Brain Death Is the End of Life? On the Right to Freely Choose the Legal Criterion for Declaring the End of Life
Emil MAZZOLENI, University of Milan, Italy
Today’s scientific and technological progress has generated not only ethical, but also legal problems. In practice, the innovative clinical therapy used to resuscitate patients in cardiac arrest has obliged increasing numbers of states to review the legal criteria they apply to certifying death. However, the global spread of the standard based on brain death has met with resistance in two states: Vatican City and Japan. The reasons of legislative distrust in brain death legal criterion are not religious or cultural but ethical and philosophical; in particular, I have identified two different reasons: first the uncertain borderline between life and death and second the close connection between brain death and organ transplantation. The report of the Harvard Medical School (1968) developed a definition of irreversible coma as brain death just on the basis of extra-scientific justifications, without considering some possible bioethical objections; in fact, the philosopher Hans Jonas focused his critical on the paradoxical reversal of aims related to this report: the medical duty was not longer to treat patients until they have been declared dead, but to declare patients dead as soon as possible according to free medical resources for organ transplantation. Nevertheless, the normative impossibility to perform organ transplants in absence of brain death legal criterion has convinced the Japanese lawmakers of the need for a compromise bill. Today’s Japanese law allows everyone to freely choose the legal criterion for declaring the end of its life, a sort of conscientious objection in the standard of brain death. This paper sets out to compare the Japanese law on organ transplantation with the Italian law on declaration of death, as well as identifying some philosophical, ethical and legal reasons that explain why legislative safeguards should be adopted when enshrining the criterion of brain death in legislation.
Is Preserving the Capacity for Consciousness of Cerebrum Function Essential to Human Existence?: Brain View vs Animalism
Yuichi MINEMURA, State University of New York
In Jeff McMahan’s brain view, a patient no longer exists when his/her capacity for consciousness of cerebral function irreversibly ceases. According to McMahan, the essence of human existence is embodied in the mind which appears due to the preservation of the capacity for consciousness. McMahan claims that an early embryo is not a human being but merely an organism, being non-identical to a person with consciousness. A patient in a persistent vegetative state (PVS) is also thought to be merely an organism without the capacity for consciousness and is regarded as a non-crucial entity, losing an interest in living.
Contrary to McMahan, I clarify that whether an organism has the capacity for consciousness of cerebral function is not relevant to the essence of a human being by referring to animalism, in which the essence of a human being is preserved by biological continuity such as integrative function. An early embryo grows into a being with consciousness which is identical to itself as brain function develops, not developing into the other entity which is non-identical. I also claim that a PVS patient does not lose interest in living, while s/he exists as an organism which preserves integrative function, and maintains human identity, not merely an organism. Then, I argue that McMahan’s view, in which two different kinds of entities, a human person and human organism, are presumed to reside in a living body, falls under the too many thinkers problem that leads to a conceptual puzzle regarding human identity.
In order to explain the essence and identity of human existence with logical consistency, I claim that animalism, which regards a human being essentially as an organism, not as a conscious being, is more plausible than the brain view. I also argue, with animalism, that consciousness is fundamentally created and is maintained by biological continuity due to whole brain function and the body, which is the preservation of brain circulation, not cerebrum function alone.
Paul Ricoeur and the Integration of Clinical Methods: Understanding the Illness Experience Better by Explaining the Disease More
Toshiki NISHIMURA, Yokuhukai Hospital
The purpose of medicine is the healing of a suffering patient through not only treating the disease itself but also by taking care of the illness experience as a whole. For this purpose, it is crucial to integrate clinical methods in the human and natural sciences. In this presentation, I will argue that Paul Ricoeur’s interpretation theory based on the dynamic relationship between understanding (the verstehen of the German hermeneutical tradition) and explanation (the erklären of that same tradition) offers a useful way to integrate the multidisciplinary methodologies in medicine.
In the work of Wilhelm Dilthey prior to Ricoeur, explanation finds its paradigmatic field of application in the natural sciences whilst understanding finds its original field in the human sciences. The dichotomy in Dilthey’s hermeneutics between understanding and explanation opposes two methodologies and two spheres of reality, nature and mind. First, I will clarify how Karl Jaspers applied Dilthey’s theory to psychiatry in his famous book, General Psychopathology, which concludes that a number of psychotic symptoms are fundamentally un-understandable.
Against this polarized approach of a pure dichotomy, Ricoeur’s work demonstrates in what way explanation requires understanding and how understanding brings forth in a new way the inner dialectic, which constitutes interpretation as a whole in the text reading. Second, I will trace how Ricoeur uses the dialectical structure of explanation and understanding in order to broaden the interpretation’s field of application beyond the text to include history, action and justice with the aphoristic formula: explain more in order to understand better.
I will conclude my presentation by asking how integration of multidisciplinary methodologies in medicine should be practiced by physicians concerned with the healing of the suffering patients. I suggest that we should think of the integration of clinical methods as the dialectic process of understanding the illness experience better by explaining the disease more.
Why Does “Preemptive Medicine” Matter to Bioethics?
Kiyoshi MURAOKA, Bukkyo University
Recently, a new medical strategy of preventive medicine, called “preemptive medicine”, has been established.
This article outlines preemptive medicine and discusses some of its issues in light of bioethics.
First, in preemptive medicine, preventive therapeutic intervention is provided not only to “potential patients” who are likely to develop illness as shown by presymptomatic testing (“high-risk strategy”), but also to many individuals having no symptoms only under the pretext of “preventing future diseases”, assuming that the individuals are “at risk” (“population strategy”). Preemptive medicine is comprised of a group of medical practices in the treatment of metabolic syndrome and L.S.D. (lifestyle-related disease), vaccination against infectious diseases and cancer, and prophylactic mastectomy, in which there is a common factor: a probabilistic “risk”. Preemptive medicine has a deterministic (fatalistic) nature derived from the specific etiology of modern medicine, making any potential patient afraid of virtual diseases and a fatalist who depends excessively on medical practice.
Based on these aspects, we will discuss the following issues:
1) How can we justify the intervention with preemptive medicine in asymptomatic persons?
2) How can we rationalize naming non-symptomatic persons “patients” / “potential patients”?
3) Can we accept the deterministic nature of preemptive medicine that can interfere with persons’ autonomous self-determination (informed choice)?
Although any preventive medicine seems desirable in theory, it is difficult to accept the delivery method of preemptive medicine at present without any clear solutions to these issues. The methodology of preemptive medicine should be bioethically justified as far as possible.