关于"脑死亡"立法科学与伦理的纷争

我国对脑死亡的研究起步于 2 0世纪 80年代。1980年 ,学者李德祥提出脑死亡应是全脑死亡 ,从而克服了大脑死、脑干死等脑的部分死亡等同于脑死亡的缺陷[1] 。中国医学界开始讨论建立我国自己的脑死亡标准。 1997年在全国第七届卫生立法讲习班上 ,有 2 0多位国内的知名专家 ,联名提出关于脑死亡标准的立法问题。 1999年中华医学会组织了脑死亡标准 (草案 )专家研讨会 ,并提出了脑死亡诊断标准[2 ] 。同年 ,解放军总医院的人大代表李炎唐教授在全国人大会议上提交了关于脑死亡及器官移植的立法提案 ,促使我国脑死亡立法的步伐越来越快。2 0 0 …     

中国器官捐献立法完善的若干意见

《人体器官移植条例》颁布已有十余载,虽解决了器官捐献无法可依的问题,但因其内容不完备及严格的条件限制,已成为我国器官捐献发展的障碍。从人体器官捐献存在的主要问题及立法现状入手,借鉴国外器官捐献立法现状,论述该条例中器官捐献内容存在的问题,提出完善我国器官捐献的三条建议:(1)出台专门的《人体器官捐献法》;(2)从扩大活体器官捐献供体范围、适当放宽遗体器官捐献条件、建立器官捐献的有效激励机制、规范器官分配原则6个方面完善《人体器官移植条例》;(3)明确脑死亡标准,确立脑死亡立法。     

脑死亡判定的伦理学及实践中的几个问题

脑死亡是临床实践中的常见问题,随着当代医学科学的发展,经过临床严格的判定程序,患者脑死亡即生物学死亡已经成为科学标准,但由于我国在脑死亡立法、公众认知以及医生的各种心理考量,在我国开展脑死亡的判定还存在许多障碍。我们结合自己在判定患者脑死亡后的医患心理变化,以及存在的一些问题,期望引起更多的医学、法学和社会学家关注,使得临床医生对脑死亡的判定,顺应科学发展又能符合患者及其家属的最大利益。     

脑死亡判定的伦理学及实践中的几个问题

脑死亡是临床实践中的常见问题.随着当代医学科学的发展,经过临床严格的判定程序,患者脑死亡即生物学死亡已经成为科学标准,但由于我国在脑死亡立法、公众认知以及医生的各种心理考量,在我国开展脑死亡的判定还存在许多障碍.我们结合自己在判定患者脑死亡后的医患心理变化,以及存在的一些问题,期望引起更多的医学、法学和社会学家关注,使得临床医生对脑死亡的判定,顺应科学发展又能符合患者及其家属的最大利益.     

脑死亡立法的若干法律问题探讨

因为关系到基本人权,脑死亡立法应当由全国人民代表大会立法通过。制定科学的脑死亡标准和严谨的脑死亡判定程序是保障其接近正义的必需。在脑死亡判定方面应充分地保障患者生命权、自主选择权,尊重患者以及家属的知情同意权,保障患者的基本权利是脑死亡立法的核心所在。器官移植不是脑死亡立法的理由。     

刑法视域下的人体器官移植

为有效规制我国的人体器官移植犯罪活动,保障公民的生命健康权,维护医疗卫生管理秩序,从我国器官移植的立法现状入手,运用调查法、文献研究法,探讨了我国器官移植刑事立法中的困惑,包括脑死亡标准的确立、刑事处罚范围较窄、法定刑的配置尚待改善几方面。针对该缺陷从刑法视角有效规制人体器官移植方面提出确立脑死亡的死亡标准作为司法认定标准、增设相关器官移植犯罪罪名、完善人体器官移植犯罪的立法模式等建议,促进我国器官移植的立法发展。     

脑死亡立法的艰难与中国传统文化

因中国传统伦理文化对人们意识观念的深刻影响导致中国脑死亡立法步履艰难。从中国传统文化视角分析中国的脑死亡及相关伦理问题,提出中国脑死亡诊断标准的制定必须充分考虑民族心理感受,要立足于民族文化理性地探索“中国脑死亡”。     

死亡的判定

死亡是生命的终结.死亡判定的标准在历史上经历了一个逐步深化的过程.1959年2位法国医学家首先提出了脑死亡的概念.但是什么是脑死亡,以及如何判定脑死亡是一个有争议的问题.1981年美国总统委员会提出了一个脑死亡的判定指标体系,并被一些国家立法接受.回顾了对死亡判定认识的历史过程.     

脑死亡与心脏移植及其若干伦理问题

脑死亡与心脏移植及其若干伦理问题上海第二医科大学附属瑞金医院博士生（２０００２５）蔡煦我国仍未接受脑死亡这一重要的科学概念,许多学者呼吁摒弃传统的“心跳停止”来判断死亡的旧观点,接受现代科学的“脑死亡等于机体整体死亡”的新概念￣［１］。这在积极开展器...     

器官移植道德反思——兼评器官商品化

自从器官移植技术出现以来,器官移植供体的缺乏就成为了制约其发展的瓶颈问题,而脑死亡临床诊断标准的出台为解决这个问题指明了方向。如何为脑死亡立法和器官移植立法寻求合理的道德支持是立足点,也是现代生命伦理学的热点与难点之一。以器官移植的供体来源短缺为切入点,提出了解决有关立法和寻求新的道德资源支持的一些思路与方向,坚决反对通过器官商品化来解决移植供体短缺的问题。     

The Ohio study in light of national data and clinical experience

The Siminoff, Burant, and Youngner study in Ohio is strikingly consistent with data from a national study. Both suggest that there might be significant public acceptance of future policies that violate the dead donor rule, or that further extend the boundary between life and death to include brain-damaged patients short of "brain death." Experience with donation suggests that many individuals would donate their loved ones' organs when they have concluded that the brain injury is not survivable, even if all the criteria for "brain death" are not met. It would be very helpful to have research on those who have gone through the real-life clinical situation. Based on the findings of this study and the increasing demand for organs, it may be appropriate for public policy to allow for ways to increase organ procurement from individuals who are not fully "brain dead" beyond the current method of procurement after cardiac death, but any change in this area should go slowly and with significant public input.     

Irreversible cerebral function loss (so-called brain death). Further experiences in diagnostic procedures

Analyzing international 15 years experiences the authors characterize the present situation of knowledges and practical possibilities concerning brain death diagnostics. It must be differentiated between generally accepted obliging criterions and the remaining space of responcibility of the neurologist, who is acting as a member of a brain death commission. In this frame procedures have to be chosen, which allow to diagnosticate without any doubt and as early as possible. Further developmental possibilities are shown.     

Clarifying the paradigm for the ethics of donation and transplantation: Was 'dead' really so clear before organ donation?

Recent commentaries by Verheijde et al, Evans and Potts suggesting that donation after cardiac death practices routinely violate the dead donor rule are based on flawed presumptions. Cell biology, cardiopulmonary resuscitation, critical care life support technologies, donation and transplantation continue to inform concepts of life and death. The impact of oxygen deprivation to cells, organs and the brain is discussed in relation to death as a biological transition. In the face of advancing organ support and replacement technologies, the reversibility of cardiac arrest is now purely related to the context in which it occurs, in association to the availability and application of support systems to maintain oxygenated circulation. The 'complete and irreversible' lexicon commonly used in death discussions and legal statutes are ambiguous, indefinable and should be replaced by accurate terms. Criticism of controlled DCD on the basis of violating the dead donor rule, where autoresuscitation has not been described beyond 2 minutes, in which life support is withdrawn and CPR is not provided, is not valid. However, any post mortem intervention that re-establishes brain blood flow should be prohibited. In comparison to traditional practice, organ donation has forced the clarification of the diagnostic criteria for death and improved the rigour of the determinations.     

Neuroscience and Brain Death Controversies: The Elephant in the Room

The conception and the determination of brain death continue to raise scientific, legal, philosophical, and religious controversies. While both the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research in 1981 and the President’s Council on Bioethics in 2008 committed to a biological definition of death as the basis for the whole-brain death criteria, contemporary neuroscientific findings augment the concerns about the validity of this biological definition. Neuroscientific evidentiary findings, however, have not yet permeated discussions about brain death. These findings have critical relevance (scientifically, medically, legally, morally, and religiously) because they indicate that some core assumptions about brain death are demonstrably incorrect, while others lack sufficient evidential support. If behavioral unresponsiveness does not equate to unconsciousness, then the philosophical underpinning of the definition based on loss of capacity for consciousness as well as the criteria, and tests in brain death determination are incongruent with empirical evidence. Thus, the primary claim that brain death equates to biological death has then been de facto falsified. This conclusion has profound philosophical, religious, and legal implications that should compel respective authorities to (1) reassess the philosophical rationale for the definition of death, (2) initiate a critical reappraisal of the presumed alignment of brain death with the theological definition of death in Abrahamic faith traditions, and (3) enact new legislation ratifying religious exemption to death determination by neurologic criteria.     

Personal identity and brain death: a critical response

The authors contend that there are logical inconsistencies in a theory put forth by Michael Green and Daniel Wikler ("Brain death and personal identity," Philosophy and Public Affairs 1980 Winter; 9(2): 105-133) to justify the brain death concept of death. Green and Wikler had asserted that individuals cease to exist and are dead when the criteria for continuity in their personal identity are not met. Having argued that the theory of personal identity is misguided, Agich and Jones suggest that further research into the ontological foundation of brain death concepts should begin, not by rejecting medical or moral considerations, but by carefully defining the main competing concepts of brain death as brain stem death, cerebral death, death of the brain as a whole, and whole brain death, and then by relating these concepts to the ontological conditions for being a live individual or person.     

The ethics of donation and transplantation: are definitions of death being distorted for organ transplantation?

A recent commentary defends 1) the concept of 'brain arrest' to explain what brain death is, and 2) the concept that death occurs at 2–5 minutes after absent circulation. I suggest that both these claims are flawed. Brain arrest is said to threaten life, and lead to death by causing a secondary respiratory then cardiac arrest. It is further claimed that ventilation only interrupts this way that brain arrest leads to death. These statements imply that brain arrest is not death itself. Brain death is a devastating state that leads to death when intensive care, which replaces some of the brain's vital functions such as breathing, is withdrawn and circulation stops resulting in irreversible loss of integration of the organism. Circulatory death is said to occur at 2–5 minutes after absent circulation because, in the context of DCD, the intent is to not attempt reversal of the absent circulation. No defense of this weak construal of irreversible loss of circulation is given. This means that paents in identical physiologic states are dead (in the DCD context) or alive (in the resuscitation context); the current state of death (at 2–5 minutes) is contingent on a future event (whether there will be resuscitation) suggesting backward causation; and the commonly used meaning of irreversible as 'not capable of being reversed' is abandoned. The literature supporting the claim that autoresuscitation does not occur in the context of no cardiopulmonary resuscitation is shown to be very limited. Several cases of autoresuscitation are summarized, suggesting that the claim that these cases are not applicable to the current debate may be premature. I suggest that brain dead and DCD donors are not dead; whether organs can be harvested before death from these patients whose prognosis is death should be debated urgently.     

脑死与放弃治疗

符合医学标准又为亲属认定已死亡者,理应放弃治疗;符合脑死亡标准,应说服亲属同意作放弃治疗决策;对已确无救治希望,或虽经抢救治疗必然发生植物生存状态的极重病例,或已是植物生存状态者,也应作出放弃治疗的决策,除遵循医学原则和生命的价值、伦理原则外,要充分尊重病重的意志。放弃治疗的决策还应考虑到亲属的心理承受问题。     

Is the Near-Death Experience Only N-Methyl-D-Aspartate Blocking?

Karl Jansen's interesting hypothesis that near-death experiences (NDEs) result from blockade of the N-methyl-D-aspartate receptor has several weaknesses. Some NDEs occur to individuals who are neither near death nor experiencing any event likely to upset cerebral physiology as Jansen proposed; thus his hypothesis applies only to a subset of NDEs that occur in catastrophic circumstances. For that subset, the clarity of NDEs and the clear memory for the experience afterward are inconsistent with compromised cerebral function. Jansen's analogy between NDEs and ketamine-induced hallucinations is weakened by the fact that most ketamine users do not believe the events they perceived really happened. Temporal lobe seizures do not resemble NDEs as Jansen postulated; they are confusional, rarely ecstatic, and never clear, as are NDEs, nor are they remembered afterward. Jansen's hypothesis assumes the standard scientific view that brain processes are entirely responsible for subjective experience; however, NDEs suggest that that concept of the mind may be too limited, and that in fact personal experience may continue beyond death of the brain.     

Death and organ procurement: public beliefs and attitudes

Although "brain death" and the dead donor rule--i.e., patients must not be killed by organ retrieval--have been clinically and legally accepted in the U.S. as prerequisites to organ removal, there is little data about public attitudes and beliefs concerning these matters. To examine the public attitudes and beliefs about the determination of death and its relationship to organ transplantation, 1351 Ohio residents >18 years were randomly selected and surveyed using random digit dialing (RDD) sample frames. The RDD telephone survey was conducted using computer-assisted telephone interviews. The survey instrument was developed from information provided by 12 focus groups and a pilot study of the questionnaire. Three scenarios based on hypothetical patients were presented: "brain dead," in a coma, or in a persistent vegetative state (PVS). Respondents provided personal assessments of whether the patient in each scenario was dead and their willingness to donate that patient's organs in these circumstances. More than 98 percent of respondents had heard of the term "brain death," but only one-third (33.7%) believed that someone who was "brain dead" was legally dead. The majority of respondents (86.2%) identified the "brain dead" patient in the first scenario as dead, 57.2 percent identified the patient in a coma as dead (Scenario 2), and 34.1 percent identified the patient in a PVS as dead (Scenario 3). Nearly one-third (33.5%) were willing to donate the organs of patients they classified as alive for at least one scenario, in seeming violation of the dead donor rule. Most respondents were not willing to violate the dead donor rule, although a substantial minority was. However, the majority of respondents were unaware, misinformed, or held beliefs there were not congruent with current definitions of "brain death." This study highlights the need for more public dialogue and education about "brain death" and organ donation.