Reconsidering Consent on Brain Death Examination

Abstract

By medical definition, brain death refers to ”the irreversible loss of all functions of the brain” (Goila and Pawar, 2009, 8). Although brain death has been under US legislative approval since 1981, heightened legal disputes and criticism from bioethicists have brought renewed interest in brain death examination (Starr et al., 2024). Some individuals claim that the current protocol for conducting brain death examination has been developed incautiously, driven by an exaggeration of practical benefits without sufficient consideration of ethical implications. In light of these issues, we argue that performing brain death examination without consent is unethical. To support our assertion, we investigate the faulty application of implied consent, potential medical inaccuracies of the procedure, and the need to problematize taking epistemic authority as an absolute judgment. The danger of utilitarian bias and the dead donor rule are analyzed to refute primary rationales for conducting brain death examinations without consent. As a culmination of these findings, we proactively address how consent can be ethically obtained with respect to the affected patient and family. Ultimately, we argue that establishing a policy of consent will ensure that a patient’s autonomy and well-being are protected in an era of rapidly developing medical technology and policy.