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Consciousness: The Most Critical Moral (Constitutional) Standard for Human Personhood

Published online by Cambridge University Press:  24 February 2021

Ronald E. Cranford
Affiliation:
Associate Physcian in Neurology, Hennepin County Medical Center, Minneapolis, Minnesota.
David Randolph Smith
Affiliation:
Vanderbilt University School of Law, Nashville, Tennessee.

Extract

For the past two decades, the medical profession and society have debated the definition of death. Some reasonable consensus has been reached on this issue, in theory and in practice. In the last few years, however, a far more important debate has been evolving — the definition of human personhood. Human personhood has been discussed extensively in the past with respect to the abortion question and other issues concerning the beginning of life. More recently, however, the definition of personhood has been raised with respect to termination of treatment decisions at the end of life and, in particular, on the appropriate care of patients in a persistent vegetative state.

Our major premise is that consciousness is the most critical moral, legal, and constitutional standard, not for human life itself, but for human personhood. There is nothing highly original in our approach to this particular issue; others have advanced similar arguments in recent years.

Type
Articles
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1987

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References

1 See, e.g., Green, & Wilder, , Brain Death and Personal Identity, 9 PHIL. & PUB. AFF., 105, 105-06 (1980)Google Scholar; R. VEATCH, DEATH, DYING, AND THE BIOLOGICAL REVOLUTION: OUR LAST QUEST FOR RESPONSIBILITY, 46-51 (1976); Youngner, & Bartlett, , Human Death and High Technology: The Failure of Whole Brain Formulation, 99 ANNALS OF INTERNAL MED. 252-53 (1983)CrossRefGoogle Scholar.

2 Cranford, , The Persistent Vegetative State: The Medical Reality (Getting the Facts Straight), 18 HASTINGS CENTER REP. 27, 28 (1988)CrossRefGoogle ScholarPubMed.

3 Smith, , Legal Recognition of Neocortical Death, 71 CORNELL L. REV. 850, 851 n.6Google Scholar; see infra text at 237.

4 Barber v. Superior Ct., 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (1983); see Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674 (1987); Corbett v. D'Alessandro, 498 So.2d 386 (Fla. Dist. Ct. App.), rev denied, 492 So.2d 1331 (Fla. 1986); In re Prange, No. 86-3398 (Ill. App. Ct. 1st Dist. 4th Div. Feb. 11, 1988); Brophy v. New England Sinai Hosp., Inc., 398 Mass 417,497 N.E.2d 626 (1986); In re Gardner, 534 A.2d 947 (Me. 1987); In re Torres, 357 N.W.2d 332 (Minn. 1984); In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987); In re Peter, 108 N.J. 365, 529 A.2d 419 (1987); In re jobes, 108 N.J. 394 529 A.2d 419 (1987); Delio v. Westchester County Med. Center, 129 A.D.2d 1, 516 N.Y.S.2d 363 (1987); In re Eichner (In re Storar), 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, cert, denied, 454 U.S. 858 (1981).

5 In re jobes, supra note 4.

6 In re Peter, supra note 4.

7 In re Conroy, 98 N.J. 321 (1985).

8 Jobes, 108 N.J. at 402-03, 529 A.2d at 438.

9 Id. at 406, 529 A.2d at 440.

10 Peter, 108 N.J. at 375, 527 A.2d at 424.

11 Child Abuse and Neglect Prevention and Treatment, 45 C.F.R. §§ 1340.1-.20 (1987).

12 Id. at § 1340.15(b)(2)(i).

13 PRESIDENT's COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, DECIDING TO FOREGO LIFE-SUSTAINING TREATMENT 197 (1983) [hereinafter PRESIDENT's COMMISSION].

14 Withholding or Withdrawing Life-Sustaining Medical Treatment, in CURRENT OPINIONS OF THE COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS OF THE AMERICAN MEDICAL ASSOCIATION 12-13 (1986); see also Position of the American Academy of Neurology on Certain Aspects of the Care and Management of the Persistent Vegetative State Patient, in NEUROLOGY (1988)(in press) (position approved by the Executive Board of the American Academy of Neurology on Apr. 21, 1988).

15 Hastings Center, Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying 28-29 (1987).

16 Id.

17 Id. at 29.

18 Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death, A Definition of Irreversible Coma, 205 J.A.M.A. 85 (1968)Google Scholar.

19 One of the most critical prerequisites to societal acceptance of brain death as the death of the person was assurance by the medical profession that the diagnosis and prognosis of this medical syndrome were extraordinarily accurate and that there were well-defined criteria which could be applied to individual cases. Id. at 85-86.

20 “No one can ever have more than inferential evidence of consciousness in another person. A detailed analysis of the nature of consciousness is not needed, however, when considering the class of patients in whom all possible components of mental life are absent — all thought, feeling, sensation, desire, emotion, and awareness of self or environment…. “Most of what makes someone a distinctive individual is lost when the person is unconscious, especially if he or she will always remain so. Personality, memory, purposive action, social interaction, sentience, thought, and even emotional states are gone.” PRESIDENT's COMMISSION, supra note 13, at 174-75.

21 For a discussion of PVS, see Brierly, , Adams, , Graham, & Simpson, , Neocortical Death After Cardiac Arrest: A Clinical, Neurophysical, and Neuropathological Report of Two Cases, 2 LANCET 560, 64 (1971)Google Scholar; Cranford, & Smith, , Some Critical Distinctions between Brain Death and the Persistent Vegetative State, 6 ETHICS IN SCIENCE & MED. 199-209 (1979)Google Scholar; Dougherty, , Rawlinson, , Levy, & Plum, , Hypoxic-ischemic Brain Injury and the Vegetative State: Clinical and Neuropathology Correlation, 31 NEUROLOGY 991 (1981)CrossRefGoogle Scholar; Jennet, & Plum, , Persistent Vegetative State After Brain Damage, 1 LANCET 734-37 (1972)CrossRefGoogle Scholar; Levy, , Carrona, , Singer, , Lapinski, , Frydman, & Plum, , Predicting Outcome From Hypoxic-ischemic Coma, 253 J.A.M.A. 1420 (1985)CrossRefGoogle Scholar; Levy, , Bates, , Caronna, , Cartlidge, , Knill-Jones, , Lapinski, , Singer, , Shaw, & Plum, , Prognosis in Nontraumatic Coma, 94 ANNALS OF INTERNAL MED. 293301 (1981)CrossRefGoogle Scholar; Levy, Knill-Jones & Plum, The Vegetative State and Its Prognosis Following Nontraumatic Coma, in BRAIN DEATH: INTERRELATED MEDICAL AND SOCIAL ISSUES 298-306 (1978).

22 Cranford, , Termination of Treatment in the Persistent Vegetative State, 4 SEMINARS IN NEUROLOGY 3644 (1984)CrossRefGoogle Scholar.

23 Caplan, , Should Fetuses or Infants Be Utilized as Organ Donors? 1 BIOETHICS 119-40 (1987)Google ScholarPubMed; Cranford, & Roberts, , Use of Ancencephalic Infants as Organ Donors: Crossing a Threshold, in PEDIATRIC BRAIN DEATH 150 (Kaufman, H. ed. 1987)Google Scholar; Fletcher, , Robertson, & Harrison, , Primates and Anencephalics as Sources for Pediatric Organ Transplants: Medical, Legal and Ethical Issues, 1 FETAL THERAPY 150-64 (1986)CrossRefGoogle Scholar.

24 410 U.S. 113 (1973).

25 Glantz, , Abortion and the Supreme Court: Why Legislative, Motive Matters, 76 AM. J. OF PUB. HEALTH 1452 (1986)CrossRefGoogle Scholar; Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 (1986).

26 Supra note 14, at 1-2.

27 Clinical diagnoses are obtained by observation of the patient and by physical examination without laboratory studies.

28 Levy, , Differences in Cerebral Blood Flow and Glucose Utilization in Vegetative Versus Locked-in Patients, 22 ANNALS OF NEUROLOGY 673-82 (1987)CrossRefGoogle Scholar[hereinafter Cerebral Blood Flow

29 Mentation is another term for consciousness.

30 Cerebral Blood Flow, supra note 28, at 673-74, 679.

31 Supra note 4, at 425 (“While a benefits/burdens analysis is difficult with marginally cognitive patients like Claire Conroy, it is essentially impossible with patients in a persistent vegetative state. By definition, such patients, like Ms. Peter, do not experience any of the benefits or burdens that the Conroy balancing tests are intended or able to appraise. Therefore, we hold that these tests should not be applied to patients in the persistent vegetative state.“).

32 398 Mass. 417, 497 N.E.2d 626 (1986).

33 Supra note 13, at 181-82 (“The primary basis for medical treatment of patients is the prospect that each individual's interests [specifically, the interest in well-being] will be promoted. Thus, treatment ordinarily aims to benefit a patient through preserving life, relieving pain and suffering, protecting against disability, and returning maximally effective functioning. If a prognosis of permanent unconsciousness is correct, however, continued treatment cannot confer such benefits. Pain and suffering are, absent, as are joy, satisfaction and pleasure. Disability is total and no return to an even minimal level of social or human functioning is possible.“)

34 See Smith, supra note 3.

35 Smith, supre note 3 at 872 n.128 (because Sunny Von Bulow was reduced to a persistent vegetative state, her husband Claus could only be charged with attempted murder and not first degree murder).

36 Smith, supra note 3, at 887.

37 Id., at 872-73 n.130 (citing Jorrie, & Standley, , The Tax Advantages of Lingering Death, 48 TEX. B.J. 1070(1985)Google Scholar).

38 Cranford, supra note 2, at 30-32.

39 TRIBE, L., AMERICAN CONSTITUTIONAL LAW 1308 (1988)Google Scholar (emphasis in original).

40 J. MILL, ON LIBERTY, 157 (1859).

41 Cranford, Life, Death, Awareness, and Suffering in SOCIAL RESPONSIBILITY: BUSINESS, JOURNALISM, LAW AND MEDICINE 41-50 (L. Hodges, ed. 1985).

42 See, e.g., MASS. GEN. L. ch. 90, § 24G (1969 & Supp. 1988); FLA. STAT. § 782.09 (1976).

43 See, e.g.. Ill. ANN. STAT. ch. 70, para. 2 (1959); 42 PA. CONS. STAT. § 8301(a) (1982).

44 See, e.g., IDAHO CODE § 32-102 (1983); Ill. STAT. ANN. ch. 110, para. 13-118 (Smith-Hurd 1983).

45 Doe v. Israel, 358 F. Supp. 1193 (D.R.I. 1973).