At Last! Aye, and There's the Rub

Mea culpa. In 1981 the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, of which I was the Executive Director, recommended to the President and Congress that all federal departments and agencies that conduct or support human subjects research adopt "as a common core" the HHS regulations, "while permitting additions needed by any department or agency that are not inconsistent with these core provisions." The commission believed-rightly, I still think-that having uniformity would ease administration, reduce regulatory burdens, simplify oversight, and make research more efficient. Yet our naïve expectation the task could be accomplished in 180 days meant that we failed to anticipate that if it took much longer-namely, the 10 years that passed before the Common Rule was issued-federal officials would thereafter be reluctant to change the regulations and that when they tried to do so twenty years later, with the issuance of the ANPRM in 2011, they would propose comprehensive revisions. I argue that was the wrong conclusion to draw from the difficulties in issuing the first Common Rule, and that the process of producing the new "final rule" on January 19, 2017-during which many of the proposed changes were either dumped or promulgated without being adequately vetted-reinforces the conclusion that a more incremental process, with ongoing involvement of the public through an advisory body like the President's Commission, would be a much better way to proceed.

Respecting difference and moving beyond regulation: tasks for U.S. bioethics commissions in the twenty-first century

This article focuses on two possible missions for a national bioethics commission. The first is handling differences of worldview, political orientation, and discipline. Recent work in political philosophy emphasizes regard for the dignity of difference manifested in "conversation" that seeks understanding rather than agreement. The President's Council on Bioethics gets a mixed review in this area. The second is experimenting with prophetic bioethics. "Prophetic bioethics" is a term coined by Daniel Callahan to describe an alternative to compromise-seeking "regulatory bioethics." It involves a critique of modern medicine. In the contemporary context, the areas of biotechnology and access to health care cry out for prophetic attention. The Council has addressed biotechnology; unfortunately, that experience suggests that the kind of prophecy that it practices poses risks to conversation. With regard to access issues, the article proposes an effort that unites themes of human dignity, solidarity, and limits in support of reform, while highlighting, rather than papering over, differences.

The "nation's conscience:" assessing bioethics commissions as public forums

As the fifth national bioethics commission has concluded its work and a sixth is currently underway, it is time to step back and consider appropriate measures of success. This paper argues that standard measures of commissions' influence fail to fully assess their role as public forums. From the perspective of democratic theory, a critical dimension of this role is public engagement: the ability of a commission to address the concerns of the general public, to learn how average citizens resolve moral issues in healthcare, and to monitor public opinion on the topics addressed in the commission. Such a public forum role is supported by the critical literature within bioethics, which has deemed some commissions successful, supported more generally by the history of bioethics as a reform discourse that has brought socially important values into the medical domain, and supported more generally still by the example of the great social issues commissions of the 1960s.

Non-heart-beating organ donation: a defense of the required determination of death

The family of a patient who is unconscious and respirator-dependent has made a decision to discontinue medical treatment. The patient had signed a donor card. The family wants to respect this decision, and agrees to non-heart-beating organ donation. Consequently, as the patient is weaned from the ventilator, he is prepped for organ explantation. Two minutes after the patient goes into cardiac arrest, he is declared dead and the transplant team arrives to begin organ procurement. At the time retrieval begins, it is not certain that the patient's brain is dead or that cardiac function cannot be restored. Procurement follows uneventfully, and two transplantable kidneys are retrieved.

Many people now consider such cases of non-heart-beating organ donation to be ethically permissible. However, widespread disagreement persists as to how such practices are to be justified and whether such practices are compatible with the Uniform Declaration of Death Act (UDDA). In this paper, I argue that non-heart-beating organ donation can be ethically justified, that in the justified cases the patients are in fact dead, and that the early declarations of death required for such donation do comply with the UDDA.

The moral underpinning of the proxy-provider relationship: issues of trust and distrust

Despite clear legislative and judicial support, a well established ethical consensus, and increased efforts at information dissemination and education, proxy decision making for incapacitated patients continues to produce moral muddle and poor resolutions in end-of-life care.

In her analysis of the proxy-doctor relationship, Nancy Dubler spells out the institutionalized patterns that keep the promise of proxy directives so often unrealized. Facing medically complex care of an incapacitated patient, health care teams are apt to view the proxy as a potentially indecisive or unrealistically demanding decision-maker, less a stand-in for the patient than an interloper whose improper, misguided, or self-interested decisions will work against the patient's best interests. So perceived, proxies are routinely relegated to the edges of care planning discussions, left relatively uninformed and unconsulted, and then suddenly thrust center stage to face decisions they find overwhelming. Confronting such decisions, proxies need support and compassion. What they often find is isolation and distrust, a web of professional and institutional practices that trammel their efforts to understand and execute their role.

Postmodern personhood: a matter of consciousness

The concept of person is integral to bioethical discourse because persons are the proper subject of the moral domain. Nevertheless, the concept of person has played no role in the prevailing formulation of human death because of a purported lack of consensus concerning the essential attributes of a person. Beginning with John Locke's fundamental proposition that person is a 'forensic term', I argue that in Western society we do have a consensus on at least one necessary condition for personhood, and that is the capacity for conscious experience. When we consider the whole brain formulation of death, and the most prominent defense of it by the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, we can readily identify the flaws that grow out of the failure to define human death as the permanent loss of the capacity for conscious experience. Most fundamental among these flaws is a definition of human death that reduces persons to the capacity of the brain to regulate purely physiological functioning. Such a formulation would, in theory, apply to any member of the animal kingdom. I suggest that an appropriate concept of death should capture what it is about a particular living being that is so essential to it that the permanent loss of that thing constitutes death. What is essential to being a human being is living the life of a person, which derives from the capacity for conscious experience.

The Quinlan case revisited

... The point is that although physicians and hospitals (and their legal counsel) certainly feared in the 1970s and still fear prosecution and civil liability (and perhaps to an unreasonable degree), neither the complex psychosocial and economic nor the equally complex philosophical questions surrounding stopping artificial life support were settled at the time of the Quinlan case, and they are still not settled today. Perhaps our legal history does not need to be revised all that much.

"Playing God" and invoking a perspective

The article sorts through some uses of the phrase "playing God," finding that the phrase does not so much state a principle as invoke a perspective, a perspective from which scientific and technological innovations are assessed. It suggests the relevance of a perspective in which "God" is taken seriously and "play" playfully.

Genetic testing for children and adolescents. Who decides?

In the future there is likely to be a large array of DNA-based tests to diagnose single-gene disorders and to identify predispositions to genetically influenced disorders. This article focuses on ethical, legal, and psychological implications of testing healthy children and adolescents for such disorders. Testing may offer medical or psychological benefits but may harm parent-child bonds or the child's self-concept. Clinicians may encounter situations where they must weigh the child's or adolescent's wishes against wishes of parents. We examine the legal history and current status of minors as health care consumers; psychosocial research on their maturity to make choices; impact of testing on intrafamilial relationships; views of national commissions on appropriate ages of assent and full informed consent; ethical and legal requirements for competence in children and adolescents; and disclosure of genetic information. We propose guidelines for predictive genetic testing and counseling of children and discuss risks and benefits of testing.

Rational desires and the limitation of life-sustaining treatment

It is accepted that treatment of previously competent, now incompetent patients can be limited if that is what the patient would desire, if she were now competent. Expressed past preferences or an advance directive are often taken to constitute sufficient evidence of what a patient would now desire. I distinguish between desires and rational desires. I argue that for a desire to be an expression of a person's autonomy, it must be or satisfy that person's rational desires. A person rationally desires a course of action if that person desires it while being in possession of all available relevant facts, without committing relevant error of logic, and "vividly imagining" what its consequences would be like for her. I argue that some competent, expressed desires obstruct autonomy. I show that several psychological mechanisms operate to prevent a person rationally evaluating what future life in a disabled state would be like. Rational evaluation is difficult. However, treatment limitation, if it is to respect autonomy, must be in accord with a patient's rational desires, and not merely her expressed desires. I illustrate the implications of these arguments for the use of advance directives and for the treatment of competent patients.

Institutional ethics committees and the shield of immunity

Institutional ethics committees have been hailed as a good resource for physicians confronting complex ethical issues in patient care. Physicians may seek ethics committee consultations to receive impartial assistance in decision making, to resolve conflicts, and to avoid cumbersome court procedures and unwieldy litigation. The endorsement of ethics committees by the President's Commission, the American Hospital Association, the American Medical Association, and the Department of Health and Human Services, along with recent state legislation governing committees in Maryland, New Jersey, and Hawaii, raises questions about the proper scope and authority of ethics committees. We examined the accountability of institutional ethics committees and argue against immunity-conferring statutes that shield physicians who follow a committee's advice from civil and criminal liability.

Brain death: reconciling definitions, criteria, and tests

Brain death has been discussed extensively for the last 25 years. Most investigators now believe that requiring death of the entire brain as the criterion for brain death in the Uniform Determination of Death Act and the standard clinical tests of brain death outlined in the Report of the Medical Consultants to the President's Commission have produced a satisfactory resolution of the issues surrounding the determination of death. However, we show that satisfying the standard medical tests does not guarantee that all brain functions have actually ceased and that there is tension between the legal criterion and the standard clinical tests. After considering and rejecting six possible reconciliations, we present an alternative approach that does not acknowledge any sharp dichotomy between life and death and incorporates the proposition that the questions of when care can be unilaterally discontinued, when organs can be harvested, and when a patient is ready for the services of an undertaker should be answered independent of any single account of death.

Finding a forum for bioethics in U.S. public policy

Advances in biomedical research and health care simultaneously create practical benefits and ethical dilemmas. These bioethical dilemmas are the subject of intense social and political debate. Recent attempts in the United States to address these issues in a national, public policy setting have had mixed success. The absence of a single national voice has resulted in many voices at many levels. This article describes and analyzes past national bioethics bodies in an effort to find commonalities for both success and failure. It concludes that reconstitution of an Ethics Advisory Board within the Department of Health and Human Services and the formation of a President's Bioethics Commission are needed as the nation confronts new and difficult choices in research ethics and the delivery of health care.

Persons and death: what's metaphysically wrong with our current statutory definition of death?

This paper challenges the recommendations of 1981 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research that all jurisdictions in the United States should adopt the Uniform Determination of Death Act, which endorses a whole-brain, rather than a higher-brain, definition of death. I argue that the Commission was wrong to reject the "personhood argument" for the higher-brain definition on the grounds that there is no consensus among philosophers or the general population as to what constitutes "personhood". I claim that philosophers agree that some potential for cognitive function is necessary for personhood and that, when this is absent in cases of anencephaly and persistent vegetative state (PVS), the individual should be considered dead. I further argue that the lack of consensus among the general population is due in large measure to misunderstandings about the medical reality of PVS and beliefs influenced by feelings for a specific individual in PVS. I also examine and reject two tutorist arguments which have been used to support the Commission's position: that the higher-brain definition would threaten the severely senile and severely retarded, and that there are not currently adequate medical techniques for determining when all higher-brain activities have ceased.

Statutory definitions of death and the management of terminally ill patients who may become organ donors after death

The law stipulates that death is irreversible. Patients treated in accord with the Pittsburgh protocol have death pronounced when their condition might well be reversed by intervention that is intentionally withheld. Nevertheless, the protocol is in accord with the medical "Guidelines for the Determination of Death." However, the Guidelines fail to capture the intent of the law, which turns out to be a good thing, for the law embodies a faulty definition of death. The inclusion of "irreversible" in the legal definition makes that definition excessively demanding and out of step with the ordinary concept of death. On this basis the protocol is absolved of the moral but not the legal charge that it involves vivisection.

Brain death: a durable consensus?

Is it even conceivable that this global consensus [on the whole-brain definition of death] could, in time, be regarded as a very temporary and makeshift expedient, a momentary substitute for a resolution of some profoundly difficult issues which for a time, perhaps a brief time, fit with both the technical capacities and the legal needs of those who endorsed it? And that in the long run it could linger as a footnote, or perhaps a chapter heading, in the long history of man's conceptions of life and death? This suggestion is so far from conventional wisdom today that one who espouses it risks being regarded as a crank. Nevertheless, I believe that the argument in its favor, while not conclusive, is much stronger than the argument against it (and in favor of the prevailing consensus). I will state the argument briefly, with particular reference to the landmark report in 1982 in Washington of the President's Commission for the Study of Ethical Problems in Medicine, and will situate the argument in the context of trends in contemporary bioethics. I do not expect to win over, in this one pass, those who have been convinced of the validity of the conventional view. I do hope, however, to re-open the issue; in particular, to provide reasons to regard the issue as far from settled.

Criteria for death: self-determination and public policy

'Whole brain death' criteria have found support in Western cultures in regard to post-mortem organ donation and the termination of care for patients meeting these strict criteria. But they are of minimal use in Asian cultures and in the ethics of caring for the persistent vegetative patient. This paper introduces a formula for a global Uniform Determination of Death statute, based on the 'entire brain including brain stem' criteria as a default position, but allowing competent adults by means of advance directives to choose other criteria for determining death during the process of dying.

Brain death, religious freedom, and public policy: New Jersey's landmark legislative initiative

"Whole brain death" (neurological death) is well-established as a legal standard of death across the country. Recently, New Jersey became the first state to enact a statute recognizing a personal religious exemption (a conscience clause) protecting the rights of those who object to neurological death. The Act also mandates adoption through the regulatory process of uniform and up-to-date clinical criteria for determining neurological death.

American moralism and the origin of bioethics in the United States

The theology of John Calvin has deeply affected the American mentality through two streams of thought, Puritanism and Jansenism. These traditions formulate moral problems in terms of absolute, clear principles and avoid casuistic analysis of moral problems. This approach is designated American moralism. This article suggests that the bioethics movement in the United States was stimulated by the moralistic mentality but that the work of the bioethics has departed from this viewpoint.

Brain death and the anencephalic newborn

We will set the stage for our analysis by reviewing selected medical aspects of anencephaly, outlining the history of the use of anencephalics as organ sources, and summarising the results of an important study recently completed at Loma Linda University. We will then employ some of the arguments and justifications underlying the Uniform Determination of Death Act (UDDA) to claim that anencephaly is morally equivalent to brain death, i.e., the reasons for considering brain-dead patients to be dead also apply to anencephalics. Finally, we will critique our proposal and discuss its implications.

Human gene therapy and congress

Congress was the scene of conspicuous debate about human gene therapy during the 1980s. Congressional interest was sparked primarily by concerns about germ-line gene therapy expressed by clerics and public interest groups. The initial debate was provoked by Martin Cline's misadventures in 1980 and rekindled in 1983 by congressional resolution against germ-line intervention sponsored by Senator Mark Hatfield. The first hearing on gene therapy was held upon the release of the President's Commission report Splicing Life, in November, 1982, before a House subcommittee chaired by Congressman Albert Gore, Jr. Representative Gore later requested a report on gene therapy, which was released by the Office of Technology Assessment in December, 1984. He also sponsored the legislation that established the Biomedical Ethics Board and Biomedical Ethics Advisory Committee, Congress's abortive attempt to reestablish a federal bioethics commission. Implications of advances in human genetics, including gene therapy, were to be among the first topics addressed. Congress passed no substantive legislation affecting gene therapy research or clinical trials, but served principally as a national theater for debate. If and when germ-line gene therapy is contemplated, Congress will be faced with difficult choices, but will likely take no action to block trials that appear safe and are intended to produce clinical benefit for particular individuals.

The President's Commission: the need to be more philosophical

This paper argues, contrary to what has sometimes been claimed, that public commissions need to be more philosophical than they have been in analyzing crucial bioethical issues. It argues (a) that the failure of the President's Commission to develop and use even simple distinctions between life and personhood led to flaws in both its discussion of death and its discussion of persistent vegetative patients, and (b) that its treatment of access to health care fails to develop a coherent approach precisely because it is based on no serious philosophical reflections about justice in health care.