Ethics and Personhood:
Some Issues in Contemporary Neurological Science and Technology
By Dr. David L. Perry
Adapted from a presentation at a "Works in Progress" forum
sponsored by the Center for Biomedical Ethics at Stanford University on
December 11, 2001.
I. The mind-brain puzzle
Modern advances in neurological science and technology pose profound
challenges for our traditional concepts of the human person: they generate
metaphysical and moral questions about beings at the edges of human life,
from embryos that are not yet conscious, to persons who have lost their
capacity for rational thought or have become permanently unconscious.
Ill begin by framing these issues in the context of an ancient
puzzle that has been the subject of much philosophical and religious debate:
What is the relationship between the soul and the body (or the mind and
the brain)? We take for granted the intimate connection between our minds
and bodies. Its difficult to imagine our selves as disconnected
from the particular bodies we have. But we also have a strong intuition
that consciousness is a truly extraordinary thing in nature.
Many people have thought that the only way to account for the qualitative
distinction between brain and mind is to regard them as fundamentally
different substances, one material, the other immaterial. The 17th-century
philosopher Rene Descartes was one of the most famous proponents of that
view, but religious traditions have affirmed similar beliefs for millennia.
The attraction of such a concept is obvious: if our soul/mind is not a
material thing, then its conceivably immortal. The soul might survive
the death of the body in an afterlife, as the Jewish, Christian and Islamic
religions teach. Or the soul might be reincarnated through a potentially
unlimited succession of living bodies, as the Hindu or Buddhist traditions
But there turn out to be serious conceptual problems with the belief
that the mind and body are essentially different substances. If the soul
is immaterial, then it can have no location in space, and thus cannot
be contained by any physical brain or body. More importantly, an immaterial
mind could never interact with material things or events like the electrical
impulses and biochemical activities occurring constantly in and between
our neural cells. The belief that the soul is immaterial also flies directly
in the face of our daily experiences of being conscious of the physical
world through our bodily senses of sight, hearing and touch. An immaterial
mind could not be our mind; it would be utterly disconnected from our
embodied experience and self-identity.
(Note also that immaterial ghosts/spirits could never be seen, heard
or felt. On the other hand, if theyre asserted instead to be material
beings, then their presence ought to be measurable through controlled
scientific testsnone of which has ever proven their existence. See
Schick & Vaughn 1999b.)
Modern neuroscience is systematically revealing the correlations between
mental states and brain states, even if it hasnt yet shown their
causal relations nor proven that well ever be able to express mental
events entirely in electrical and biochemical terms. The most promising
philosophical approach to the mind-brain puzzleand one that is fully
compatible with modern neuroscienceis known as "property dualism."
This theory envisions the mind as an emergent property of individually
unconscious neural cells when they interact in complex ways, analogous
to wetness as an emergent property of water molecules, or life as an emergent
property of amino acid molecules which are individually lifeless (Searle
1992; Schick & Vaughn 1999a). I cannot do justice to that theory in
this short article. Suffice it to say that some appreciation of brain
functioning is essential to understanding what it takes to have a mind.
II. Who or what is a person?
To be classified as a "person" normally entails having strong
moral rights and legal protections, and higher moral status than living
things that cannot credibly be classified as persons. But as Karen Gervais
(1986) effectively argued, the more basic question here is a metaphysical
or ontological one about the necessary and sufficient conditions for knowing
when a particular kind of being exists or does not exist.
A. Five typical traits:
Acccording to philosopher Mary Anne Warren (1973), "the traits which
are most central to the concept of personhood . . . are, very roughly,
the following: 1. consciousness . . . and in particular the capacity to
feel pain; 2. reasoning (the developed capacity to solve new and relatively
complex problems); 3. self-motivated activity (activity which is relatively
independent of either genetic or direct external control); 4. the capacity
to communicate, by whatever means, messages of an indefinite variety of
types . . . ; 5. the presence of self-concepts, and self-awareness. .
Warren thinks that these traits comprise what we mean by a person in
the full-blown sense, but that a being need not have all of these attributes
in order properly to be considered a person in some sense. I think that
most of us would agree with that. We might lose the ability to communicate
and yet still remain the same essential person. And if self-motivated
activity were truly a necessary condition for personhood, wed all
be in trouble some of the time!
But Warren seems to believe that reasoning is both a necessary and sufficient
condition for personhood. This raises the intriguing possibility that
some non-human animals like chimps and dolphins might qualify as persons,
but also the disturbing implication that some human beings would not qualify,
such as the severely retarded or demented. In other words, if we set the
bar as high as Warren has, we logically exclude many vulnerable human
populations from the category of persons, and thus from the rights we
ascribe to persons, which is very troubling. (See Dombrowski 1997. For
a fascinating study of non-human mental capacities, consult DeGrazia 1996.)
We thus need to consider whether another human capacity besides rationality
could qualify as a necessary or sufficient condition for personhood. (Ill
ignore non-human animals in what follows.) One useful way to get at this
is to reflect on our concepts of death:
B. Determining the death of persons: How can we know that a person
has died, or when are we justified in declaring a person to be dead? Consider
these contending criteria:
1. Decomposition, when every last cell with a person's DNA has
died (ignoring cells in donated blood and other organs): This is clearly
a sufficient condition for the death of a person. It would seem utterly
ridiculous as a necessary condition. But consider the Vaticans claim
that a person is fully present from conception, when there is only an
undifferentiated embryo with a full complement of human DNA. Under that
assumption, its hard to see how anything short of complete cellular
decomposition would be sufficient to declare a person to be dead, since
the cessation of heart, lung or brain function could not logically be
sufficient conditions (Dombrowski & Deltete 2000). Moreover, in separating
the mind from the organic development of the brain, the person-from-conception
view seems to reflect a belief in an immaterial mind, which suffers from
the fatal metaphysical flaws I mentioned earlier. These points effectively
refute the claim that persons exist from conception.
2. Cessation of cardiopulmonary functions: This used to be considered
a sufficent condition throughout the world, and in a sense it remains
so legally in the U.S. in cases when brain death is not possible to assess.
It remains a necessary condition in some religions and cultures where
the soul is identified with breath or the blood. Of course, the fact that
we can resuscitate people with CPR after their breathing and heartbeat
have stopped--and often revive them to a conscious state with their full
personalities intact--proves that this criterion is not really a sufficient
condition for the death of a person, and need not be considered a necessary
condition. People who still believe that it is sufficient cannot also
expect to be resuscitated or maintained on ventilators without contradicting
3. Whole-brain death, i.e., the loss of function of the entire
brain: The first clinical case of a brain-dead individual whose heart
and lungs were maintained on a respirator was reported by French doctors
in 1959. In 1968, an ad hoc committee at Harvard Medical School chaired
by Henry Beecher recommended that doctors declare death based on the permanent
loss of all brain functions (Bernat 1994; Pernick 1999). Whole-brain death
is now a sufficient condition for declaring a person to be legally dead
in every U.S. state. This standard conveniently incorporates two common-sense
aspects of the death of a person, "the irreversible loss of the capacity
for consciousness and the irreversible cessation of integrated functioning
of the organism as a whole" (McMahan 1998).
4. Higher-brain/neocortical death: Many philosophers have questioned,
though, whether whole-brain death is a necessary condition for the death
of a person (Veatch 1975, 1993; Gervais 1986; Cranford & Smith 1987;
McMahan 1995). If what really matters is the permanent loss of consciousness,
then in theory we could declare persons dead even if they were not whole-brain
dead. This view is consistent with the ideawhich I find compellingthat
a person's life is coextensive with his or her capacity for experience
and thought. By this definition, human beings in permanent comas and persistent
vegetative states would be dead persons.
Depending on etiology, clinical diagnosis of permanent unconsciousness
prior to whole-brain death can be fairly certain after three months to
one year, and quite certain with positron emission tomography tests (Levy
et al. 1987; Cranford & Smith 1987). To avoid the risk of abuse, e.g.,
when death by higher-brain standard might be declared prematurely in order
to eliminate the financial burden on others of continued treatment, lawmakers
could easily stipulate very conservative criteria, such as PET scans showing
that the entire cerebral cortex no longer functions.
What would it mean to adopt the higher-brain standard as a sufficient
condition for declaring persons to be dead?
III. Some ethical considerations under the higher-brain approach:
A. Coma, PVS and anencephaly: If human beings in permanent comas
or persistent vegetative states are no longer persons, then life-sustaining
medical treatment is qualitatively futile for them. No one is "there"
anymore to benefit from such treatment; while biological life may continue,
the "subject" of that life is gone. Of course, if life-sustaining
treatment were maintained in order to preserve organs for harvesting,
then it would not be futile in every sense.
Two advantages of the higher-brain definition of death are: assaults
producing this appalling condition could be charged as homicides; and
money now spent on utterly futile treatments could be used instead to
benefit living persons (Cranford & Smith 1987). But there are also
some disadvantages: higher-brain death can be more difficult to diagnose
than whole-brain death; and PVS individuals would temporarily continue
to breathe spontaneously and have "wake-sleep" cycles after
withdrawal of feeding tubes, so declaring them dead might be disturbing
to caregivers--though perhaps not much more disturbing than PVS itself.
At the very least, it would be important to wait until the heart stopped
before burying or cremating the body! (The claim by Bernat 1994 that under
the higher-brain standard we would be logically required to treat a breathing
PVS human being as any other corpse is a red herring and simply not true.)
Anencephaly is a catastrophic malformation of the brain that originates
in developmental errors in the early embryo, preventing the formation
of a functioning cerebral cortex (Medical Task Force on Anencephaly 1990).
Although anencephalic fetuses and infants usually have working brainstems
(as in PVS), they permanently lack a capacity for consciousness and thus
can never become persons under the higher-brain definition (Cranford &
Smith 1987; Walters et al. 1997). Although they are legally alive, the
case for changing the law is compelling to me, whether or not they would
then be considered appropriate sources of transplant organs.
But if whole-brain death remains the legal standard, should the "dead-donor"
rule be modified to permit organ harvesting prior to whole-brain death?
Imagine that someone were to state in their living will that should they
succumb to PVS, their body may be maintained on life-support and used
not only as a source of organs but for testing drugs, training medical
and nursing students on intubation and other procedures, or even dissection.
This initially seemed an attractive option to me, but now Im more
troubled by it, seeing as it would set a precedent of using individuals
who were not legally dead simply for the benefit of others. So I would
prefer if higher-brain death became legally recognized as sufficient for
declaring the death of a person, though I doubt that this will be politically
possible for many years.
Do patients and surrogates have the moral right to insist on life-sustaining
treatment even after permanent loss of consciousness? I tend to think
not, even though stopping treatment would offend many people on religious
or moral grounds. (Note that we already permit physicians to declare death
by whole-brain criteria even when family members object.) But in order
to limit distress to patients and surrogates who wont accept the
higher-brain criteria of personhood, it may be more compassionate not
to mandate withdrawal of feeding tubes as a strict policy, but rather
to educate people about the nature of PVS and the futility of treatment.
B. Moral status of human embryos and fetuses: Many empirical studies
indicate that sentience is not possible before 20 weeks gestation, and
may not emerge until much later. Prior to 20 weeks, although billions
of neurons have already migrated to the cerebral cortex, there are almost
no synaptic connections between them or with the thalamus, which mediates
sensory perception. Partly because of the ambiguity of fetal EEG patterns,
its difficult to say precisely when consciousness first occurs.
But somewhere between 20 and 32 weeks gestation, the cortical neurons
become capable of firing in ways that make consciousness possible. The
brainstem and nervous system may function before that time, and there
may be reflex reactions to stimuli, but there is no one "there"
yet to experience sensory inputsthe lights are on, but nobodys
home. (Anand & Hickey 1987; Flower 1989; Morowitz & Trefil 1992)
Since early embryos and fetuses cannot experience harm, they lack interests
of their own which are necessary to have moral rights. Under the higher-brain
standard, they do not become persons until the onset of consciousness
(Steinbock 1992; Robertson 1994).
Its worth pointing out that the criterion of neocortical functioning
is distinct from viability and birth, both of which have legal significance
in the U.S. Since Roe v. Wade, federal law prohibits states from
giving fetuses the status of persons prior to birth, though in regulating
abortion it grants states a "compelling interest" in fetal life
from viability. But neither viability nor birth is directly correlated
with the capacity for consciousness (Gertler 1986), and no federal or
state law confers any significance on the latter.
Even if laws were changed, though, to accord late-term fetuses the rights
of persons because of their capacity for consciousness, this would not
entail a total ban on late-term abortions, since other laws permit the
killing of persons in self-defense, and almost never require people to
risk their health substantially in order to save others' lives. For example,
U.S. courts have been unwilling to force people to donate bone marrow
or kidneys, even if potential recipients are a perfect match and will
die for lack of them (Rhoden 1994). Ninety-eight percent of abortions
in this country are performed within the first 15 weeks of pregnancy anyway,
and most of the rest occur when the mothers life or health is at
risk or in cases of severe fetal abnormality. However, if conscious fetuses
were legally recognized as persons, a woman seeking a late-term abortion
might be required to show that continuing her pregnancy posed a threat
to her life or health. Federal law currently permits states to enact a
similar restriction regarding viable fetuses, but doesnt require
them to do so.
The NIH Human Embryo Research Panel (1994) recommended that experiments
on embryos left over from in vitro fertilization should be restricted
to a period of 14 days after conception, correlated with the appearance
of the "primitive streak." But the actual metaphysical and moral
significance of that development is trivial. Higher-brain criteria of
personhood would seem to permit such experiments well after 14 days, as
well as the use of embryos and early fetuses as sources of neural cells
for transplantation to treat brain diseases (Dunnett & Bjorklund 2000;
Chadwick & Goode 2000; Barinaga 2000). This also has significant implications
for the contemporary debate regarding "therapeutic" cloning
to derive stem cells. Even the intentional creation of embryos for experimental
purposes only, as long as those embryos were not sustained to the point
when consciousness became possible, would not by itself constitute a violation
of the rights of persons (Steinbock, 1992 Robertson 1994). Note that I
have focused exclusively here on the moral status of the human embryo
or fetus in itself, ignoring the value that its parents might ascribe
to it. It would be clearly wrong to use an embryo or fetus even for weighty
purposes without the informed consent of the parents.
IV. Brain damage, advance directives, and current best interests:
At some point in progressive dementia, or as a result of a devastating
stroke or head injury, the loss of memory and rational capacity can greatly
alter and diminish the self, and render one incompetent to make decisions
about medical treatment. Of course, one ought to remain a "moral
patient" with basic rights well after one is no longer capable of
being a moral agent. Ethicists rightly worry that helpless individuals
could wrongly be allowed to die without consideration of what is in their
own interests, whether they benefit from continued treatment, and whether
life is or could be still worth living from their point of view. But other
ethicists are troubled by the idea of overriding a previously competent
person's preferencese.g., not to have CPR or tube-feedingin
order to promote their best interests after they become incompetent. Let's
examine closely two contending perspectives on the relative importance
of consequentialist and non-consequentialist principles.
A. Rebecca Dresser and John Robertson (1989):
Incompetent patients by definition have impaired self-determination or
autonomy. Yet as Dresser and Robertson pointed out, courts have granted
such patients the right to refuse treatment as if they were competent.
"What patients would have wanted" if they were still competent
is given great weight, hence the importance of advance directives and
But D & R claimed that such patients' current interests may be very
different from their past preferences as competent persons. Previously,
the things that mattered to them were work, family, friends, independence,
and privacy; but now, "what was once of extreme importance to them
no longer matters. . . . An existence that seems demeaning and unacceptable
to the competent person may still be of value to the incompetent patient,
whose abilities, desires, and interests have so greatly narrowed."
This means that preferences stated by patients when competent may conflict
with and be detrimental to their interests after they become incompetent.
Also, advance directives usually don't specify conditions of incompetence
in enough detail. This may indicate lack of awareness by competent persons
as to how their interests can change, raising further doubt about the
justification of honoring advance directives. Hence, according to D &
R, using advance directives without regard to current interests is morally
Substituted judgment also risks allowing the biases of caregivers to
negate patients' current interests: as competent persons, caregivers may
be distressed by conditions they find degrading. In the case of Spring,
dialysis for a demented elderly man was stopped upon his family's request.
But the reliance on substituted judgment "ignored the possibility
that in his incompetent state he obtained sufficient countervailing pleasure
and satisfaction to make the benefits of continued life outweigh the discomforts
of the dialysis necessary to preserve that life." Also, in the case
of Hier the patient's removal of her feeding tube was seen as a
"plea for privacy and personal dignity," in spite of the fact
that those concerns are ones that only rational individuals can have.
The court also neglected the suffering she might experience from withdrawal
of her feeding tube, as well as whether she obtained some enjoyment from
her life. (Note the potential need for physical or chemical restraints
in such cases, though, in order to continue life-sustaining treatments.)
D & R advocated a modified "best interests" standard, focusing
on patients' subjective states, quality of life, or current and future
welfare, consistent with our obligations of beneficence and nonmaleficence.
"The question is not how a competent person would feel in such states,
but whether these experiences are of value to a person in the incompetent
person's situation. The important question is whether patients who cannot
experience the richness of normal life still have experiences that make
continued existence from their own perspective better than no life at
all." This approach would also permit non-treatment to occur, though,
"when the patient cannot reasonably be said to have any continued
interest in living because her level of awareness is so minimal that the
patient is unable to appreciate being alive." Thus withholding or
withdrawing life-sustaining treatments could be justified even in cases
where the treatment itself would not cause suffering.
B. Nancy Rhoden (1990):
Rhoden objected to the exclusive focus on present best interests advocated
by D & R, primarily because it undermines respect for the preferences
of previously competent persons as reflected in advance directives and
the values they expressed to loved ones. "Under a present-oriented
view, we would respect choice as long as the person was competent, but
then, once his powers dimmed, we would rethink it if treatment was still
potentially efficacious. . . . [T]hen the competent patient's 'right'
to refuse treatment will be upheld only for the [period in which] she
remains competent. After that, the treatment decision will be made on
the basis of the objectively assessed present interests of the incompetent.
Taken to an extreme, this could mean that a Jehovah's Witness could refuse
a blood transfusion until he 'bled out' and became incompetent, after
which he could be transfused." Or surgery might be performed on a
Christian Scientist to preserve his incompetent self, despite his directive
(consistent with his religion) when previously competent to refuse all
Against D & R's criticism of advance directives and substituted judgment,
Rhoden claimed that were obliged to uphold the wishes of previously
competent persons even when they conflict with the interests of their
presently incompetent selves. "The competent person's primacy derives
from his status as moral agent. Moral agency is inherently future-directed,
and the future may, unfortunately, encompass one's incompetency. Prior
directives are the tools for projecting one's moral and spiritual values
into the future." For an incompetent person, former values are still
important because they reflect autonomous choices. "Something is
wrong . . . when we treat formerly competent patients as if they were
never competent. Someone who makes a prior directive sees herself as the
unified subject of a human life. She sees her concern for her body, her
goals, or her family as transcending her incapacity."
A person who creates a living will or otherwise communicates her preferences,
goals and values to her family or friends "imposes upon others a
prima facie duty to honor" those choices. "Viewing the patient
only in the present divides her from her history, her values, and her
relationships--from all those things that made her a moral agent. . .
. If a person has stated, 'Treat me, when incompetent, as if my competent
values still hold,' respect for persons demands that we do so." Our
duties can be "backward-looking," fulfilled or violated in relation
to persons as they were. Thus unlike D & R, Rhoden saw an important
similarity between living wills and testamentary wills or bequests. Breaching
either one can be seen as breaking promises toward previously competent
However, in the absence of living wills there could still be a need to
guard against family biases creeping into substituted judgment, especially
when they conflict with apparent current interests (a point noted by D
& R). And even Rhoden seemed to think that there are some preferences
of competent patients that should not be honored, such as a hypothetical
case she mentions where an intellectual demands not to be treated if he
becomes even slightly impaired mentally. But then, Rhoden would add that
we should never promise to honor such a demand in the first place.
Unfortunately some advance directives focus exclusively on terminal illness
and permanent unconsciousness, ignoring matters of quality of life for
conscious but incompetent patients who may not be terminally ill. Competent
patients should be encouraged to write advance directives that reflect
a nuanced understanding of the choices that their caregivers might face
if they become incompetent (King 1996). Patients might be asked, "If
you reach a point when youre no longer able to care for yourself
or tell us what you want, yet you still seem to enjoy living, should we
keep you alive even if the treatments cause you some discomfort? Would
you want to be on a respirator or feeding tube if it allowed you to remain
in conscious contact with your family and friends?"
An expression of values and preferences under such conditions should
reduce the likelihood of a conflict between previously competent persons'
stated wishes and assessments of their best interests by proxies and caregivers.
D & R have helpfully reminded us that we should avoid assuming that
the loss of our capacity to reason or communicate would necessarily result
in a miserable existence: as a demented person, we may no longer care
about many abilities that we now treasure as essential to our self-identity
and self-respect, and so would not perceive their loss as tragic or undignified.
But as Rhoden argued, if we promise to uphold the values and preferences
of rational and informed persons, then we must keep those promises when
they become incompetent, even if we think it would be better for them
if we chose otherwise.
Human beings can only sensibly said to be persons to the extent that
they are capable of conscious experience. That capacity first emerges
in the human fetus between 20 and 32 weeks gestation, and can be irreversibly
lost if the cerebral cortex permanently stops working, even if the brainstem
continues to function with respirator support. Thus, early abortions,
experiments on human embryos and early fetuses, and withdrawal of feeding
tubes from PVS individuals do not in themselves represent violations of
the rights of persons.
Although rationality is usually seen to be the sine qua non of
personhood, granting the highest degree of moral status only to rational
beings would entail morally unacceptable implications for infants, the
demented, and severely retarded people. Human beings with the capacity
for consciousness ought to be regarded as personsmetaphysically
and morallyeven if they cant reason or communicate.
But it is also important to uphold the values and preferences of formerly
rational people after they become incompetenteven if their previously
stated wishes conflict with what caregivers later to be in their best
interestsas long as those wishes were made with an adequate appreciation
of the quality of life that incompetent people are capable of enjoying.
Rational agents should not simply assume that a demented lifewhether
their own or someone elsesis no longer worth sustaining.
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Neonate and Fetus," New England Journal of Medicine, November
Barinaga, Marcia, 2000. "Fetal Neuron Grafts Pave the Way for Stem
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Chadwick, Derek and Jamie Goode, eds., 2000. Neural Transplantation
in Neurodegenerative Disease: Current Status and New Directions.
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This article is copyright by David L. Perry. Please do not quote from
or reproduce it without his express permission. None of his views should
necessarily be construed to represent those of the Markkula Center for
Applied Ethics or Santa Clara University.
David Perry is the Director of Ethics Programs, Markkula Center for
Applied Ethics, and Lecturer in Religious Studies.
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