Truog, and Miller (2011), is that we understand “legal” death as a sort of pretense—not actual death, but something we agree to treat as such. Impressed by aforementioned arguments against brain-based criteria for biological death, but concerned to preserve the broadly beneficial practice of beating-heart organ donation, Shah et al. propose that we continue to use a brain death standard to determine when death-related behaviors are appropriate, but portray it forthrightly as a legal fiction. The idea here is that much as the law treats corporations as persons, although they are not persons; the law does and should treat brain-dead humans as dead—although they are not in fact dead. In both cases, however, we should be careful not to conflate fiction and fact. Thus, they say that these fictions should be transparent, presented clearly as fictions.

Whatever their other merits, appeals to fiction, even transparent fictions, do little to assuage concerns about justification. What would Shah et al. have physicians and policymakers say to people like Nailah Winkfield? Something like this: “Your daughter is not dead, yet. However, we, as a society, have agreed to treat people like her as if they were—among other reasons, to conserve critical care resources for other living people, and to increase the organ supply. Therefore, we will be withdrawing life support now, from your living daughter.”⁸ It seems unlikely that this justification will satisfy believers in a traditional criterion of death: how can the fact that Jahi is, though actually alive, still fictionally dead, justify doing the sorts of things we normally do when and because someone is dead? Being “fictionally dead” appears to mean: (a) being appropriately treated as dead; and (b) not being non-fictionally dead—that is, not being dead simpliciter. Offering (a) as a reason to treat someone as dead is circular reasoning; offering (b) in this context is an irrelevant and probably confusing distraction—not to mention, a gratuitous insult to the views of other reasonable citizens whose metaphysical views support brain-based criteria.

VII. SOCIAL CONSTRUCTIONS

An alternative understanding of public standards of death, long promoted by Robert Veatch, promises to avoid some of these difficulties. On Veatch’s view, our operative public standards of death need involve no fictionalizing or metaphorical use of “death.” Rather, he argues that “dead” has come to be ambiguous, referring either to death in something like the traditional biological sense or to death in a different, ethical-legal sense.⁹

Veatch precisifies this latter sense differently in different places. At one point, he suggests that death simply is the point at which certain key death behaviors are appropriate—making the “dead donor rule,” requiring that we wait for death for organ donation, “true by definition” (as the title of one of his articles has it) (Veatch, 2003). As DeGrazia points out, this formulation produces some of the same difficulties mentioned above for the “legal fiction view.” After all, the proposition expressed by “that someone ought to be treated as dead” is not a reason that they ought to be treated as dead—it is just the same proposition, repeated twice (DeGrazia, 2005, 141). In other writing, however, Veatch is more careful, avoiding concerns about circular justification. The socio-legal disambiguation of death, he says, should be defined as the “phenomenon that triggers a loss of full moral status” (Veatch, 2005, 364)—the phenomenon that triggers or justifies this loss, not the loss of status itself.

DeGrazia (2005) objects to this last reformulation of death as well, suggesting that it implies, implausibly, that if some human beings did not have full moral status—say, because they have been enslaved, or have a low-caste status—then they would be dead. Now, Veatch might object to DeGrazia’s choice of example, denying that it is an embarrassment for his definition in that it delivers absurd results (enslaving someone kills them) on the supposition of absurd premises (enslaving someone actually removes their moral status). But, a better-selected example might be less open to this objection—perhaps, for instance, there are circumstances in which a sufficiently heinous crime could render someone an “outlaw,” in the old sense, no longer protected by legal or indeed moral norms. This, anyway, seems less obviously absurd than the claim that enslavement erases moral status; yet, it seems no less absurd to say that outlaws are actually dead.

For this reason, we should adjust this moralized definition of death so as to define death in terms of a more specific kind of phenomenon: that change in the functional capacities of the body that triggers a loss of moral status. Since enslavement and outlawry are not functional changes in the body, they would not be death on this view, not even if (improbably) they involved a loss of full moral status. This adjustment might seem ad hoc. But it is, I think, likely a move worth making anyway: even if death cannot be defined primarily in biological terms, it does seem to be a concept with some sort of biological or at least functional content: what we talk about, when we talk about death, is not merely a moral transformation of a certain particularly profound kind, but a transformation of that kind that is characteristically triggered by a decline in something like integrative functioning.¹⁰ This, I suggest, is why talk of “slavery as social death” strikes us more as a powerful metaphor than as a literal claim about the metaphysics of enslavement: a slave society may deny claims to those who are enslaved, but it does not purport to say that they have ceased to be living human beings.

However, Veatch’s view, thusly clarified, still faces problems regarding pluralism and justification. Veatch begins from the promising idea that death is whatever change in a person explains the occurrence of a certain significant set of moral transformations—those that together permit (inter alia) the commencement of “death behaviors” like discontinuing the option of ventilation and extraction of vital organs. Where he goes astray is in the further claim he makes about the nature of the moral change that warrants the actions we take in response to someone’s death. In explicating this, Veatch is, in fact, not much more metaphysically modest than proponents of biological or personhood-based views. “Moral status” itself is a deep and contested philosophical concept. Indeed, he himself asserts that any view on these matters is “based directly on one’s religious or philosophical world-view of the essence of the human”; basing his view, specifically, on the “Judeo-Christian world view (or a modern version of it)” (Veatch, 2005, 364). If Veatch is right that moral status can only be understood in terms of these deeper philosophical views, then it is hard to see how we could ever hope to use his version of the moralized view to proffer a concept of death that we can ask all reasonable people to converge upon, for the various purposes described above. Reasonable people disagree vehemently and intractably as to the moral status of fetuses, animals, and human beings so profoundly disabled as to lack any significant brain function at all. Thus, there seems, on a Veatchian view, to be little prospect of achieving any kind of “overlapping consensus” around death so defined—a kind of consensus that (I have argued) we ought to want, even if we allow for substantial variation in the standards that apply in particular cases.

A further concern about Veatch’s view, as a response to reasonable pluralism, comes from the capacious character of the list of “death behaviors” he takes to be relevant in delineating a socio-legal concept of death. Here, I think, adopting Veatch’s definition as part of a public criterion for death would require more uniformity regarding the moral import of death than can or should be expected in a pluralistic society. Our common concept of death should require only as much agreement as is required to justify the things that we have to justify to each other. And not all of Veatch’s “death behaviors” require public justification. Consider the following list:

1. “stopping of certain life-supporting treatments,

2. procuring “life-prolonging” organs,

3. beginning the mourning process,

4. reading the will,

5. initiating the funeral and burial ritual,

6. stopping health insurance coverage,

7. initiating the payment of the principal for life insurance,

8. transferring presidential title in the case that the one pronounced dead happened to be the president of the United States”

Of these, only 1 and 2 definitely require reference to substantive public standards.¹¹ As to wills (4), the time of reading relative to the decedent’s chosen criteria of death could be written in, according to their preference. Something similar seems to go for insurance contracts (6 and 7)—insofar as these are private contractual instruments, a standard for determining death can be incorporated according to the preferences of the parties. To the extent that health insurance in particular is public or publicly regulated, some reference to public standards may well be required—but these, one would think, would coincide with whatever the public standards say about (1), when care can be legitimately withdrawn (similar points seem to apply to presidential succession, 8). As to mourning behaviors (3 and 5), people can grieve when and how they please, according to their private views and attitudes. Or at least, they can do so within the limits of public safety and respect for the integrity of persons still deemed legally living, according to whatever standards control decisions about organ transplantation.

VIII. A POLITICAL CONCEPT OF DEATH

I agree with Veatch (as he should be understood), then, that death ought to be defined as that degree of functional dissipation that transforms the moral status of certain death behaviors. However, the pluralism-based argument for this definition I offered here suggests that, for purposes of defining at least one very important sense of “death,” we restrict the range of this definition be restricted to those behaviors that we really do have to justify to one another. This set, I suggest, primarily concerns matters that cannot be left up to individual choice, whether because they relate to potentially inalienable rights against killing, or to the distribution of scarce resources.

Thus, I would suggest that we ought to hope for consensus around a concept of death captured by the following schema:

To die, in the sense of “death” that ought to be used in legal and political contexts, is to reach that level of functional decline F_D, such that, as soon as someone’s body has reached F_D, it is no infringement of their (past or present) moral rights either (1) to withhold interventions that would prevent further functional decline in that body; or (2) to perform interventions which would produce further functional decline and/or preclude functional recovery.

This definition, I think, has significant advantages over definitions of death in terms of the end of the human organism or person. These ways of posing the question of death make it impossible to argue about it without taking positions we cannot expect all reasonable interlocutors to accept. A rights-based definition promises to do better, here, asking only for as much consensus as is really required, to make the decisions we are really required to make together.

Consider, for instance, how such an account would have us talk in a case like Jahi McMath’s. Instead of insisting that their daughter is dead because she is no longer a person or living organism, her physicians could be understood to say, simply, that she is dead in the sense that she has reached a point of decline at which the health system no longer recognizes her as an eligible patient, possessed of a body that warrants the sorts of treatments and protections medical institutions proffer to the living. They would not need to confuse matters, here, by saying that she is only “fictionally” dead—that is to say, not really dead. That said, they could and should stand on the authority of the law, clarifying that it is not their place to say whether she is dead and gone in the metaphysical/theological sense the family means, but, rather, only to use their technical skills to interpret the legally enshrined criteria for death in the publicly enshrined rights-based sense of “death.”¹² Although it is an empirical question whether families like Jahi’s would be satisfied with this way of talking about death, there is a normative case to be made that they should be. After all, per above, we need to coordinate around some definition of death, and the one we coordinate around ought to be as respectful of reasonable disagreement as possible.

The argument is, admittedly, not yet complete. It remains possible for an opponent to insist that there is in the end no way to accommodate pluralism in our definition of death; rather, we must simply choose one metaphysically laden definition or the other, perhaps appealing to devices like legal fictions and conscientious objection to accommodate people who cannot accept that approach.

Indeed, it has been argued—by Jeremy Williams (2017), among others—that there is in the end no way to justify any particular standard for death and dying without taking metaphysical or moral stances that go beyond the boundaries of Rawls’ “public reason.” If critics like Williams are right, there may not be much point to prescinding to the kind of minimalist moralized definition of death that I have proposed here—if deeper metaphysical or ethical views are required to say when someone has died, why not appeal to these in specifying the concept of death itself? To defend this metaphysically aseptic approach to the definition of death, then, we should defend the possibility that a substantive standard (or, per above, a constrained set of such standards) can be provided, without appeal to the same sorts of metaphysical concerns presented above as problems for existing definitions. In the limit: that the question posed by this political concept of death can be answered, in a manner acceptable in principle to all reasonable views, by a political conception of death—ideally, per above, a default standard (brain-based or otherwise), together with some account of how individual beliefs and choices can permit variations.

The remainder of the paper does this in two steps—first, by rebutting reasons to believe that no political conception of death is possible; second, by providing a proof of possibility by outlining one way of constructing a substantive standard for death that does not seem to require any appeal to moral or metaphysical premises beyond the boundaries of public reason.

There are various reasons to worry whether we can expect agreement among reasonable people on the resources needed to defend any particular criterion for determining death, even starting from the minimal politically oriented definition I have proposed. The first concern is about the biological content of the view. I complained above that the approach of the Commission and Council trespassed into significant controversies, in the philosophy of biology, on the definition of life. I did not mean, however, to suggest that a definition of death should make biology irrelevant to death; that would be absurd. Indeed, my proposed definition does mention the biological-sounding notion of functional decline.¹³ Is this notion itself excessively controversial, subject to the same problems raised above for appeal to biology in defining death?

I think not. Although there are controversies in the philosophy of biology about the definition of function, they have no obvious relevance to the question of death. Philosophers debating function have tended to take the deliverances of biological science as given; the question is not, which functions there are, but rather how to understand what unites the items on a relatively uncontroversial list.¹⁴ Now there is nothing wrong with deference to science, from the perspective of public reason; any sensible society has to defer to experts even when many nonexpert citizens disagree. What is a problem is when the experts, to whom we are supposed to defer, can only defend their views in terms of philosophical premises characteristic of controversial comprehensive doctrines, like secular humanism or Thomistic metaphysics. That seems to be the situation with respect to the definition of life. Whether an organism has declined in function at all is a scientific matter; whether some object no longer functions enough to be a living organism at all is a philosophical one.

A second, more serious concern is about the metaphysics of human beings or persons, rather than the metaphysics of life and function. To define death in terms of rights is to set up debates about death as debates about rights. But, (so it might be argued) surely nothing can have rights unless it exists. So then, it looks like we need to settle questions about how long we continue to exist to settle the question about when we are alive and dead. As Williams points out, these are among the questions that we might hope to avoid, in constructing a conception of death acceptable to all reasonable points of view.

Note, first, that the proffered definition of death does not require agreement about the temporal boundaries of our existence as persons, or animals, or whatever else we really, fundamentally, are. Thus, if the right public standard turns out to be, say, brain-based death, the assertion of it in public reason need not conflict with the reasonable views of those who hold a consciousness- or personhood-based account of our persistence conditions. If you can infringe my rights, by interfering with my body, after I go out of existence, then the infringeability transition that constitutes my death can conceivably happen after I go out of existence. And, despite frequent protests to the contrary in the philosophical literature, there seems to be no good reason to deny that the moral force of a right can survive the end of its exercisor. A right in a thing like a body involves a kind of authority over it; a power to produce pro tanto obligations on others. An infringement is simply acting against these obligations. But, it seems to be no part of the idea of this authority that the commander survives to the moment at which the command is operative—it remains insubordination, for instance, for a soldier to stop following standing orders after the death of his commander.¹⁵

So, all public reason needs to make cogent claims about death is a very minimal metaphysics: only, that there is something that exists all throughout the period around a person’s death, over which their prior living will ordinarily has ongoing authority. Still, even if we can avoid concerns about metaphysical presuppositions concerning personhood, in defending a particular conception of death in rights-based terms, we might think that there are other controversial claims that cannot be avoided. For, we might think that these rights-claims presuppose something about interests. Say, that if and when we should no longer ventilate a body, that is because doing so produces nothing of value. Then, per Williams, we might worry that:

to distinguish between understandings of the conditions under which life remains worthwhile, or to affirm any one of them as the rationale for choosing between legal criteria of death, would be a paradigmatic violation of neutrality between reasonable conceptions of the good (2017, 17).

This, he goes on to say, would merely be to “swap one prohibited philosophical controversy,” about ontology, for another, about what makes a life worth living.

In response: a political conception of the good, an account of interests for purposes of public controversies, is not a set of consensus views about what is, in fact, good. Rather, it is an agreement about what we together should agree to treat as good, for our fellow citizens, in our collective decision-making—of those things to which that people should have access (to some extent, if they want them), compatible with others having the same sort of access on just terms. Thus, to make an assertion about interests in this sense, at or around the end of life is not necessarily to trespass into deep moral questions about what makes life worth living. Rather, it is to speak only about those public resources and capacities everyone has some sort of claim to access, whatever they think is ultimately of value in their life.

I conclude: to say when our rights in our living bodies become the very different sorts of rights we have in a corpse—to know when we “die,” in the bruited sense of “die”—we need not make controversial assertions about life, personhood, or value. That is to say, there is little reason to think that the question of death, thusly posed, analytically or conceptually requires an answer in terms of metaphysical or moral doctrines prohibited by norms of public reason.

That is not yet to show, however, that there is in fact a way of answering these questions inside public reason. It is one thing to rebut an argument where an appeal to controversial metaphysics is required, in order to answer a question, like the question of when a person has died. Nevertheless, it is quite another thing actually to answer that question without appeal to controversial metaphysics. I am not able to do the latter fully—either to delineate or defend a fully developed political conception of death. However, I suggest how certain ideas about opportunity, arising from the broadly Rawlsian tradition, could serve as a starting point prima facie adequate to arrive eventually at answers to the rights-questions characteristic of the concept of death as I have defined it.

IX. TOWARD A POLITICAL CONCEPTION OF DEATH

I take it, from the foregoing, that death, as I have proposed to define it, occurs when facts about our interests, as others must consider them, transform sufficiently to undermine our claims to continued support for our bodies and against fatally destructive interventions. So, to decide when we die, we should ask first: just what things are “good,” on a political conception of our good, such that even those who disagree profoundly about what ultimately matters can agree that it matters that everyone has access to these things, on fair terms? This is, of course, a large question, which I am unable to address fully here.

To see how we might try to answer it—and, thus, to see that (pace Williams), it is not intrinsically unanswerable, consider the following proposal. As Rawls (1988), Norman Daniels (2008), Elizabeth Anderson (2010), and others (Hausman, 2015) have argued, what we can demand of others in a pluralistic society is not well-being itself but rather a more restricted and more general set of means thereto—some reasonable share of the resources needed to facilitate our opportunity to participate in basic aspects of social life: working at employment we are suited for, engaging with our families and communities, voting and otherwise participating in politics. If this is right, then the standard for death, on our moral/political definition thereof, will turn out to be the point at which we no longer have these opportunity-based goods in prospect; this is when our publicly relevant interests cease to support obligations on others to protect and preserve the integrity of our bodies.

Now the claim to participatory opportunities might, as some have argued, seem to be too thin a reed on which to weigh all of our rights to health resources (Knight and Albertsen, 2015). It might seem, in particular, that the question of how long someone should continue on life support can hardly be decided by their right to vote, or to go to work: many people who should clearly continue on life support (if they wish) will never do any of these things again.

This objection, however, rests on a narrow reading of the kind of opportunity that a liberal state must foster—that this can only comprise social relations that involve active, intentional participation, and that occur outside the home. Philosophers of disability, among others, have powerfully argued that this is not the only kind of activity that ought to matter for present purposes (Nussbaum, 2006). Philosophers Christie Hartley (2009), Anita Silvers, and Leslie Francis (2005) have argued persuasively that anyone who can still engage in even the most rudimentary nonverbal forms of communication can relate to us in many of the ways we relate to others, including mutually enriching relations of care and trust. Indeed, insofar as serving as an object of care, itself, can constitute a central contribution to family life, even noncommunicative people can perhaps participate in some of the most important human relationships.

The suggestion, then, would be that the opportunity-based claims to health resources—ICU resources included—are not entirely attenuated until capacities are reduced beyond a very minimal level: perhaps, as little as the capacity to serve as an object of human care. Only then does the standard public basis for claims to continued health resources run out. This may not happen until very late in the sorts of processes that lead from (say) uncontrolled bleeding after surgical complications, through destruction of brain tissue, to complete cessation of all organic functions and decomposition. Thus, there is reason to believe that, despite appearances, this account can place the moment of death at or around the points identified by the main traditional views.

It also suggests, plausibly, that where exactly death happens, in functional terms, may vary from case to case—partly, perhaps, in a manner explained by the beliefs and capacities of actual caregivers. It may be precisely because Jahi had a mother who wanted to care for her that Jahi retained the capacity to participate in family life, even supposing she had permanently and irreversibly lost the capacity to do anything else. If so, then had Jahi had a different kind of family, her claims to health care would have run out earlier. On the view I am proposing, this would mean that when she actually died—not merely (as extant views would say) when we should act as if she had died—might be a function of the beliefs, preferences, and abilities of her family.¹⁶ This conception of death, therefore, may help to motivate the kind of pluralism about standards and criteria for death discussed above, even as (pace Zeiler) it insists on a need for a more monistic concept of death, for public purposes.

Variation in the right to enjoy opportunity can also occur, perhaps, on the basis of the patient’s own preferences and choices. Consider, for instance, what has come to be called “donation after circulatory death” (or DCD). In these cases, a patient may want the organs extracted before it literally becomes impossible to restore relevant capacities—roughly, between the actual stopping of the heart and the point at which neither heart nor brain function could be restored. Existing justifications of this practice blur the definition of “irreversibility” in the UDDA, conflating the facts that these patients will not and should not be resuscitated with the fact that they cannot be (Miller and Truog, 2008). This conflation runs counter to the basically biological justification of the UDDA definition, described above. Organisms in general die when and because they lose the capacity for integration, not when integrating processes should or will not be restarted (Marquis, 2010).

An ethico-legal definition of death can justify the practice of heart-beating (or heart-just-stopped beating) donation much more readily than a biological approach. On the version developed here, persons will be dead, for public purposes, when their capacities have declined so much as to transform our obligations regarding their body from the obligation we owe to paradigm living persons to the very different obligations we have regarding corpses. As argued, when precisely this moral transformation occurs may depend to some extent on the nature of the social context in which the patient operates, since this affects whether they have the relevant capacities. But, it may also depend on the choices the person has made about what do with their body on their death-bed. This is the case if it makes sense, morally, to allow people some power permanently to alienate the rights that preclude actions or omissions that will lead their body to stop functioning entirely. Such an act of alienation, in principle, could affect the timing of death itself: someone who has agreed to do this might die earlier in the process of functional dissipation than someone who had not, solely in virtue of the moral difference their prior affirmation makes.

That is not to say that anyone is dead simply when they say they are: there is good reason to insist that some of the more basic body rights are, by and large, inalienable, so that one cannot normally give up one’s most basic bodily claims. Thus this view does not have to count anyone as dead who is not already irreversibly set on the course of biological events that ordinarily lead to a loss of all function. Even when these rights can be alienated, there may be reason to deny that the alienation itself occurs at the same moment as the choice to alienate: we might, for instance, resist granting that choice permanent effect unless and until it really could make no good sense for the chooser to change her mind. Thus those who have waived all claims to life support, and against organ extraction, may not be dead in the instant they do so. Rather, death may wait until some later moment—perhaps when is it no longer possible for them to change their mind (because of permanent loss of consciousness), perhaps even longer.

Again, a full account of the political relevance of embodiment would be required to say just when (if ever) we should allow permanent alienation of bodily rights, and how that alienation should work, specifically.¹⁷ I suspect the best account concurs with the current consensus rejecting vital donation among those who are not on the verge of death anyway. From a public perspective, people need their bodies to navigate the world and pursue opportunity over a complete life. Our reasons to provide care and protection for one another’s bodies are, therefore, not dependent entirely on the interests or preferences of the actual present person, but rather depend also on what our current actions and choices might mean for the opportunities that person might thereby forego in the future. Thus, in living people, there are strong reasons not to allow excessively risky voluntary alienation of body parts. Near the end of life, however, these sorts of reasons may no longer apply quite so clearly or strongly. As we approach the point where the loss of significant function becomes inevitable, far fewer opportunities remain in the hypothetical future of the dying patient. In typical candidates for DCD, the only opportunities that could possibly be lost are for fleeting moments of connectedness to loved ones and caregivers in the five or so minutes between the moment at which the heart stops and the moment at which no possibility of significant relationships remains. In these cases, it seems highly plausible to think that the present person’s interest in directing the disposition of their body parts outweighs these relatively restricted opportunities. If this is the case, then the view mooted here would imply that the person is, in one perfectly good sense, simply dead, before loss of function becomes literally irreversible: their functioning will have reached a level that, in the context of their choices, no longer provides reasons against the performance of death behaviors like beginning the process of vital organ transplantation.

X. CONCLUSION

Bringing this all together: in a pluralistic society, death can and should be defined in ethical and legal terms: not quite, per Veatch, as the loss of moral status per se, or the phenomenon that triggers this loss, but rather as that degree of functional decline that signals the end of the special sort of authority we possess over our living bodies. I have not argued decisively for any particular standard (much less, clinical test), for determining death, so defined, though I have attempted to sketch (in response to critics like Williams) how an opportunity-based view could give determinate content to a substantive conception of death that answers this question. My main goal, however, is not to settle the question of when someone has died or how we can tell. For that we would need an argument for the opportunity-based view of our rights in our bodies, or for some other view altogether. Rather, I hope to have argued about just what question we should be asking, about death—not a question we can never hope to settle, about our ontological boundaries, but rather a question we must settle, about our moral ones.

ACKNOWLEDGEMENTS

Thanks to audiences at the Baylor College of Medicine, Fordham University, and the University of Chicago, my late colleague Bob Veatch, Dan Sulmasy and several anonymous reviewers for insightful discussion or comments on drafts. This work was supported by a Faculty Scholars Award from the Greenwall Foundation.

REFERENCES

Footnotes