conference proceedings of congress International Bioethics 1999. Bioethics and dignity in a pluralistic society

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Transplant ethics

Hans Thomas
Director of the Lindenthal Institüt (Cologne)

I. Brain death: criteria for organ removal or human death?
II. The discussion preceding the transplantation law in Germany
III. Brain death: Knowledge or convention?
IV.Philosophy or experience?
V. Brain death between life and death - a tertium comparationis?
VI. Ethical Implications for Transplant Medicine

I. Brain death: organ removal criteria or death of man? 

A transplantation law has been in place in Germany since 5 November 1997. framework The law was intended to help create a safety net for surgeons carrying out transplants and to encourage organ donation, since the number of organ donation is very high leave. In 1997, the annual average of donors after brain death was 13 per million inhabitants, compared to 27 in Spain1.

Since entrance the law came into force, the ethical discussion in Germany has focused on the principles of allocation, i.e. on the problem of a fair distribution of organs. According to the law, "compulsory organs" (heart, kidneys, liver, lungs, pancreas and intestine) may only be transferred to recognised transplantation centres2 .

A tendency on this discussion is to keep transplant surgeons themselves out of the allocation decision. This allocation should remain an organisational issue of an economic-social nature and should not become a triage decision of the doctors.

The law expressly does not cover blood donation, spinal cord donation, embryonic and foetal organs or tissues. Although the exclusion of the latter from the scope of application of the law does not seem obvious, it is certainly no coincidence, since experiments with injections of foetal tissue completely reverse the legal basis of rule. Indeed, according to the law, the death of the organ donor is a prerequisite for removal. This death is to be determined "according to the state of medical science". The determining factor is therefore brain death: the destruction of the entire brain. However, injections of foetal cells are only interesting if they are taken from the brain of a living foetus.

As far as organ donation from living donors is concerned, the law is very restrictive, despite (or perhaps because of?) the low number of organ donations after brain death availability . It allows kidney donation only between first and second relatives Degree, between spouses, boyfriends and girlfriends or between people with a close relationship, and only after the declaration of two impartial doctors and after examination of the motives and circumstances by an advisory committee.

II. The discussion preceding the German transplantation law 

Before and during the passage of this law, i.e. before November 1997, an extensive and heated debate on transplantation took place in Germany discussion . Discussions centred on two issues. Firstly, the significance of consent on the part of the organ donor and the requirements to be met in order to secure this consent. Secondly, the question of whether a brain dead person is really dead or not.

In the course of both scientific and public discussions on the two topics, it has become clear - despite the exhaustiveness of the arguments put forward - how desirable it is that such basic questions should not be dealt with under the political pressure of the various interests of group. This experience will allow me to make two comments on the ethical and legal discussions on the borderline questions of medicine:

1. Under the conditions of the prevailing "value pluralism" (which is in reality a pluralism of views on value), the so-called ethical speech - this also applies to decision-making in institutionalised ethical commissions - necessarily turns into a legal, if not political, discussion. The participants have to agree with each other on agreement as soon as different versions of what is true or false, good or bad, permissible or impermissible appear and are recognised as equally valid throughout speech. This means that the ethical reflection of each of the participants precedes speech. In any case, it either takes place separately or not at all. The aim of the discussion is then the search for common ground according to the typical ideal, by consensus. In reality, the search for a majority is sufficient, as in politics3 .

2. The ethical speech converted into a legal discussion tends, especially if it is conducted under the pressure of interests, to pragmatic rational argumentation. This, in the case of medical-ethical questions, takes place on two levels: the empirical-medical and the legal.

For example, in the medical field, the internship of in vitro fertilisation has been imposed, motivated by the interest in obtaining test-tube children and by the even greater interest in research on early embryos. And all this despite the existing reasons to protect them. Similarly, the identification of brain death with human death would probably not have been legally established without the strong medical interest in organ transplantation.

In the legal sphere, the 56th Assembly of German Lawyers in 1986 dealt with topic Artificial insemination. With a view to embryo protection, it was decided against the production of more embryos by in vitro fertilisation than are transferred into the mother's uterus - either from the mother or from another woman. What would happen if there were still embryos left over? The lecture invented the term orphan embryos. These, the conclusion states, "must be abandoned to their fate"4. The expression "orphan embryos" allowed a divergent rules and regulations , inspired by a legal-pragmatic reasoning.

Another example. This is not to prejudge the question of whether the brain-dead person is dead or still alive. The thesis that he or she is dead offers a simple legal solution for the transplantation permit. However, the mere conclusion that brain death is a reliable criterion for the removal of organs would give rise to speculation about the undermining of the prohibition of killing. Some authors feared that, with the donor's permission, organ harvesting could be interpreted as a kind of requested death or at least close to it. For this reason they accepted the thesis of brain death = death. This is a pragmatic rational legal argument for an ontological determination, in the classical sense.

In Germany, the vast majority of people, including the medical profession, defended the thesis brain-death = death. They referred to a medical-empirical fact. This is not a new definition of death, but, once again, only a certain indication of death, after cardiac arrest has ceased to fulfil this function. The opponents, a minority, argued that the brain dead are still alive. And they concluded that removal should not be allowed. This made the discussion tense, and some of the media on speech stirred up the fire with reports on certain cases of failed diagnosis of brain death. (While respecting the "guidelines for establishing brain death"5 of the Federal Medical Chamber and their follow-up by experienced neurologists or neurological surgeons, failed diagnoses are nowadays practically excluded). A minority within the minority rejected the thesis braindeath=death, but considered transplantation to be legitimate at the same time. The legislator naturally followed the majority. It insisted, however, that the law must make it clear that the removal of organs from the brain dead is a post mortem organ donation. Here the legislator ran into the difficulty that legally defining what death is and when exactly it takes place was beyond his scope skill.

This dilemma has left its mark on the law. According to article 3 section 1, removal is permitted "if death has been established according to the criteria of the current state of medical science" (no accredited specialization for brain death). According to article 3 section 2, removal is not allowed "if the definitive and irreversible cessation of brain functions has not been ascertained prior to removal" (brain death is mentioned, but only as a criterion for removal). Both paragraphs leave no doubt that brain death is seen as the death of man. Even the law requires the death of the whole brain, and vetoes partial brain death as a criterion for removal.

With regard to donor consent, there were three alternatives to be discussed, which try to reconcile ethical respect for the donor's will with the growing social interest in the supply of organs. In the first of these, the "no refusal" proposal , organ harvesting would be allowed as long as the donor and his next of kin did not object. Secondly, the so-called "proposal of information", advocates the collection of information from the next of kin about the intention to harvest organs - as long as the donor has not taken any position - but they would not be questioned about it. If there was no refusal, the organs could be harvested. Finally, the proposal "of consent" required an express intention to consent. The followers of a proposal of consent in the strict sense demanded documented consent of the organ donor. For the proposal of consent in the broad sense, presumed consent would be sufficient in the absence of the donor's express wish. The decision would be left to the next of kin (or to one of the persons assigned by the donor to make the decision). This law has embraced the proposal of consent in an extensive sense.

III. Brain death: knowledge or convention? 

In the discussion discussion of the donor's wishes, one might have the impression - as in many current debates in medical ethics in which patient autonomy is emphasised - that the only ethical commandment to be taken into account is respect for the patient's own decision. However, while even the physician's appropriate action cannot be imposed against the patient's will, neither can the physician make his or her action dependent on the patient's wishes. The patient can demand that something be left undone, but not that it be done in a particular way. The physician is also an ethical subject. The patient's will is important to him, but as a subordinate written request ; financial aid in the decision final between various alternatives, which in themselves are ethically permissible. The patient's will cannot justify an ethically reprehensible action. This applies both in the case of death on request and when one does not agree to amputate the healthy leg of a beggar who wishes to do so because he expects to earn a high income. Even in the central issue of transplantation medicine, which remains the question of the state of brain death, the donor's wishes are no substitute for objective ethical justification.

In the German discussion on brain death many philosophers and theologians were of the opinion that it was up to the doctors to say when death begins. They were not alone in this, since Pope Pius XII6 had already expressed the same view. In order to establish the exact moment of death - from the religious point of view of the exact moment of separation of soul and body - Pius XII even drew attention to the inaccuracy of concepts such as "separation" and "body". The soul is not a visible substance and its separation from the body as such cannot be observed. It is a question of determining when the effect of the soul ends, i.e. when it ceases to transmit life to the body, to the organism, as a unitary whole - we must interpret it in a complete way. This is how the Catholic Church has expressed itself up to now. However, when Pius XII rejected the ecclesiastical skill to establish the exact moment of death and indicated that this was a matter for medicine, he should have demanded that this should be established by medico-empirical scientific means and that Philosophy should not be forced.

It is widely recognised in the world of medicine that the brain dead are no longer alive. They are corpses. Brain death is considered the death of man.

Three questions then arise:

1. Does this validity rest on knowledge?

2. If so, does this knowledge rest on empirical-natural scientific knowledge?

3. Is this validity based on a normative agreement ?

If the equation brain death = death is the result of a agreement, aimed at providing a plausible assumption as a general basis for action on an undefined question, I understand it and want to leave it as it is. The third question does not therefore need to be addressed.

There is a short answer to the second question, to which further reflections can be added. The short answer: a brain-dead person with artificial respiration remains warm, sweats, sample still has reflexes; a corpse becomes cold, stiff, changes colour, gives off rotting odours. By appealing to experience, two different empirical states (or processes) cannot be regarded as identical.

The decision of the ad hoc Harvard committee in 1968 to set7 brain death as a criterion of death was, on the one hand, for one reason internship: to legitimise organ harvesting in the case of brain death; on the other hand, for an objective reason: cardiac arrest was no longer a clear indication of death as a consequence of resuscitation by cardiac massage, and even more so with heart transplantation. With the employment of the heart-lung machine, which replaced the heart and lungs, the heart was no longer, strictly speaking, an organ necessary for life. The person who receives the organ in a heart transplant lives without it for a while. The experience that cardiac arrest was irremediably followed by the infallible signs of death: interruption of the speech, immobility, chilling, stiffness, demudation, putrid smell was the reason why this was considered a reliable sign of death. It was known, however, that the brain reacts very sensitively to a failure of blood circulation by interrupting brain functions. Within 10 minutes, the brain is completely destroyed. The failure of brain functions leads to paralysis of respiration, which means that the heart is not supplied with oxygen, resulting in cardiac arrest and the other familiar signs of death. In view of this interdependence of heart and brain, it was logical to see the irreversible failure of brain functions, or rather the destruction of the whole brain, as the unquestionable and decisive sign of death. So far we have moved into the realm of medical experience.

If the failure of the brain functions occurs in a patient who is connected to a ventilator - only in this case we speak of brain death in the strict sense - then neither heart failure nor the well-known signs of death follow. The respirator acts (if this is the case with the support of other measures) as a prosthesis, which replaces an important function. Just as a prosthesis replaces any bodily function, as in the case of a pacemaker the regulation of the heart, the respirator takes over the control of breathing. The heart continues to beat, the blood circulation of the brain dead continues to function. But it is - according to the concept of brain death - a corpse.

Brain death was declared an irreversible sign of death, because - according to the original reasoning - it is followed by cardiac arrest. In other words, because, according to medical knowledge, it is impossible to live without a functioning brain. This medical impossibility is confronted with the fact that, with artificial respiration in the intensive care unit, the heart and blood circulation continue to function. From a medical point of view, it is often argued that the brain is still dead, but that the function of the blood circulation is maintained from the outside in a purely mechanical and technical way.

This argument is interesting because it is never used if someone lives only thanks to a pacemaker that guarantees the functioning of the blood circulation from the outside and technically. However, this does not correspond to reality either. Although the respirator is a prerequisite for the continuation of physiological functions in the brain dead, it is not sufficient, because it is not only a more or less mechanical function of the circulation. In the brain-dead organism, metabolism and homeostasis remain unchanged, processes of energy expenditure take place, nutrition is used, and even pregnancy can continue. These are not the natural functions of an air pump, an infusion of food and, for example, any additional means of stabilising the circulation.

IV.Philosophy or experience? 

Much more weight is given to the argument of those who defend the thesis of brain death = death, arguing that a person is dead when the organism in its entire integrative functioning ceases to exist. This is the case in brain death, since the brain integrates the bodily functions into a unitary whole. The short formula is: no brain, no integration of the organism. However, this argument cannot be disputed without recourse to philosophical reasoning. One might think that the question "What is life?" is a biological question. Although some, such as the Viennese internist and cardiologist Johannes Bonnelli, are convinced that the conclusion that brain death is the death of man is reached exclusively by means of empirical data , the preceding reasoning first confronts the reader with five criteria of high philosophical argumentation about life. as criteria of life in general he names immanence (self-origination) and self-dynamics (self-movement); as criteria of a concrete living being in its final totality he mentions self-unity (indivisibility), self-completeness (self-forming) and self-identity (continuity)8.

Like many other physicians, Bonelli interprets the "signs of life" remaining in the brain dead as an expression of the vital functions remaining in the various organs. In view of the vital functions of several organs at the same time (the continuation of a pregnancy) he created the term "organic biotope". Empirical knowledge or interpretation in the sense of a conviction, which already existed from the beginning? This is obviously asking too much of experience.

But can the philosophical endeavour answer our first question if the equation brain death = death is the object of knowledge? Another line of argument philosophically surpasses Bonelli's and competes with it: it is in any case about the "death of the person", since man is definitely no longer capable of fulfilling certain typically human functions, according to the "theory of spirituality". Even if the brain-dead person is to some extent still biologically alive, the person is dead. What is problematic about this theory is that in the death of man it distinguishes between a death of the person and a biological death. And even more problematic is that it divides human existence into an existence staff and a biological one. This argument relates personhood to certain performances of consciousness or to certain brain functions, whatever they may be, which he declares to be determinants of personhood9. But these functions do not cease once the whole brain is destroyed, but only when the cortex is destroyed or damaged and the patient continues to breathe even spontaneously. The "theory of spirituality" tempts us to consider the patient as already dead ("partial brain death")10.

The "theory of spirituality" and the "theory of integration" have in common only that they both place man's "I" in the brain. The rest of the body becomes a mere added organ. The "theory of spirituality" is philosophically unacceptable, because it attaches the ontological explanation of a medical phenomenon to a concept of personhood that retreats into experience. It introduces a division between man and person. "Person is man himself, not a certain state of man", writes Robert Spaemann. Living men "who are manifestly incapable of giving any outward sign of life, are by no means another subject of beings. We can only describe them as defective, diseased"11.

Before going in depth into the "theory of integration", it is advisable to digress a little on the meaning of concepts. The meaning of an expression - this has been alluded to by Mary Geach and Luke Gormally12 - is not demonstrable, but results from how the concept is treated. Thus, from the equation brain death = death, a not inconsiderable language problem immediately follows, behind which lies a problem of understanding.

The fact that doctors have always been called upon to establish death does not mean that they know more about death than others. In any case, they were able to establish death earlier and more free from error. What they have always realised was that they could no longer recognise certain signs of life. This realisation was quickly imposed. And it was said: he or she is dead, dead, or else: he or she is dead. The confirmation of brain death is complicated precisely because there are signs of life, because the brain dead person is not dead for the naïve spectator. If brain death is a sign of death, the realisation that someone is dead is beyond human understanding and experience. This is reflected in language. It is not only common sense that rebels against "a corpse with a heartbeat". Anyone sitting at his wife's bedside feeling her pulse would have to master himself a great deal if he were told that she was dead. And speech is mute if one has to enumerate what really happens when the respirator is switched off: if she is already dead, she cannot "really die" either.

The concept of brain death forces us to transfer the skill of such an elementary human experience as meeting with a dead person to a scientific written request . This alienation raises the problem of the different horizons of understanding of the human world that can be generally experienced and of the scientific knowledge . It is true, however, that scientific understanding has an indispensable basis in general human experience. Günter Pöltner has shown this convincingly13.

Günter Pöltner writes in another article (which interestingly supports the concept of brain death) that it is not an organism, but this or that particular person who lives or dies in each case. Science is rightly concerned only with the human body as a living organism. This is a conscious reduction, which should also remain, because life is not a property of the organism, nor is it a characteristic of man, but its form of existence. But the human body is the essential medium of human existence. That is why man ceases to exist with the loss of the integrating unity of his body14 15.

To express the unity and wholeness of a living being, the ancient Philosophy introduced, as is well known, the term "soul". The soul, not a composite, but a unitary reality, was the principle of life. Already with Plato, death consisted in the separation of soul and body16. The latter disintegrated immediately because it was made up of parts. For Plato man was his soul. The body was irrelevant17, inferior, the prison of the soul18, its instrument19. The idea that the body, even independently of the soul, could exist biologically could possibly be reconcilable with Plato's ideas.

However, with Aristotle and Thomas Aquinas it is not possible to recognise the body as having an existence of its own. The soul is the form of the body and the life principle of any animate being20. If the soul is separated from the body, man no longer exists, the body is a corpse that decays. The soul subsists, but it is no longer the whole person, which is man (and - as Thomas continues to think theologically - it will be again with the body of the new creation)21.

To sum up what the philosophers say: dead is he who is not in a position to preserve the unity of his living body22. And life is, in short, automatio, movement from oneself23. Which once again demands the total integrity of an organism.

So is the maintenance in the brain dead of circulation, metabolism, homeostasis, a static state or a dynamic process, movement? Yes, it is movement, it is motio, but not automotio, say those who consider this movement as something "artificially" moved from outside. But in the case of successful pregnancies it is not possible to speak with certainty. Aristotle calls entelechy the inner dynamism of the life principle of each of the living species we observe24. calls the first entelechy of an organic body the soul25.

Thomas translates this as "anima est primus actus corporis physici organici". Just as actus and potentia are complementary opposites in Thomas, so are energeia (often synonymous with entelechy) and dynamis in Aristotle. Entelechy is not to be confused with potentiality. The latter is open to different possibilities development. En-tel-echeia has, as the word itself indicates, the end in itself. The end (telos), the term (in the sense of perfection) is the very motor of life. In the motor of entelechial life (soul) the factual future life that strives to become reality is anticipated.

Aristotle has already posed the terms of the question without giving any satisfactory answer for our medical purposes. Once brain death has reached its telos, its end, does the life principle, the motor, die out, or do the signs of life of the brain dead show that there is still energeia? Perhaps Aristotle sheds some light on why it is precisely doctors find it so difficult to clearly separate empirical knowledge from philosophical explanations. The physician moves between two worlds, that of the efficient cause and that of the final cause. On the one hand he has to work scientifically and on the other to cure. In science there is no final cause. Everything has to be led to the effective cause. But healing is in itself an entelechial concept: determined by the goal, dominated by the prognosis. In the brain dead there is no prognosis. This has so far only been the case in death.

The philosopher Pöltner and the physician Bonelli agree that man ceases to exist when he loses his integral unity. One can only speak of life in the proper sense at reference letter for an individual human being. Only the vital functions of individual organs or a group of interrelated organs can be referred to as "life" in the same sense. The same applies to the brain dead, which Bonelli therefore calls the "biotope of the organ".

And so both follow the "integration theory" which goes much further and seeks to bridge link with the empirical data . They explain that the process of disintegration of the organism begins with brain death. Even if this process is delayed or artificially slowed down externally and artificially, death occurs with brain death. The maxim, the validity of which remains to be proven, is assumed: "no brain, no integration".

V. Brain death between life and death - a tertium comparationis? 

Empirical facts show, on the one hand, that with the destruction of the brain numerous control functions in the organism disappear, and that, on the other hand, considerable physiological functions still remain. Is it possible to draw a line between a "still" integrated - albeit severely damaged - organic unit and a "mere" collection of disintegrated organs? The answer to this question depends on a purely quantitative decision: at what point of integration or coordination is it possible to speak of life, or at what level of integration or coordination is it preferable to speak of death? In that case it can only be decided by convention.

But let us assume for once that with the loss of the integrative functions of the brain begins the disintegration of the dependent organism. This patient is therefore dead. Then comes a patient with a haemorrhage or a tumour, which has destroyed a large part of the brain stem, without the whole brain being directly affected. The main functions are still present, perhaps even consciousness and sense perception26. Breathing is paralysed. Likewise the other control functions of the brain, on which the rest of the body depends, have stopped - as in the case of total brain function arrest27 . Therefore, the process of disintegration should have begun - according to the theory of integration - and the remaining organ functions would only be signs of life in an analogous sense. But this patient is undoubtedly alive. Even according to the concept of brain death, since this requires the irreversible cessation of all brain function. The maxim "no brain, no integration" does not necessarily hold true. It therefore fails us.

It is not possible to establish a bridge between the empirical grasp of organs or organ systems that are still functioning and the idea of a sufficiently integrative totality of the body, as is said of a living person. The body of a healthy person can also be interpreted by the empirical data only as an ensemble of well-functioning and technically available organs.

To the question of the state of the brain dead there is no clear answer in the sense of the traditional alternatives: either living or dead. This is a totally new phenomenon - outside of any human experience so far known at attention with the living and the dead - since brain death is only visible under artificial respiration. It is therefore beyond any linguistic designation that reflects our human experience. The human language is characterised by the dichotomy between life and death. Is brain death a tertium comparationis?

In modern science, elements of indeterminacy are surprising, but they have ceased to be something extraordinary since Gödel's theorem in mathematics and the indefinite relation in physics. But neither Gödel's unsolvable problems in mathematics nor the indefinite relation in quantum physics entail the need for definite action. In the case of brain death it is different. And yet - or precisely because of this - it would be desirable to reduce the lack of definition of brain death to a special scientific problem.

Understanding brain death as a third biological state next to (and intermediate to) life and death is at least the most honourable way - as opposed to those who claim to know that the brain dead are still alive or dead. The special state contains no ontological claim, except in a fictitious sense. It is a theory of delimitation required by knowledge. Its reason lies in the uselessness of the available concepts to do justice to the state of things. But the special state is not something fixed for purely pragmatic-rational reasons, in order to legalise a specific action - e.g. organ transplants - or to legitimise ethically (agreement normative). What is certain is that the brain dead have passed the "point of no return" in a unique and objective way. With financial aid of attendance medical, so to speak (on a useless language ), he has survived his natural death.

The physician must accept natural death. The diagnosis of brain death requires that life-extending measures have been taken employee . To act otherwise would require justification. Is brain death a state in which this condition is fulfilled? The special state of theoretical knowledge - thus my thesis - fulfils this condition under which organ donation is valid as a last legitimate act of submission to a gravely ill person who can be cured.

VI. Ethical Implications for Transplantation Medicine 

For the ethical evaluation of organ harvesting in the brain dead there are three fundamental positions according to the interpretation of the ontological state of the brain dead.

1. It is certainly a live specimen, removal is not permitted.

2. It is certainly dead, extraction is permitted.

3. There is no certainty that he is alive or dead, extraction seems - according to ethical principles of guardianship - rather not allowed28.

With regard to 1): Life-prolonging measures with no prospect of improving the condition of a sick person close to death are not morally justifiable. But neither is the prolongation of life in itself an evil action. Objectively speaking, the brain dead cannot be regarded as a means to another's end. This is not the case when it is properly cared for. But in order to qualify an action as moral, it is not enough that the action itself is good, but also the end that motivates it. Saving the child of a brain-dead pregnant woman fulfils this condition, but the removal of an organ to cure another only fulfils this condition if the removal itself is ethically permissible. If this is not the case, neither the prolongation of life nor the perfusion is permitted. Naturally, the donor's acceptance (or, if applicable, the presumed acceptance) must also be stated here.

With regard to 3): It is uncertain whether the brain dead person is alive or dead and whether the doctor in removing the organ kills him. For the ethical consideration of the guardian the removal is not permitted, unless the patient does not die as a result of the removal, but as a consequence of the termination of life-sustaining measures. This may be difficult to distinguish, since one of the premises of transplantation medicine is that a person can live for some time without the organ to be transplanted. Whoever is to receive another heart, a lung or a liver lives for a while without this organ. The technique used for this can also be applied to the donor in case of doubt, in order to be sure that he or she will survive the explant. This technique can be discontinued immediately according to indications. The two possible causes of death are so close that one cannot be distinguished from the other. It makes no sense to say that the brain dead are killed. Also in the sense that, if the brain dead person is still alive, the treatment does not shorten his life, but prolongs it. (The treatment includes the prolongation of life and the explant as a connection of actions in the sense of a unit of action of ethical description).

The new phenomenon introduced by medical technology, that the brain-dead person is in a status beyond his natural death, is obviously the reason for the conceptual failure. Ethical reflection has to free itself here from concepts that are useless in relation to its object. But neither can it offer analogies in cases where such concepts are valid, e.g. in the ethical evaluation of the requested death. The recognition of brain death as a third biological state between life and death is in favour of these requirements. The ethical consequences are reduced to attention with the brain dead. And they make it possible to pass on this limitation to the law.

Transplantation is not the only interest in brain death. Assuming a future improvement of the technique, one can imagine a brain-dead person as an exercise object for surgical students. Or brain-dead, artificially breathed warehouses as organ or hormone production banks, or women as "birthing machines" for strange children. Already in 1968 Hans Jonas described scenes of this subject29.

With regard to 2): Legally equating brain death with death presupposes a distinction. Incidentally, the legal permission of organ transplantation in brain-dead people leads to the same practical-legal position of brain death and death. Laws can more easily limit an equalisation of positions to a function and make their permission conditional on it.

From the special epistemological status follows an ethics of the brain-dead attention , in which an ethics of transplantation protected from false interpretations is possible:

1. In contrast to the thesis of brain death = death, this ethics demands or sample more clearly:

- safety in the face of the relativism of brain death (partial brain death)

- protection against abuse of brain dead (as already described)

- responsibility to care and diagnose

- the relevance of the donor's willingness to be removed

- the character of organ donation as a final act of submission

2. Against the interpretation that the brain dead are still alive, he stresses:

- the ethical approval of organ donation and harvesting

- the act of submission (instead of letting a brain-dead person die who refuses the healing of an organ recipient).

3. It is appropriate in the face of the status doubt as to whether the brain-dead person is dead or still alive:

- overcoming the public's mistrust of transplantation medicine (contradiction by appearances, distancing from language, making death scientific, suspicion of real interests).

- encouraging willingness to donate organs.

It is precisely the perception of a "living" family member and hearing that he or she is dead that causes people's mistrust. However, if it is explained that nothing more can be done, that the brain is completely destroyed, that the brain dead person will never breathe again on his or her own, that everything will end up with the ventilator being switched off and that continuing with the ventilator only makes sense if the possibility of helping a seriously ill person with an organ donation remains open, then perhaps people will react generously to the appeal to generosity.

Notes

(1) Ministry of Health of the Federal Republic of Germany, The Transplantation Law, information brochure December 1997, 30.

(2) With the ban on organ trade, the law excludes a commercial solution of organ distribution. Nor is a solution by lottery or through clubs possible (the people willing to donate are also the first beneficiaries and organise themselves accordingly). The transplant centres keep waiting lists, within which medical criteria must be taken into account: a) necessity, b) prospect of success, c) urgency of transplantation. Accordingly, the weight of the individual criteria (scoring) is under discussion. discussion The following criteria are also considered by non-specialists: the social value of the patient (social value), the penalty for possible culpability of the disease, such as cirrhosis of the liver of an alcoholic (as opposed to the medical criterion of the prospect of success, which would include the prospect of ending alcoholism), and the allocation according to a pure cost/benefit calculation (QALY).

(3) On this subject in more detail: H.Thomas, Ethik und Pruralismus finden keien Reim. Die Ethikdiskussion um Reprodukyionsmedizin, Embryonenforschung und Gentherapie, in 'Scheidewege - Jahresschriftfür skeptisches Denken', 1990-91, 20, 121-140, esp. 129 ff.

(4) President of the Federal Medical Chamber, Weißbuch Anfang und Ende des menschlichen Lebens - medizinischer Fortschritt und ärztliche Ethik, Köln 1988, 119.

(5) Deutsches Ärzteblatt, 1998, C 1381-1388.

(6) Pius XII, Risposte ad importanti quesiti sulla "reanimazione", 24.11.1957, in "Discorsi e radiomessagi die S.S. Pio XII", 19, 612-621.

(7) HK. Beecher, A definition of Irreversible Coma. Report of the Ad hoc Committee of the Harvard Medical School to examine the Definition of Brain Death, in "JAMA", 1968, 205, 337-340.

(8) J. Bonelli, Leben- Sterben - Tod, in J. Bonelli (ed.), Der Status des Hirntoten. Eine interdisziplinäre Analyse der Grenzen des Lebens, Wien -New York, 1995, 83-112.

(9) Also decisive: P. Singer, Praktische Ethik, Stuttgart, 1984; also H.M. SASS, Hirntod und Hirnleben, in H.M. Sass (ed.), Medizin und Ethik, Stuttgart, 1989, 160-181.

(10) On cortical death see, among others, F. K. Beller, J. Reeve , Brain Life and Brain Death - The Anencephalic as an Explanatory Example. A Contribution to Transplantation, in "J. Med. Philos", 1989, 14, 5-23; R.J. Devettere, Neocortical Death and Human Death, in "Law Med. Health Care", 1990, 18, 96-104; K.G. Gervais, Redefining Death, New Haven, 1987; G.R Gillet, Conscionsness, the Brain, and What Matters, in "Bioethics" 1990, 4, 181-198.

(11) R. Spaemann, Person ist der Mensch selbst, nicht ein bestimmter Zustand des Menschen, in H. Thomas (ed.), Menschlichkeit der Medizin, Herford 1993, 261-276, esp. 272.

(12) Cf. W. A. Müller, Tötung auf Verlangen - Wohltat oder Untat?, Stuttgart, 1997, 85.

(13) Cf. G. Pöltner, Menschliche Erfahrung und Wissenschaft, in H. Thomas (ed.), Naturherrschaft, Herford, 1991, 237-252.

(14) G. Pöltner, Die theoretische Grundlage der Hirntodthese, in J. Bonelli (ed.), Der Status des Hirntoten, Wien-New York, 1995, 125-146.

(15) Life would be analysed in the present analytic Ontology as a conjunctive state of affairs, composed of several simple characteristics, which are exemplified by an individual. If the characteristics of life are denoted by the letters K, L and M, then it is a general state of affairs, which an individual x just lives when it exemplifies the characteristics K, L and M. In the formal form of expression: for all X: X lives= K (X) & L(X). From which it follows analytically, for example, that an individual who lacks only one of the three characteristics does not live. On the new analytic Ontology, cf. R. Grossmann, The Existence of the World, Routledge, London/ New York, 1992; M. J. Loux, Metaphysics, Routledge, London/ New York, 1998; E. Rungaldier, C. Kanzian, Grundprobleme der Analytischen Ontologie, UTB (Schöningh), Paderborn, München, Wien, Zürich, 1998. The question is whether biology can name these features, which sufficiently characterise its object, as it is possible for Chemistry with its 106 simple elements and for physics with Structures simple basic elements in the subatomic field. The criteria of life named by Bonelli will possibly not fulfil the condition of a derived simplicity.

(16) Cratilius, 399 d-e.

(17) Phaedo, 66 b - 67 b

(18) Cratilo, 400 c

(19) Plato's image of the chariot and its driver (Phaedo, 246 ff) returns transformed into the body-spirit dualism of a Descartes, into the modern image of spirit, into a machine or also into John Eccles' interactive brain-mind model . Applied to the problem of brain death, see H.T. Engelhardt, The Foundations of Bioethics, Oxford University Press, 1986.

(20) Aristotle, De anima, 412a27 f.; Thomas Aquinas, De anima a2 ad2; also Summa Theol., I, q 76, aa. 3-4.

(21) Thomas Aquinas, Summa contra Gentiles, V, 81; Summa theol. Suppl., q. 79, aa. 2-3.

(22) Cf. H. Jonas, Technik, Medizin und Ethik. Zur Praxis des Prinzips Verantwortung, Frankfurt/Main (1st ed., 1968), esp. Gehirntodund menschliche Organbank. Zur praktischen Umdefinierung des Todes, 129-241. The same author, Against the Stream: Comments on the Definition and Redefinition of Death, in Philosophical Essays: From Ancient Creed to Technological Man, Englewood, New Jersey, 1974, 132-140. Cf. also C. Pallis, Wohle-Brain Death reconsidered. Physological Facts and Philosophy, in Journal of Medical Ethics, 1983, 9, 32-37.

(23) Plato, Phaedo, 245e; Aristotle, Physics, 201a 11; Thomas Aquinas, Summa Theol. I, q 18, aa. 1-2.

(24) De partibus animalium, 614a 17-510 and 645b14 FF.

(25) De anima, 412 a27f.

(26) Some isolated cases in which consciousness can be stimulated through electrical stimuli are mentioned by D. A. Shewmon, The Metaphysics of Brain Death, Persistent Vegetative State, and Dementia, in "The Thomist", 1985, 49, 49-80, esp. A. Shewmon, The Metaphysics of Brain Death, Persistent Vegetative State, and Dementia, in "The Thomist", 1985, 49, 24-80, esp. 50. D. A. Shewmon, who in 1985 radically represented the concept of brain death and believed he had found support in Thomas Aquinas, later took the opposite position.

(27) On brain stem death see, among others, D. Lamb, Death, Brain and Ethics, Albany, New York, 1985, 49 ff; D.H. Ingvar, S. E. Bergentz, Definition of Death and Organ Transplantation - Experiences from Sweden, in R.J. White, H. Angstwurm, I. Carrasco de Paula (eds.), Working Group on the Determination of Brain Death and its Relationship to Human Death, Città del Vaticano, 1992, 63-72.

(28) Considered according to the theological-catholic pastoral: The imparting of the sacraments is, depending on the case: 1) Unlimited; 2) Absolutely impossible; 3) Sub conditione. It would correspond in this sense to the third position.

(29) See grade 22.