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As the discussion regarding the subject about the beginning of life has recently jumped in our country, in connection with the disputed passing of the artificial reproduction law (law nº40, 2004); On a subject concerning the end of life, and that is particularly the matter of the removal of organs from “corpses”, the debate seems to be finished immediately after the passing of the new law on transplantations (law nº 91, 1999).
This law has been passed by the majority in Parliament. However the debate on this law has been mainly held on an issue – on the other hand, a long term one – and that is the norm introduced for the declaration of will, known as “informed silent-assent.” (see sec. nº 4).
In my opinion, a quite questionable norm, even though it was much more questionable, how the then Health Secretary Rosy Bindi got round the law, by sending the Italian citizens a card (donor card). This card wasn’t not only provided for by the law in any way, but actually it obstructed its application at the crucial point.
In fact today it’s five years since the law was in effect and we are still in a transient phase (governed by sec. nº 23), that we can just go on defining so in euphemisms. But now I don’t want to dwell long on this point.(1)
Here I would like to raise another doubt and this doesn’t concern so much with the law about transplantations itself as with the assumption it is based on; and that is to say whether the donor is already a “corpse”, when the organs are about to be removed. Are we really sure of it?(2) I will begin from an obvious remark that appears immediately clear by the comparison between the two laws I have just mentioned.
We thought it proper to defend with a series of prohibitions a pin-sized being contained in vitro (e.g. by prohibiting its freezing or its killing or even by forbidding the preimplant antenatal diagnosis), on the contrary, with a human being in the flesh, whose temperature is about 37º C, with a rosy complexion and a not voluntary heart beat and breathing but kept alive by mechanical ventilators, we can do everything is permitted to do with a corpse.
You might observe: the matter is only apparently perplexing. Since their earliest formation, however, the embryos are already alive (and this explains why they draw great attention), on the contrary, once brain death has been established, the patient isn’t any longer alive, but dead: a corpse that looks like still alive, but it actually lives no more. This conclusion is introduced as a scientific datum, which was acquired once and for all at the end of the Sixties, when a Committee, founded at Harvard medical school in order to discuss the problem, managed to compare in a famous report to all intents and purposes the irreversible coma diagnosis (made with accurate clinical tests, that had to determine the permanent loss of brain functions) to brain death and this to the actual death.(3)
A new definition of death derived and in the succeeding years it was very successful. And this happened for various reasons. First of all, this definition reflected the then scientific knowledge, that seemed to prove the theory that the patients in a irreversible coma were destined to die of a cardiac arrest in a short time, anyway; secondly such a definition gave the best help to the development of the technics of transplanting, that have just begun at that time (we have to remember that the first heart transplant was done by Barnard in December 1967); thirdly it could have the problem of euthanasia got around: if the patient, whose brain had completely stopped working, was dead, removing its heart or breaking off the artificial breathing didn’t correspond to kill him.
As you can see, right from the start, not only scientific reasons urged to redefine death. Even if you examine the laws, the connection between the new definition of death and transplantations is very evident. We restrict ourselves to our country, but the matter, at least to a certain extent, could be generalized to other juridical experiences. Back in 1969 the criterion of brain death was introduced with the Health Secretary’s decree law of the 11th August, and with the following one of the 9th January 1970.
This criterion was introduced (using the Harvard standards for all practical purposes) exactly with a direct reference to the problem of the removal of organs for transplantations. And it is remarkable that, in a very short time, on the 5th February 1970, one of the President of the Republic’s decree laws (the nº 78 one), introduced by the Health Secretary, authorized for the first time in Italy the removal of heart and of its parts.(4) Since then the law-maker confined himself to indicate the various methods for the confirmation of death and he didn’t even dare define it in the first methodical law regarding transplantations (law nº 644, 1975). This happened in 1993 only with the law nº 578 (and with next year’s related execute ministerial decree (5). According to this law death "corresponds to the irreversible cessation of every brain function" (sec.1)
This law introduces not only the definition of total brain death, but also – changing route with respect to one of 1975 – extends the use of the norms for the determination of death from the persons suffering from brain injuries and who are subjected to resuscitative measures to all those who are in that condition, regardless of they are donor or not. Even though this law is formally separated from the transplantation problem, since this law was brought in, it has changed the conditions for the removal of organs. And the latest transplant law, that has been in effect since 1999, only accepts it completely from this viewpoint. The transplant law (6) has indeed changed the methods to get the consent, it has made it easier (and this is already partly true in the present transient phase), but this law has kept the definition of death and the standard methods for its determination unchanged, as so they had been established in 1993/94, and therefore they are now the assumption for the removal of organs legitimacy .
2. The moral-philosophical debate on brain death.
Even just during the Nineties, while in our country – like in many others – brain death was not only accepted, but its definition was even introduced by a law; in the country where this definition was firstly given, The United States of America, a strong reconsideration of it started developing. Actually strong philosophical doubts about the new definition of death raised immediately. As everybody knows a great twentieth-century philosopher, as well as one of the most important figures in the contemporary bioethical discussion, Hans Jonas, after a month since Harvard report publishing, during a conference about the experiments on human beings raised his strong objection to it. The leitmotiv was the following: we don’t know exactly the borderline between life and death and a definition – inter alia introduced with the clear intention to encourage the removals of organs – can’t replace that cognitive deficit for sure. When brain has completely stopped working we can break off the artificial life-support treatments (on the contrary – as Jonas claimed later on – we must do that because keeping a human being in that condition would be opposite to the human being’s dignity), not only because the patient is dead, but also because making his/her life longer in that condition is absurd. In Jonas’ opinion we can already find the dilemma – well emphasized by Jonsen (7)– which derives from the debate on brain death. Should we break off the life-support to let the patient die or should we turn off the respirator connected to a body, which is already dead? As everybody knows the second one has been chosen and as a dead human being’s respirator was turned off, why not, on the contrary, keep it turned on a little to encourage transplantations?
According to Jonas, instead, the first option had to be taken and the criticism on the new definition of death became his strong point. His most famous writing, printed in 1974, is entitled Against the Stream, now it has become a classic.(8) Less known – and that’s why I’d like here also to draw attention to this – is the fact that Jonas, just before his death, came back to this problem again in his correspondence to a German doctor he was friend with. The matter is worth briefly mentioning.
In October 1992 after a car crash a young woman went into a coma of which she would never come out and, after the standard clinical tests, she was declared brain dead. With her parents permission her organs were going to be removed. The arrangements for the removal of organs were stopped and the doctors decided to go forward with the pregnancy, when the doctors realized she was pregnant. The debate on brain death began in Germany and then a lot of people wondered how a “corpse” could go forward with the pregnancy and even – as it happened – how it could “decide” to terminate a pregnancy with a spontaneous abortion when the foetus was no longer alive. I’d like to quote on this subject a passage from Jonas’ interjection, taken from his correspondence with one of the doctors involved in the case:
“Whether you like or not, you, my friend, or better you (the doctors) were contrary to the contemporary declaration of death of her object with your well-considered decision. You have said: with the ventilation (and the other treatments) we want to prevent Marion’s body from becoming a corpse, so that it can go forward with the pregnancy. As you thought it was able to go forward with it, or as you wanted to give it this chance, you relied on the life remaining that was in it - and that was Marion’s life remaining! But the body is just as much Marion’s body, as the brain was Marion’s brain. This time the failure of the experiment (it seems to have already been successful in previous less extreme situations) can’t be taken so much as a confirmation that it is admissible, just as a spontaneous abortion shows that a pregnancy in general isn’t possible. You believed sincerely in the chance of its success, and that is to say you believed in the functional capability of the cerebrally dead body which to that end was necessary and was kept alive by your talent- and that is to say you believed in her LIFE that was temporarily prolonged for the child. You aren’t allowed to dismiss this belief in other coma cases for other purposes. (9)”
You might say: this incident interestingly concerns itself with showing the author’s great coherence. This is undoubtedly true for Jonas’ biography, but meantime his “old” position had become current again and it started to be much more popular than it was before. Not only Jonas’ writings, but also Josef Seifert’s ones (10), and more recently Robert Spaeman’s ones (11), too would be worth considering. Both Joseph Seifert and Robert Spaeman (two authors with a Catholic background) now share similar intellectual ideas to Jonas. All these authors subscribe to the idea that given the uncertainty or impossibility to test that a person is definitively dead, you should treat him/her as if he/she were still alive.
However the most remarkable point – and that’s why I want to dwell on – is that, also in a line of thought which is poles apart from what I referred to, it is now openly recognized that “brain death” was only a “bold trick” human beings was declared dead with, but they weren’t at all.
This is the conclusion a philosopher, Peter Singer, well-known also in our country for his strong utilitarian ideas, came to.
Also on this occasion it’s worth retracing briefly the path he took.(12) At the beginning of the nineties Singer – at that time professor in Melbourne – was called by an important hospital in that town to join a Committee that had to deal with some moral questions connected to the problem of consent; among these also the ones connected to anencephaly. The babies suffering from this severe deformation can’t become completely conscious, as they lack their brain upper part (that is the cerebral hemispheres, cerebral cortex included) and their cranial vault, whose function is to hold it, whereas their “lower” part, which is composed of brainstem, is often undamaged, even though sometimes not very developed. So the anencephalic child can breathe spontaneously, as this activity depends on the brainstem, but the baby’s disease has a gloomy diagnosis: these children survive for changeable time from a few days to few weeks, before dying of a cardio-circulatory arrest.(13)
Singer, who in the previous years had been, in general, “total brain death” promoter, coped then with the following problem: why not pass from that idea of death to the cortical one in order to declare dead the anencephalic subjects, too?
Some Committee members wanted to take that course, but Singer, leaving the others a little dumbfounded, didn’t follow them. The reasons for his disagreement are expressed clearly in one of his books, Rethinking Life and Death, brought out in 1994 and shortly afterwards translated into Italian. At least one paragraph of this book is worth quoting completely: “The resolutions of the Committee I sat on got me to consider brain death more strongly. The Harvard Committee on brain death had to cope with two great problems. A lot of patients in a very despairing condition lived thanks to ventilators and nobody dared turn off the devices that kept them alive. Organs which could have been used to save human lives were unusable because, to remove them, you had to wait for the cessation of the likely donors’ circulation of the blood. The Committee had supposed to solve both problems, resorting to a bold expedient and that was to declare dead all the individuals whose brain stopped, at least partly, working. This redefinition of death had so clearly expected consequences that it met with very few objections and it was almost universally accepted. Nevertheless, it was invalid from the start. The practice to solve the problems turning to redefinitions rarely works, and this incident wasn’t an exception of the rule.(14)
Of course the conclusion that Singer draws from the cerebral “crisis” is very different from the previously quoted philosophers’ one. For these people, if “the brain dead patients” are still alive during the explantation, this means that we just kill them doing it and we must not do any explantation, according to Singer, on the contrary, it is allowed to do it because life isn’t a sacred and inviolable value. Also in this case (like in other ones) there is a third possibility, as usual this is the most difficult one, I tried to describe it on another occasion (15); here I’m interested in underlining another point: that is to say that, despite the different moral conclusions, all the quoted authors have started from the same objection to brain death idea. You could wonder what has got Singer to share Jonas’, Seifert’s and Spaemann’s opinions on this subject. These authors were very distant from him and he didn’t almost seem to have known them at all. We can find an indirect answer by reading his latest contribution to the subject, Morte cerebrale ed etica della sacralità della vita, where the author reveals his sources.(16) And it deals with scientific sources of great importance, that together with others, contributed to define that state, the new idea of death based on completely neurological criteria, not only from the philosophical viewpoint but also from the medical-scientific one, has sunk in.
3. The medical-scientific discussion about brain death.
Although I hadn’t a doctor’s expertise, at least let me stress two crucial points on this subject.(17) The first one concerns with the possibility to check total brain death on the basis of the norms and thetests which are now in use; the second one should prove the theory that brain death is a tale–tell symptom of the near brain death of the whole human body.
The first point was well-considered by two U.S. medical doctors, Robert Truog and James Flacker, in an essay brought out in 1992 and which is entitled: Rethinking brain death. (18) According to these authors, proved scientific researches show that the patients, who respond to the current clinical criteria and neurological tests for the brain death, don’t necessarily lose all brain functions and this would prove that the complete cessation of these wouldn’t be diagnosable on the basis of the standard tests in use.
In order to support their theory, the two doctors raise four different subjects, which can be summarized as follows. First of all, their endocrine-hypothalamic function doesn’t fail those patients, who were declared in brain death according to the tests then in use. That is to say, in some patients declared brain dead the hormonal activity of the hypophysis gland and of the nerve centre that governs this (hypothalamus) is persisting, and therefore, they have still a regular hormonal activity; secondly a weak electrical activity can be registered in a lot of patients in such a condition. This activity is concentrated in some areas of the cerebral cortex, and it’s destined to stop after 24-48 hours. Thirdly some patients unexpectedly go on responding to the external stimuli, as, for example, after the surgical cut before the removal of organs the rise in heart rate and in blood pressure shows; (These observations refer to patients declared brain dead on the basis of only clinical British criteria, which refer to the brainstem condition); fourthly, a lot of declared brain dead patients have still the spinal reflexes, which were very important when the definition of brain death was given and in the immediate succeeding years. And, in my opinion, it’s right to consider them, as spinal marrow and brainstem are joined to each other, and therefore you can’t rule out lower brainstem involvement in spinal marrow activity for sure.
On the basis of a careful analysis of these four elements the two authors came to the conclusion that the current clinical means can’t prove the cessation of each function, but only of some, and actually they can diagnose, at the most, cortical death.
The second point has been illustrated above all by Alan Shewmon, an authoritative American neurologist, who, inter alia, changed his mind during his career, at first he had been a total brain death strong supporter then he was highly critical of it.
Like the two previous authors’ incident, the starting point is also in this case an empirical examination: organisms declared dead using the current neurological standards survive much longer than it could be imagined, and this presumes that brain is not so essential to the human body’s integrated working, as, on the contrary, it was considered. Against the prevailing opinion in the medical field, according to which brain is the organ responsible for the integrative functioning of different body parts, and, as such, it represents the body “critical system”, Shewon formulates his own theory: our body “critical system” isn’t limited to one single organ, even if it’s as important as brain. According to the neurologist this theory could give an explanation for the declared in brain dead individuals’ prolonged existences (a patient, who survived till over 14 years, set up the record). These persons, most of them child patients, keep undamaged some functions that were thought to pertain to brain, such as body temperature control, fluids homeostasis, the reaction to infections, the bodily growth, which are symptoms that an integrative functioning is persisting. Shewon concludes that it’s completely wrong to consider brain death a signal of the near death of the whole human body. One of the pillars brain death is based on, that’s the opinion that brain is “our body central integrator ”, has been completely disputed. Brain death doesn’t cause body disintegration, such a disintegration is rather consequence of damages which involve more organs and the achievement of a critical level, “the point of no return”, that determines death process start and makes ineffective any medical operation aimed at avoiding the exitus. Therefore, according to Shewmon the clinical condition of brain death shouldn’t be diagnosed as unique condition for the determination of death, but you should refer to more than one parameters, such as those which are connected to the respiratory, circulatory and neurological activity. (19) If the point of no return had been clearly exceeded, the patient would have been disconnected from the artificial ventilation devices, and after twenty minutes’ wait – a time which is considered necessary by Shewmon to get sure that the subject vital functions can’t spontaneously recover – you could proceed with the death declaration.
Therefore, Shewmon comes to the same Jonas’ conclusion in a different way. The big question that you can pose here is, whether these norms were respected, transplantations would be still successfully possible. The physical conditions aren’t for sure any longer ideal, and the advantages are more limited, too; but now we have to wonder whether the organs – as the latest medical studies prove – are removed from donors who are in a borderland between death and life, in this case the explantation itself causes them to die. The legislations which admitted brain death are based on the assumption that the patient is already dead when the organs are removed, but if, from the beginning, this assumption could be arguable from the philosophical viewpoint, in the end it turned out to be baseless from the scientific viewpoint, too. If the legal premise for the removal of organs is that they are extracted from persons who definitively lost their brain functions, then it must be recognized that a lot of organs are removed breaking the law openly. Instead of going on operating deceptively, we’d like to discuss openly whether removing organs, in a condition you can’t get over from, but that it doesn’t correspond to death yet(20), is admissible or not. In the end, like in the artificial insemination also in organs transplantation issues, the application of advanced medical technologies raise new, difficult moral doubts about it. The removing organs technical possibility urged us to use patients, whose fate was decided, like spare material for other human beings; similarly the in vitro insemination technical possibility could encourage us (even though in this case the Italian law-maker bucked the trend) to use so-called extra embryos – destroying them – for some diseases treatment. In this case the problem was: “What about the patients, who, although they have been subjected to resuscitation, won’t be able to get over any longer because their brain stopped working?” In the end, we expected to solve it in an oversimplified way, and that’s to declare them dead, even if their human body can continue working well and (for a long time) with the ventilation support, perhaps it might work better than those few in vitro embryonic cells, which have no brain yet, anyway.
(*)Associated Professor in Philosophy of Law, Faculty of Law, University of Genoa, Italy,
Translated from Italian by Lenny Pittaluga.
1 I have already dwelt on it on many other occasions, I confine myself here to mention: P. Becchi, P. Donadoni, Informazione e consenso all’espianto di organi da cadavere, in (Politica del diritto) XXXII, n. 2, 2001, pp. 257-287; P. Becchi, Tra(i)pianti, Spunti critici intorno alla legge in materia di donazione degli organi e alla sua applicazione, in (Ragion pratica),18, 2002, pp. 275-288. e P. Becchi, Information und Einwilligung zur Organspende. Das neue italienische Gesetz und seine “ewige” (Übergansphase in Hirntod und Organspende), edited by A.Bondolfi, U.Kostka, K.Seelmann, Basel, Schwabe, 2003, pp.149-161.
2 For a more exhaustive attempt to answer the raised question, I want to refer to an anthology that I edited in association with Rosangela Barcaro, Questioni mortali. L’attuale dibattito sulla morte cerebrale e il problema dei trapianti, Napoli, E.S.I, 2004,. This anthology includes writings by Carlo Alberto Defanti, John Finnis, Amir Halevy e Baruch Brody, Hans Jonas, Josef Seifert, Alan Shewmon, Peter Singer, Ralf Stoecker, Robert Truog and it reproduces in the appendix the document of the Danish Council of Ethics dedicated to the discussion on death criteria.
3 See A definition of irreversibile coma. Report of the Ad Hoc Committee of the Harvard Medical School to Examine Brain Death, in (Journal of the American Medical Association), 205, 1968, pp. 337-340. For the critical discussion on the document see for instance: M. Giacomini, A Change of Hearth and a Change of Mind? Technology and the Redefinition of Death in 1968, in (Social Science and Medicine), 44, 1997, pp.1465-1482; R.M. Veatch, Transplantation Ethics, Washington D.C., Georgetown University Press, 2000; G. Belkin; Brain Death and the Historical Understanding of Bioethics, in (Journal of the History of Medicine), 58, 2003, pp. 325-361; in Italian see C.A. Defanti, Vivo o morto? La storia della morte nella medicina moderna, Milano, Zadig, 1999, pp.65-75. See P. Mollaret, M. Goulon, Le coma dépassé. Mémoire préliminaire, in (Revue Neurologique), 101, 1959, pp.3-15. The importance of this study has been ignored for a long time because Harvard Committee has put, as to speak, the previous papers in the shade. Nowadays Mollaret and Goulon’s work is recognized as one of the most significant moment in the irreversible coma research. See for example E.F.M.Wijdicks, The Landmark (Le Coma Depassé), in E.F.M.Wijdicks (edited by), Brain Death, Philadelphia, 2001, pp.1-4.
4 All the quoted regulatory documents are quoted in the appendix of the important essay by F. Mantovani, I trapianti e la sperimentazione umana nel diritto italiano e straniero, Padova, Cedam, 1974, pp. 851-853.
5 See, on this subject, also for the regulatory documents attached in the appendix: U.G. Nannini, Valori della persona e definizione legale di morte, Padova, Cedam, 1996.
6 For a comment on the new law here I restrict myself to referring to the miscellaneous book: La disciplina giuridica dei trapianti. Legge 1º aprile 1999 n. 91, edited by P. Stanzione, Milano, Giuffrè, 2000; in the appendix the law text is also quoted. For a critical interpretation see P. Becchi, La morte nell’età della tecnica. Lineamenti di tanatologia etica e giuridica, Genova, Compagnia dei Librai, 2002 e ora P. Sommaggio, Il dono preteso. Il problema del trapianto di organi: legislazione e principi, Padova, Cedam, 2004.
7 See A.R. Jonsen, The Birth of Bioethics, New York, Oxford University Press, 1998, p.240.
8 Jonas’ reaction to the Harvard Committee report has been quick : it goes back indeed to September 1968 and it was put forward by the author during his speech in the lecture about the experiments on human beings. The most famous essay Against the Stream followed it, this writing was printed in 1974 (but composed in 1970). Jonas discusses in it the objections that had been raised by some Committee doctors, meanwhile he came into contact with. Two postscripts of 1976 and of 1985 followed this essay, a symptom of the steady Jonas’ attention paid to this subject. All the writings have been collected by Jonas in Technik, Medizin und Ethik. Zur Praxis des Prinzips Verantwortung (1985). Italian translation, Tecnica, medicina ed etica, Prassi del principio responsabilità, Torino, Einaudi, 1997, pp. 166-184. Now the article is also in the anthology edited by R. Barcaro and P.Becchi, Questioni mortali. L’attuale dibattito sulla morte cerebrale e il problema dei trapianti (in the press). For a first attempt to introduce Hans Jonas’ figure and works in our country see fascicle nº 15 monographic section of (Ragion pratica) of 2000, dedicated to him. See also P.Becchi, Tecnica ed etica in Hans Jonas in (Annali della Facoltà di Giurisprudenza di Genova), XXV, 1993/94, pp. 280-314 and now P.Becchi, Hans Jonas e il ritorno alla metafisica, in (MicroMega), 5, 2003, pp. 82-109.
9 See H. Jonas, Brief an Hans-Bernhard Wuermeling, in Wann ist der Mensch tot? Organverpflanzung und Hirntodkriterium, edited by J. Hoff e J. in der Schmitten, Reinbek bei Hamburg, Rowohlt, 1994, pp. 21-27. The letter text is now translated into Italian in the anthology: Questioni mortali. L’attuale dibattito sulla morte cerebrale e il problema dei trapianti, (already quoted)
10 See J. Seifert, Leib und Seele. Ein Beitrag zur philosophischen Anthropologie, Salzburg, 1973; J. Seifert, Das Leib-Seele Problem und die gegenwärtige philosophische Diskussion. Eine kritisch-systematische Analyse, Darmstadt, 1979, (A second edition of this book was published in 1989); J. Seifert, What is Life ?On the Originality, Irreducibility and Value of Life, edited by H.G. Callaway, Amsterdam, 1997; J. Seifert, Is “brain death” actually death? A critique of redefining man’s death in terms of “brain death”, in R.J. White, H. Angstwurm, I. Carrasco de Paula, (edited by), Working Group on the Determination of Brain Death and its Relationship to Human Death, 10-14/12/1989, the Vatican City, 1992, pp.95-143; J. Seifert, Is “brain death” actually death ?, in (Monist), 76, 1993, pp. 175-202, see now, translated into Italian, J. Seifert, La morte cerebrale non è la morte di fatto. Argomentazioni filosofiche, in R. Barcaro, P. Becchi (edited by), Questioni mortali. L’attuale dibattito sulla morte cerebrale e il problema dei trapianti, Naples, ( in the press).
11 I recommend Spaeman’s clear interjection during an international bioethical conference, which took place in Rome in October 2002. His interjection text is now brought out in Italian and it’s entitled La morte della persona e la morte dell’essere umano, in (Lepanto), n. 162, XXI, December 2002, (Dossier: Ai confini della vita/ At the boundaries of Life)
12 For a more precise study I’m allowed to refer to P. Becchi, Un passo indietro e due avanti. Peter Singer e i trapianti, in (Bioetica), X, 2, 2002, pp. 226-247.
13 For a detailed description see for instance The Medical Task Force on Anencephaly, The infant with anencephaly, in (New England Journal of Medicine), 322, 10, 1990, pp. 669-674. It is however observed that more recent surveys carried out by D.A. Shewmon are inclined to show, in some cases, how the remarkable brain plasticity enables the brainstem to perform some functions, which, otherwise, would be cortical. The doctrine of the neuroanatomical basis of consciousness is questioned. See on this subject D.A. Shewmon, Recovery from “Brain Death”: A Neurologist’s Apologia, in (Linacre Quarterly), February, 1997, pp.30-96. (The Italian reader on the anencephalic problem can read M. Caporale, Al confine tra la vita e la morte, Milan, Vita e Pensiero, 1997, pp.22-23).
14 See P. Singer, Rethinking Life and Death, The Collapse of Our Traditional Ethics (1994), Italian translation, Ripensare la vita. La vecchia morale non serve più, Milano, 1996 (reprinted, with another subhead: Ripensare la vita. Tecnologia e bioetica: una nuova morale per il mondo moderno, Milano, 2000, p. 65)
15 See P. Becchi, La morte. La questione irrisolta, in (Ragion pratica), 19, 2002, pp. 179-218.
16 See P. Singer, Morte cerebrale ed etica della sacralità della vita, in (Bioetica). VIII, 1, 200, pp.31-49. Singer’s essay has been the theme of an interesting John Finnis’ reply, which has till now been unpublished. Singer’s contribution, with this reply, are now included in the book edited by R. Barcaro, P. Becchi, Questioni mortali. L’attuale dibattito sulla morte cerebrale e il problema dei trapianti, (already quoted).
17 For a more detailed discussion see R. Bancaro, P. Becchi, Morte celebrale e trapianto di organi, in Bioetica chirurgica e medica, edited by L. Battaglia e G. Macellari, Noceto, (PR), Essebiemme, pp. 87-103 and Id., La “morte cerebrale” è entrata in crisi irreversibile?. in (Politica del diritto), XXXIV, 4, 2003, pp. 653-679. On the German debate see for example: H. Thomas, Sind Hirntote Lebende ohne Hirnfunktionen oder Tote mit erhaltenen Körperfunktionen ?, in (Ethik in der Medizin), 6, 1994, pp.189-207, J. Hoff, J. in der Schmitten ( edited by), Wann ist der Mensch tot? Organverpflanzung und Hirntodkriterium, Reinbeck bei Hamburg, 1994; M. Klein, Hirntod: Vollständiger und irreversibler Verlust aller Hirnfunktionen?, in (Ethik in der Medizin), 7, 1995, pp.6-15, C. Wiesemann, Hirntod und Gesellschaft. Argumente für einen pragmatischen Skeptizismus, in (Ethik in der Medizin), 7, 1995, pp. 16-28; K. Stapenhorst, Über die biologisch-naturwissenschaftlich unzulässige Gleichsetzung von Hirntod und Individualtod und ihre Folgen für die Medizin, in (Ethik in der Medizin), 8, 1996, pp.79-89, W. Höfling, S. Rixen, Verfassungsfragen der Transplantationsmedizin. Hirntodkriterium und Transplantationsgesetzt in Deutschland, Tübingen, 1996; G. Höglinger, S. Kleiner (edited by), Hirntod und Organtransplantation, Berlin, 1998, F. Oduncu, Hirntod und Organtransplantation. Medizinische juristische und ethische Fragen, Göttingen, 1998; R. Stoecker, Der Hirntod. Ein medizinethisches Problem und seine moralphilosophische Transformation, Freiburg, 1999; T. Schlich, Ethik und Geschichte: Die Hirntoddebatte als Streit um die Vergangenheit, in (Ethik in der Medizin), 11, 1999, pp.79-88; G. Brudermüller, K. Seelmann (edited by), Hirntod. Zur Kulturgeschichte der Todesfeststellung, Frankfurt a. M., 2001. On the Japanese debate see: H. Kawaguchi, Strafrechtliche Probleme der Organtransplantation in Japan, Freiburg i. B., 2000; M. Morioka, Reconsidering Brain Death: A Lesson from Japan’s Fifteen Years of Experience, in (Hastings Center Report), 31, 4, 2001, pp.41-46. The debate diffusion, also in the general opinion, is clear by the daily press analysis. See for instance: Transplants from brain-dead patients burdensome: study, in (Japan Economic Newswire) ( International News), Tokio, 8 maggio 2002; Transplants of organs from brain-dead man begin, in (Japan Economic Newswire)( International News), Osaka, 12 novembre 2002; Organs from Wakayama brain-dead man transplanted, in (Japan Economic Newswire)( International News), Osaka, 13 Novembre 2002; Flawed test for brain death (violated law), in (The Yomiuri Shimbun/Daily Yomiuri), 25 Febbraio 2003.
18 See R.D. Truog, J.C. Fackler, Rethinking brain death, in (Critical Care Medicine), 20, n. 12, 1992, pp.1705-1713. Starting from the results he achieved with this article, Truog has dealt with brain death problem more than one time. In an article of 1997 (R.D. Trough, Is It Time to Abandon Brain Death?, in (Hastings Center Report), 27, 1, 1997, pp. 29-37) instead of putting forward the proposal of the replacement of brain death with the cortical one, as he did when he wrote with Facler in 1992, Troug hopes for the traditional cardio-respiratory standard comeback in order to declare death and, at the same time, he hopes for a separation between transplantations problem and the debate on brain death. He thinks that doing transplantation might be only carried on by finding a different excuse from that one given till now by a definition of brain death, which is more and more at a turning-point. And it was exactly with the attention drawn to the need to give transplantations a moral basis that Troug wrote a new article: R.D. Troug, Organ Transplantation Without Brain Death, in (Annals of the New York Academy of Science), 913, 2000, pp. 229-239.
19 See for example D.A. Shewmon, “Brainstem Death” , “Brain Death” and Death: A Critical Re-Evaluation of the Purported Equivalence, in (Issues in Law & Medicine), 14, 2, 1998, pp.125-145 (now translated into Italian and it’s entitled “ Morte del tronco cerebrale”, “morte cerebrale” e morte: un riesame critico della presunta equivalenza, in the book edited by R.Barcaro, P. Becchi, Questioni mortali. L’attuale dibattito sulla morte cerebrale e il problema dei trapianti, Naples, in the press and the latest one: D.A. Shewmon, The Brain and Somatic Integration: Insights Into the Standard Biological Rationale for Equating “Brain Death” With Death, in (Journal of Medicine and Philosophy), 26, 5, 2001, pp. 457-478.
20 The problem has been clearly illustrated by two American scientists: S.J. Youngner, R.M. Arnold, Philosophical Debates About the Definition of Death: Who Cares?,in (Journal of Medicine and Philosophy), 26, 5, 2001, pp.527-537.