“There is an ambiguity, I say, about man’s creativity. It was imposed upon him as a task of creation, yet involves at the same time a blasphemous denial of his creatureliness.”
—HELMUT THIELICKE, Theologian, 1969
Henry Beecher delivered the Fifth Bernard Eliasburg Memorial Lecture at Mount Sinai Hospital in New York City on December 6, 1967. His remarks, reported on the front page of The New York Times, were entitled “The Right to Be Let Alone; The Right to Die.”1 The subtitle, “Problems Created by the Hopelessly Unconscious Patient,” indicates that this talk was an elaboration of his Human Subjects presentation barely a month earlier—the presentation that served as the springboard for the Ad Hoc Committee and reflected the thoughts likely on his mind when he wrote to Curran about “RIGHT(s)” the prior June. The presentation provided a map for the work of the Committee itself. Sections from it were repeated verbatim in early drafts of the Report and in an article Beecher published on this topic in the New England Journal of Medicine just weeks prior to publication of the Committee Report.2
Beecher opened by describing a visit he made to a hospital as a guest on rounds: “We were told about a man on their wards who had been hopelessly unconscious for more than a year. He got pneumonia. The question was, should he be treated? He was.” Beecher disapproved, and he calculated the costs and bed days occupied by this patient without benefit:
Remember, this man was hopelessly unconscious. Are we obliged to treat such an individual when he can be kept “alive” only by extraordinary means? Pope Pius XII answered that question plainly, clearly: “No, you are not,” he said.3
Beecher’s surviving Eliasburg manuscript drew clear connections between his decades of writing in human experimentation ethics and his interest in brain death. It included a first sketch of criteria, based on Schwab’s research, which would also appear in the first full draft of the Report, dated April 11. The April 11 draft “Discussion” section, which laid out the justification for brain death, was taken almost entirely from the Eliasburg manuscript as well (Figure 2.1).
Returning to his visit on hospital rounds, Beecher noted that:
Figure 2.1 Eliasburg Manuscript Title Page Courtesy of The Harvard Medical Library in the Francis A. Countway Library of Medicine, Boston, MA.
It costs about $30,000 per year, probably more, to maintain such an individual. It is not, I insist, crass to speak of money in such a situation: Money is human life. If we had more money, we could save more lives. Remember, this man was hopelessly unconscious … Are we obliged to treat such an individual when he can be kept “alive” only by extraordinary means? … In the meantime … the consequences of treating this hopelessly unconscious man’s pneumonia: If the average hospital stay is two weeks, then by occupying a bed for a year, such a patient has kept 26 others out of the hospital, others who are salvageable as this man is not. With the present critical shortage of hospital beds, the admission of patients, even those with cancer, may be delayed for some weeks … As medicine’s power for prevention, for healing grows … it is evident that moral and ethical problems increase in kinds and in complexity. I think it may be profitable to take a look at the underlying situation. And to do this will require an examination of some underlying propositions.3
For Beecher, who created the respiratory unit at Massachusetts General Hospital, these were real challenges. This early version of intensive care intensified the competing choices that new medical capabilities generated. The respirator salvaged life but also identified those who, because of medicine, become unsalvageable by medicine. The technology created an imperative to face up to its own consequences.
In the context of commonly held ideas about commission, therapeutics, and uncertainty—and especially in light of Beecher’s experiences with experimentation ethics—a closer look at Beecher’s “underlying propositions” can begin to address the question commonly launched at the Report: Why did seeming concern over the withdrawal of unnecessary treatment require a revised description of death? Beecher’s first step was to consider threats from medicine to the idea of privacy, an idea he described as a unique accomplishment of the twentieth century. In his Eliasburg lecture, he quoted a paper by Edward A. Shils, titled “Social Inquiry and the Autonomy of the Individual,”4 which warned of possible conflict between social science research on privacy and “self-determination … derived from our belief in the sacredness of individuality.”5 Beecher further observed a similar risk from all scientific study, arguing that “it is unthinkable to accept progress in medicine founded on deceit, on a subject defrauded of his privacy or his physical safety. Such runs counter to all that medicine stands for.”6
In the paper Beecher quoted, Shils continued:
In this, the respect for human dignity and individuality shares an historical comradeship with the freedom of scientific inquiry, which is equally precious to modern liberalism. The tension between these values, so essential to each other in so many profoundly important ways, is one of the antinomies of modern liberalism.7
Shils also noted that autonomous individuality “is constituted by the feeling of being alive, consciously and continuously, by the existence of responsiveness which is part of a highly regulated system … This mindful, self-regulating core of the life of a human organism is what is sacred.”8
So what was owed, what was “sacred” to the non-autonomous individual no longer in possession of conscious experience? It was in the context of these questions that Beecher then raised the issue of transplantation:
I mentioned Judge Cooley’s memorable phrase (1888) that there is “the right to be let alone.” … The individual’s right to be let alone conflicts with the advancement of that part of society which is based upon scientific research … These thoughts and others to come are relevant to this presentation because of the pressures to use the hopelessly unconscious patient’s tissues and organs in an attempt to help the otherwise hopelessly ill but still salvageable patient in certain experimental procedures … Certainly such individuals [in irreversible unconsciousness with no reflexes or response] have lost their ability to communicate. The question is, have they also lost their right to be let alone.9
In the Eliasburg lecture, the condition of hopeless coma and the tasks of setting limits on medical technology, autonomy, and transplantation are serially linked as problems of a similar type. These were problems of reconciling medical capabilities with obligations to persons, and Beecher addressed these problems using ideas gleaned over decades of experience in experimentation ethics practices. Experimentation provided a paradigm, a calculus, for balancing medical knowledge and medical power that could be applied to this new coma. Briefly put, for Beecher, brain death described a point at which medicine became unrecognizable experimentation.
Beecher shared a longstanding approach to ethical conduct in medicine, summarized in the last chapter, that emphasized the contingent and hypothesis-testing nature of medicine and medical knowledge and the role of the physician as, in large part, an experimenter. In June 1965 Beecher, who chaired the MGH Subcommittee on Human Studies of its Committee on Research, was appointed by medical school dean George Packer Berry to what was then called the Ad Hoc Committee on Experimentation of Harvard Medical School, which was subsequently the Harvard Faculty Standing Committee on Human Studies. A few months later Beecher was named its chairman.10 The fact that the ad hoc committee that described brain death was established as a subcommittee of Beecher’s Harvard Faculty Standing Committee on Human Studies provides one of the more tangible connections between brain death criteria and rules about human experimentation. Beecher explicitly described the brain death Report as a product of the Human Studies Committee. In an update he prepared for the medical school faculty, Beecher highlighted that Report as the Human Studies Committee’s most significant accomplishment.11
Beecher was internationally known for his interest in ethics and human experimentation. Through a series of writings, sandwiched between two books on the subject in 1958 and 1970, he offered ideas about the conduct of human experimentation that came out of his own clinical and research interest in anesthesia and the measurement of analgesic effects.12 He wrote dozens of papers as well as a seminal book examining the mechanism and effectiveness of analgesia.13 Scientific study of the effectiveness of analgesics required techniques that could measure subjective responses. One of Beecher’s contributions was to develop those techniques. He was impressed with how the placebo effect could distort any effort to measure analgesic effects, especially if the object of study was, precisely, the phenomenon of suggestion itself. Alerting the subject to the purpose, potential use, and presence of placebo, especially when studying placebo, could get in the way of a reliable understanding of the real value of often dangerous treatments—for example, painkillers—against which placebo was compared:
When a patient places himself in the hands of a physician for relief of a symptom or cure of a disease, this act implies consent to the physician to carry out all necessary means to relieve or cure. If the problem is pain … placebo will often relieve half to two-thirds of the pain relievable with an optimal dose of morphine. Surely, it would be carrying matters too far to require a dissertation to the patient on grades or degrees of relief anticipated, when real value could be expected from the use of a placebo.14
Beecher’s research also suggested that in rating the severity of a painful stimulus, the response to analgesics differed depending upon whether the subjects were sick and in pain or whether they were healthy. He concluded that the analgesic potency of morphine, or of a placebo, depended upon context. The placebo effect was most powerful in the context of pain, disability, and fear:
The greater effectiveness of the placebo where the stress and reaction are greatest, taking into account that the placebo can only act on the reaction facet, supports the view that placebos being chiefly effective as indicated when there is great significance, great reaction, do indeed act by altering the reaction.15
If informed consent could contaminate the very object of investigation, as well as the mechanism of benefit and relief, then the right balance between consent and benefit was harder to pull off than it looked. The ideal of informed consent was just that, and in light of this data Beecher shared much of the skepticism of his contemporaries. Also in line with most of his contemporaries, Beecher emphasized the value of the therapeutic/nontherapeutic distinction to guide physician conduct during research. When “experiment” more closely approached “routine” (therapeutic) care, acceptance by the patient of a physician’s care meant consent:
The central conclusion is that it is unethical and immoral to carry out potentially dangerous experiments without the subject’s knowledge and permission. Every act of a physician designed soundly to relieve or cure a given patient is experimentation of an easily justifiable kind. The patient’s placement of himself in the physician’s hands is evidence of consent. The problem becomes a knotty one when the acts of the physician are not directed toward the benefit of the patient present but towards patients in general. Such action requires explicit consent of the patient.16
Reacting to the first rule of the Nuremberg Code that the subject “should have sufficient knowledge and comprehension of the elements of the subject matter involved so as to enable him to make an understanding and enlightened decision,” Beecher wrote:
Practically, this is often quite impossible … for the complexities of essential medical research have reached the point where the full implications and possible hazards cannot always be known to anyone and are often communicable only to a few informed investigators and sometimes not even to them.17
Over the next fifteen years Beecher continued to write and speak on experimentation ethics, culminating in his 1970 book Research and the Individual,18 much of which was a patchwork of excerpts from papers published over that period.19 In this work, he tended to describe a conditional commitment to informed consent. While informed consent was expected in all cases, especially as it “increased respect for the individual by providing him with opportunities for self-determination,”20 nonetheless, “the patient who goes to a physician for relief consents, in the very act of going, to reasonable efforts to treat him … When a patient places himself in the hands of a physician for relief of a symptom … this act implies consent to the physician to carry out all necessary and acceptable means.”21
Deliberations of the Human Studies Committee at Harvard show the regular use of these ideas under Beecher’s leadership.22 For example, a Human Studies Committee “Policy for informed consent in double-blind studies” dated July 21, 1966, concluded that if such studies, which were still controversial,23 compared a generally accepted treatment against an unknown one, the study needed full informed consent subject to review by Human Studies Committee. If, however, there was no accepted treatment and the research involved testing an intervention against a placebo, the primary issue for human studies review was the adequacy with which the investigator understood and presented the ratio of risk to benefit. If there was no discernible risk, and a placebo might reasonably be expected to have equivalent value to the tested intervention, then, in ethical terms, testing this intervention was equivalent to using new but “unproven remedies in individual patients in a doctor–patient relationship. In such cases informed consent would be unnecessary and quite likely to distort the reactions of patients.” Next to this sentence in the policy, Beecher added, in his own hand, “consent having been given in the coming of the patient to the physician.”
The Human Studies Committee minutes contain the oft-repeated phrase “usual doctor–patient relationship,” which provided the substantive branching point of a decision tree of ethical decision making and scrutiny. So, in one study simple blood tests might need consent, since taking blood for the particular purpose at hand was not a practice found in the “usual doctor–patient relationship.” On the other hand, a study that used biopsy materials taken in the usual course of diagnosis of breast lesions, for example, did not need specific forms or review of informed consent. Informed consent was up to the physician. The central purpose of any medical ethic, as Beecher understood it, was to recognize when one was practicing as a physician for a patient’s benefit and when one was not. The uncertainty and contingency of much of medical knowledge underscored this.
The debate decades later over clinical equipoise—the idea that the ethical design of a research trial hinged on whether it was offering options that held “equal position” in terms of knowing which course of treatment or intervention was preferred—indicates the longevity, rather than the anachronism, of the positions Beecher and his contemporaries took and of the problems they engaged.24 That (ongoing) debate revisited the same themes reviewed in the prior chapter as to whether research and clinical responsibilities were indeed different in kind. It also underscored how faith in consent as a primary safeguard hinged on different understandings of the uncertainty of medical knowledge.25
Beecher’s position—that judgment about disclosure and therapeutic equipoise inevitably rested with physicians, rather than being more broadly shared and determined—was common for the period.26 But he joined this position with efforts to make professional practice more transparent. Beecher took public aim at colleagues for inadequate consent that failed to live up to the obligations of performing nontherapeutic research. He essentially accused leaders of a study of abnormal heart rhythms of flouting legal obligations to patients. The study’s leaders, in contrast, argued that they had explained the procedure of inducing arrhythmias, but—since it was impossible to transmit the full background and depth of information necessary to assess the risks—that they had consequently “accepted the role of guarantor of the patient’s rights and safety.” Beecher argued that despite the understanding that fully informed consent is a “chimera … the fact remains that informed consent is a goal toward which we must strive.” The “adoption of the paternalistic view … leaves … what should be a joint enterprise between subject and investigator … a monopoly of the investigator.”27
His critique broadened. Among his most famous papers is one which historian David Rothman considered a seminal event in the creation of bioethics. Titled “Ethics and Clinical Research,” the paper detailed twenty-two studies (whittled down from fifty) chosen from the medical literature; each of the chosen studies had exhibited unacceptable breaches of informed consent and additionally had posed harm to patients. Beecher kept then Harvard Medical School Dean Berry informed of this sensitive work as it progressed: “As I delve deeper into this business the story is even more shocking than earlier seemed the case.”28 Drafts were shared with Berry, but Beecher took pains to later ask that Berry return the forwarded copies and identified specific people to whom he expressly asked that Berry make no mention of the work.
This approach to consent, involving great discretion by the therapeutic physician along with great censure to breaches of the obligation of consent, was grounded in the broader legal and medical thinking about human experimentation, which emphasized the overall experimental nature of medical knowledge and distinguished therapeutic from nontherapeutic interventions.
Beecher’s public critiques and the use of large-outcome datasets reflected an interest in quality and accountability that were unusual for the time. The “exposé” in The New England Journal of Medicine was not Beecher’s first stint as a critic of colleagues. He orchestrated a study published in 1954 of surgical mortality to determine the role of anesthesia practices in such deaths. This was a uniquely large, multicenter, collaborative effort for this period and was unusual as well in its specific intent to fix responsibility for poor outcomes on physicians and to capture such outcomes through the large-scale and public use of data. One of the more controversial findings was that significant mortality was due to the use of curare, and the report led to significant changes in practice. It also generated significant controversy, given the publicity surrounding it.29
Beecher’s writings and comments about experimentation, along with the work of the Human Studies Committee itself, reveal a mix of significant caution and strong but poorly detailed affirmations of informed consent as a standard and fundamental practice. This ambiguity reflects less Beecher’s lack of analysis than his focus on avoiding harm given the presumed larger perils and responsibilities of medical decision making. Fundamentally, the struggle over informed consent that Beecher shared with many of his contemporaries was driven by the experience that harm was a more significant issue than consent, especially when consent was not considered to be a reliable guarantor of the avoidance of harm. While consent was critical, it was not the foundational safeguard. Inevitable reliance on physician judgment—given the inevitable limits of patient expertise, especially in a context of knowledge that was frequently uncertain to begin with—required much of physicians in return. As Beecher wrote in a 1966 address, “Medicine without complete integrity can become a malignant craft.”30
Beecher added to this background of consent and experiment, as well as a shared understanding of the contingency and responsibilities of managing medical facts, a particular synthesis of views about science and values. This substantially broadened his understanding of physician obligation and equipoise and provided a framework for addressing the issues raised in Eliasburg. In a closing chapter of Research and the Individual, Beecher brought together ideas (not emphasized in his prior writing on experimentation) on the relationship between science and ethics and on the distinction between treating patients as means or as ends. He cited Immanuel Kant, whose foundational work in moral philosophy of course placed means–ends distinctions at the core of moral action. He also briefly summarized controversy over naturalistic ethics; that is, the idea that science is ethics in the sense of realizing and revealing the natural relations between things for knowledge of right action.31 Beecher did not subscribe fully to that view, nor a related Darwinian ethics in which the good was revealed through the surviving natural order. Instead, he described a relationship between ethics and science whereby science essentially framed ethical choices along a reasonable range of outcomes, harms, and tradeoffs that one might expect based on a given choice, such as the option to utilize a new medical technology.
“Harm” was not abstract. It was an unavoidably slippery term and needed empirical foundation. Harm was also accompanied by the inherent problem of position: Who was best positioned to describe and decide about relevant harms? In a section entitled “Statistical Morality” in the last pages of Research and the Individual, Beecher noted how any intervention, whether regarded as “routine” or “experimental,” contained some danger and some benefit, which could only be compared in degree. “It has been calculated,” he offered in one example, “that while the effects of [routine chest X-rays in Britain in 1957] might possibly have caused as many as 20 cases of leukemia in that year, nevertheless the examinations revealed 18,000 cases of pulmonary tuberculosis, as well as thousands of other abnormalities.”32 The actual numbers mattered. The specific tradeoffs, losses, and gains were relevant. This was especially true for a medical decision involving a calculus of therapeutic benefit. In the earlier pages of Research and the Individual, Beecher had counseled against forced experimentation with risk to one individual for knowledge to benefit one million; nonetheless, at the close of this book he approvingly recalled the decision made by Allied forces in North Africa during WWII to use precious stocks of the antibiotic streptomycin to treat soldiers with venereal disease rather than the seriously wounded. In this way, “salvageable” men could go back and fight. The situation mattered and, for Beecher, the role of science in ethics was as its starting point—to describe the situation. Without informed beneficence—known within the context of practice and supported through data—ethics was blind.
Beecher specifically endorsed the work of Joseph Fletcher, moral theologian and author of Situation Ethics and a number of other works that criticized the rule-oriented focus of much of Christian moral theology. Fletcher also wrote Morals and Medicine, often cited as a prelude to the modern bioethics movement. Beecher and Fletcher socialized often and engaged in a warm and casual correspondence. From the surviving archive, Fletcher appears to be the only person, other than Committee members and Ebert, with whom Beecher shared a copy of the Report prior to publication. The two also bonded over disagreements with theologian and philosopher Paul Ramsey, who would emerge as both a critic of brain death and an intellectual godfather to key figures in the nascent bioethics movement.33
Beecher gave Fletcher the credit for his own thinking about situational ethics: “Fletcher has thoroughly convinced me, who earlier thought to the contrary, that only the end justifies the means.” Beecher reviewed Fletcher’s use of G. E. Moore’s 1903 Principia Ethica to argue that the terms such as “right” were only proxies for desired results. Given this argument, an action not justified by its results couldn’t possibly be “right.” If the ends did not justify the means, he asked, then what did? Yet Beecher’s gloss on Fletcher contained an important clarification: “This is no place for a universal: not any end will justify any means … the means must be appropriate to the ends.”34
Science could help mediate how to best judge the harms at stake—thus the reference to Kantian choice in Beecher’s Research and the Individual. Choosing between what he described as Bertrand Russell’s position—that ends are set by desire and science determines the means—and Kant’s position—that people ought only be treated as ends in themselves—Beecher settled, through Fletcher, on an intermediate view. Quoting Jacob Bronowski, who portrayed science as not mere technique but as a method for collectively drawing conclusions about facts in a way that required creativity, tolerance, and respect, Beecher wrote that this is “the scientist’s ethics, and the poet’s and every creator’s: that the end for which we work exists and is judged only by the means which we use to reach it.”35 However, at the same time, the specific ends at stake were critical. Means had to live up to their ends. Beecher’s interest in desired results and ends was quite different than a Utilitarian maximization of the good. He demonstrated a more a nuanced understanding borne from his own clinical experience that the value of some results over others came from their fit with yet other results and values. Care and clarity in how results and means were described and the reliability of underlying knowledge tools to capture them, was essential. For Beecher, medical knowledge filled this role, and had to live up to it.
This principled pragmatism, informed by a naturalistic viewpoint, proves particularly interesting and potentially valuable in the context of later criticism of brain death and uses of bioethics in the following decades, reviewed in Chapter 6. Beecher’s joining together of issues of futility, scarce resources, autonomy, transplant, and brain death in Eliasburg also made sense within this framework. Use of intrusive interventions to support a hopelessly unconscious patient without brain function was not justifiable as a means, except as an attempt to harvest organs for others. Beecher seemed more interested in determining what conditions in which life support was a justifiable means, than in promoting transplantation. Transplantation, which Beecher described as experimentation,36 is best understood not as his driving goal but as the only end that could redeem the otherwise unjustifiably experimental continuation of life support in those patients. Otherwise, the boundaries and logic of medical knowledge creation and use were violated and no longer justifiable means.
Others read Beecher, and the whole project of evaluating brain death and appropriate medical intervention, quite differently. In a December 1970 forum on brain death sponsored by the American Academy for the Advancement of Science (AAAS), Beecher acknowledged that defining death as death of the brain was an “arbitrary” choice, in words that would be a magnet for future criticism:
At whatever level we choose to call death, it is an arbitrary decision. Death of the heart. The hair still grows. Death of the brain? The heart may still beat. The need is to choose an irreversible state where the brain no longer functions. It is best to choose a level where, although the brain is dead, usefulness of other organs is still present.37
Any set of criteria was a choice. If forced to choose, he argued in his post-Fletcher mode, some choices lived up to their ends better than others.
The AAAS forum captured works in progress from members of a task force study group on defining death, convened by the newly organized Institute of Society, Ethics and the Life Sciences, of which Beecher was an early member. The Institute, later named the Hastings Center, was founded by Commonweal editor Daniel Callahan and Columbia University psychiatrist Willard Gaylin in 1969, and was the first bioethics think tank. Robert Veatch, fresh from completing his doctorate, became its first employee and would later direct the soon-to-be-created Kennedy Institute of Ethics, itself founded in 1971. Veatch was arguably the earliest and most pointed critic of brain death and of the Committee in the years after the Report appeared; he considered the Committee’s attempt to formulate any justification for brain death to be essentially irrelevant. It was not their role:
The task of defining death is not a trivial exercise in coining the meaning of the term. Rather, it is an attempt to reach an understanding of the philosophical nature of man … to leave such decision-making in the hands of scientifically trained professionals is a dangerous move.38
Veatch targeted Beecher’s acknowledgment of arbitrariness as either “capricious whim or crass expediency,” and argued that determining an essential value or meaningful aspect of the human body, which we could then identify as lost in death, was “a matter where neither technical data nor personal preferences are relevant as evidence. We are dealing with a third category … the theological, the metaphysical … the ethical.”39
Veatch’s primary objection to brain death was that death was inappropriately understood as a clinical state or scientific fact. Instead, he argued, it was a question of meaning. What does the transition to death mean? To say someone has died can mean many different things—that someone no longer respires, reasons, socially interacts, integrates homeostatic mechanisms, has consciousness or flow of bodily fluid, etc. Veatch portrayed Beecher as taking the position that death meant loss of consciousness and, further, that Beecher had not adequately argued for privileging that meaning. The criteria were not valid simply because doctors declared it. Veatch suggested that given the range of meanings possible, public policy ought to permit individuals to specify which meaning they wanted applied to them. Brain death should not be used in cases where an individual had previously specified that this was not how they wanted their death defined, or for those who left no instructions.40
Veatch understood death as a “socio-ethical” fact that was mistakenly left in the hands of medical-technical experts. When physicians made distinctions about when death occurred, they only demonstrated the intrusion of their socio-ethical biases:
Questions of what is valuable cannot be settled by an appeal to technical biological or medical evidence. We who are professionals are in danger of what I call the generalization of expertise when they make this error. Generalization of expertise is the attributing of special knowledge in all aspects of a problem area, including the ethical and philosophical aspects, to the person who has technical expertise in that area.41
In Research and the Individual, Beecher rejected a sharp separation between technical expertise and moral expertise about that technical expertise. The socio-ethical valence of medical facts might not be so readily expunged by trying to divide the labor of explanation amongst these different kinds of experts. The relationship between ends and means he arrived at with Fletcher made that separation incoherent but it also ironically acknowledged, in tandem with Veatch’s stance, that medical facts—and in particular brain death—were sociocultural facts.
Much of the ethical and humanistic critiques of medicine in the following decades repeated this pattern: an assertion by critics of the situatedness or constructedness of meaning in practice, yet the desire to nonetheless create an objective, authoritative ethical or critical position and expertise over those meanings. Having one’s objectivist authority cake, while eating a socio-relativist position too, can be tricky and would prove hard for bioethics to digest. That indigestion, seen in the later trajectory of the bioethical critique of brain death described in Chapter Six, draws attention to other solutions to manage complex medical facts, and thus potential alternative historical trajectories, from which to learn. Beecher and Schwab viewed the moral import of these facts as unavoidably part of their contingent nature, such that internal expertise and deep experience in their clinical context was a critical source of value and understanding.
Other early critics focused on the transplantation issue. Paul Ramsey’s Patient as Person has often been considered with Fletcher’s Medicine and Morals as a seminal work of modern bioethics, in that they both argued for patient autonomy. Ramsey lent his voice, as well, in the AAAS meeting and Institute Task Force. There, he primarily argued that the purpose of brain death criteria—to promote organ transplantation—was not moral, either in method or result.
At a different, earlier AAAS meeting on human experimentation, philosopher Hans Jonas presented a paper in response to Beecher’s statement that society could ill afford to discard needed organs. Jonas’ rejoinder was later recalled as one of the opening shots of the new presence of the philosopher in medicine, and as the establishment of a philosophical footing for the discussion of experimentation ethics.42 Jonas disputed any interest on the part of “society”:
“Discarding” implies proprietary rights—nobody can discard what does not belong to him in the first place. Does society then own my body? “Salvaging” implies the same and, moreover, a use-value to the owner. Is the life-extension of certain individuals then a public interest?43
Jonas felt it was not. He criticized common justifications put forward for new medical technologies, because these justifications overshadowed the dignity and autonomy of individuals—and their ability to generate personal or particular values—by invoking the social benefits of these presumed advances. Jonas argued that “the destination of research is essentially melioristic. It does not serve preservation of the existing good from which I profit myself and to which I am obligated.”44 The capability to reduce harm and expand benefit for some did not, for Jonas, come with authority to make claims on others:
What is it that society can or cannot afford … It surely can afford to lose numbers through death, it is built on the balance of death and birth decreed by the order of life … Society, in a subtler sense, cannot “afford” a single miscarriage of justice.45
Beecher agreed with this. But, as he argued directly here and in other forums, echoing earlier medical literature, Jonas then left no clear path as to how to progress—how to make new choices and seek innovation. The old problem of how medicine could or should continuously improve—a problem that drove appeals to values such as ordinariness, omission, therapeutic ends, and dispute over the purposes of consent—remained.
These exchanges captured core claims of the bioethics movement that followed. First among these was the claim that a wide array of philosophical and moral meanings were inappropriately assigned to medical categories, purposes, and areas of expertise. Death, according to this framework, was not a clear physiological process but a moral category made coherent by philosophy. Second, and relatedly, was a privileging of individual autonomy and choice in defining the ends and purposes of medicine. Diagnosis of brain death was a problem of misplaced expertise, and transplantation potentially sacrificed personal liberty for medical gain or discretion. Brain death, therefore, risked the individual in favor of society’s medically driven search for progress.
Of course, lots of autonomous individuals would opt for lifesaving transplantation, and other progress. Beecher responded directly to Jonas, and both in print and in the marginalia of his copies of Ramsey’s and Veatch’s papers from the AAAS brain death panel. Beecher saw Jonas as “rationalizing people into the grave”:
The definition of brain death is not difficult. Isn’t there something ominous, sinister, about a philosophy, a theology, that unquestionably exacts lives for the sake of an ill-defined philosophical principle?.46
Given the concerns he expressed in Eliasburg, and his views regarding the dangers of societal interests in experimentation ethics, Beecher likely felt that he needed no lecture from Jonas on the subject. When discussing Jonas’s views, he would repeat his own shared aversion for posing society’s betterment as a justification for medical research or treatment.47
Beecher also responded to the accusation that the definition of brain death was either morally presumptuous or morally bankrupt because of its connection to transplant. “The new definition will lead to saving countless lives. Isn’t that ‘morally’ desirable? Denial will lead to death,” he wrote in the margins of Ramsey’s paper, which criticized the moral flaws of brain death’s definition due to its supposed agenda of furthering transplantation.48 Beecher was careful to underscore that these benefits, and any enhanced use of transplant, were “merely a consequence of the new definition.”49 He also held to his position that, irrespective of transplant, the moral consequences of brain death extended more broadly, arguing that “if beds are not cleared of corpses, cancer patients will be denied hospital admission.”50 For Beecher, these were moral consequences of brain death, not moral arguments for it.
But Beecher didn’t directly answer Jonas’ challenge as to the presumed value and inevitability of progress itself—a powerful challenge to the conduct of medical practice and the rationale for physician beneficence, but one that eventually faded as a focus of bioethics. The role of “calculator of suffering” ostensibly cast the physician as a gatekeeper who determined what types of progress could be considered worthy. Beecher and colleagues, as we have seen, did wrestle with this predicament—but Jonas and others argued to re-describe it altogether, to shift this predicament from doctor to patient. It was no longer their predicament as doctors: it was ours, as patients.
Wrestling over how to manage progress in medicine became less central to brain death debates, and arguably to bioethics. This mirrored a larger failure of consensus over the right tools for the management of medical progress on a broader scale, as evident in the acceleration of per capita costs in the US health care system relative to other systems, along with the decline in relative health gains that occurred in the United States in subsequent decades. Beecher’s uses of standardization and pragmatism appear as responses precisely to this challenge of how to link medical knowledge with credible progress, and has affinities with other approaches that emerged in the latter twentieth and early twenty-first centuries to define health care quality and effectiveness. Notable among these are efforts that emerged in the 1980s to apply quality-improvement methods developed in the industrial sector to the field of health care (discussed further in Chapter Six). Along with other attempts to find science-driven strategies to manage medical facts (and in doing so to address social values and choice), these kinds of developments are important to discern and draw upon as a potentially distinct historical narrative of sourcing solutions to manage the progress and improvement of medicine through restructuring how knowledge is used by medicine. That framing narrative may prove more valuable for exploring strategies to manage the value-dimensions of medicine than the bioethics narrative has, as will be argued further in this book.
Beecher and Jonas actually had much to say to each other in a dialogue about social value, medical knowledge, and ambivalence about technological progress. Their specific conversation was short-lived, as was the limited degree to which their sort of exchange of ideas later drove bioethics in general and its approach to brain death in particular. Instead, the focus of the following decades of the brain death critique would lie not in what Daniel Callahan described as cultural questions about the trajectory of our technological society, but in questions about the nature of individual decisionmaking, autonomy, choice, and their conceptual features.51
In the decades following Beecher’s career, vying concepts of death and personhood indeed became the focus of debate, falling within a range of views that could be located somewhere between Ramsey’s position—that nature held moral constraints that could not be breached—and Veatch’s position that describing nature’s limits was often an excuse for acceding to medicine’s subjective values.
More specifically, Ramsey questioned whether the Committee’s argument for the acceptance of brain death rested on the natural death of the organism (“biological” death), the cessation of consciousness or, as Schwab concluded, both. Beecher cited Black’s Law Dictionary definition, according to which “death occurs precisely when life ceases and does not occur until the heart stops beating and respiration ends. Death is not a continuous event and is an event that takes place at a precise time.” He then considered a contrasting possibility:
… whether one believes that the individual’s personality, his conscious life, his uniqueness, his capacity for remembering, judging, reasoning, acting, enjoying, worrying, and so on, reside in the brain, and that when the brain no longer functions the individual is dead. We have proof that these and other functions reside in the brain … It seems clear that when the brain no longer functions, when it is destroyed, so also is the individual destroyed; he no longer exists as a person: he is dead.52
Over fifteen years later, Veatch quoted these lines in order to underscore the point that Beecher and the Report really championed the conceptual position that loss of certain cognitive functions meant the death of the person but incorrectly presented that ethical or philosophical point of view as a medical fact.53 Beecher instead had a more subtle view, understanding that the truth of brain death did not rest simply on either end of this conceptual spectrum. Schwab’s development of the criteria, explored in subsequent chapters, also took place outside of this simple equation of unconsciousness, loss of personhood, and death. The Report itself defines “brain death,” but also describes a kind of coma that involved much more than irreversible loss of remembering, judging, reasoning, or acting. In his comments to Beecher at AAAS, Veatch wrote: “I believe that Dr. Beecher sees the meaning of death as the loss of consciousness.” On his copy of Veach’s paper, Beecher responded, “no, loss of consciousness is the result of death.” Schwab’s experience applying brain death criteria to comatose patients with the use of EEG (also explored in following chapters), and his familiarity with a substantial body of EEG-based research on consciousness through the mid-twentieth century, reinforce the empirical incoherence with which Veatch’s conceptual claims appear to have struck Beecher. In his remarks, Veatch argued that identifying the meaning of death requires deciding whether it is a process or an event; next to this passage, Beecher responded: “Both.”54 Veatch also described Beecher as having opted for consciousness as the significant value in defining life. Here, Beecher circled the word “significant” and wrote next to it “the ability to function.” At the bottom of the page, he added: “How separate a functioning brain from the functions it performs?”55 In his comments, irreversible loss of consciousness was considered the result of death, not the cause of it (irreversible loss of consciousness could occur in a non–brain dead patient). Consciousness, here, is a necessary but not sufficient property that must be lost for death to occur. But, as captured in Beecher’s reference to brain functioning, consciousness is also one of several signals of the status of the brain, a neurologic symptom that Beecher accuses Veatch of failing to understand in his conceptual treatment of loss of consciousness. And where Veatch, in his AAAS response, referred to the lack of attention given to the meaning of death, Beecher wrote, “meaning and consequence are, I think, inseparable in a pragmatic society: ‘things are what their results are.’ ”56 Further on he added: “one would never dare turn off resp. of a living patient.”57
In his report to the medical school faculty regarding the Ad Hoc Committee work as a product of the Human Studies Committee—perhaps reflecting what he saw as an emerging cognitive dissonance over the significance and use of the fact of irreversible loss of consciousness—Beecher noted, “I believed we were perhaps too timorous in calling our effort ‘A Definition of Irreversible Coma’ and not calling it brain death. I think we now should stress the fact that death of the brain is death indeed, even though the heart continues to beat.”58 But rather than titling the Report “brain death”, it is Beecher’s simple answer—“Both”—that more specifically reflects the concrete problem created by the conditions of death before dying, in which the physiologies of cardiopulmonary and brain function were separated and suspended so as to be able to fail in reverse order. This new kind of permanent loss of consciousness was a complex fact that included the neurologic state of a nonfunctioning brain—a necessary but not sufficient condition for the death of persons—as well as cardiopulmonary functions that were removed from any context of coherent medical action or survivability.
An important debate over medical knowledge was percolating here. Whatever the moral valences or conceptual creativity it inspired, this new body had to be managed in its functional concreteness. Through comments on manuscript marginalia, conference proceedings, and published papers, Beecher directly challenged Veatch’s portrayal of the kinds of expertise and experiences required to define death. Alongside Veatch’s description and indictment of medicine’s faulty “generalization of expertise,” we read Beecher’s handwritten reply that “the philosopher and theologian have entered biology and make revealing statements. I would never, never reverse the process!”59 Where Veatch criticized medical experts for deciding social policies, Beecher wrote: “Is the philosopher or theologian better equipped for this role?”60 Elsewhere, Beecher noted that “these arguments, statements, etc. reveal how irrelevant ‘philosophy’ of this kind is to intellectual life.”61
These manuscripts, letters, and papers further underscore the pragmatism or, as Beecher put it, the weighing of ends and means derived from situational ethics, which he ascribed to his friend Fletcher:
In this world there are a number of imponderables most the least of which is situation ethics, so eloquently described by Professor Joseph Fletcher … If I may be permitted an over-simplification, it is a world where circumstances alter cases, a pragmatic world where things are what their results are. I realize I can easily get myself into hot water with the philosophers.62
This approach fit well with his work on experimentation and his understanding of the realities of choice and calculus at the root of all medical decision making. By working from within the choices and testable circumstances at stake, the criteria captured both the adequate necessity of unconsciousness and the adequate sufficiency of biological disintegration; further, the criteria reflected how when these conditions, occurring together, were not recognized as death, the continuation of support was no longer recognizable as medicine. Veatch felt that if defining death indeed involved choices, the task instead required unique expertise in clarifying conceptual meanings and was not the business of physicians. For Beecher the fact of choice was inescapable, a reflection of how death was biologically imprecise—a truth that held even in the heart-lung criteria and in most medical knowledge. The respirator-bound patient created conditions whereby a brain that could no longer function was dead; describing that point did not and could not rely on metaphysical conclusions or conceptual analysis. Nonsurvivability and permanent unconsciousness as markers of death were not concepts to be argued but experiences and practices grounded as coherent accounts within medical practice, experimentation, and use.
Beecher was clearer in these post-Report debates, more so than in the Report itself, that the irreversible coma described in the criteria was a description of death, not of futility that permitted removing care. While critics like Ramsey and Veatch were focused on describing the contours of acceptable withdrawal, Beecher insisted in marginal notes to their written comments that such elaboration was fine but not his point. Responding to Ramsey who wrote asking why the “terminal patient” lost a claim to medical attention, Beecher circled “terminal patient” and wrote: “Confusion, confusion! The terminal patient is not dead … Thus the new definition merely clears [unreadable] and supports this necessary act.”63
Beecher and Veatch, along with other early critics of brain death, were arguing as much about fundamentally different views of ethics as they were about brain death. Veatch’s concern about the “generalization of expertise” formed the core of his doctoral dissertation at Harvard, which he had only recently completed when he debated with Beecher at AAAS. Later published as Value Freedom in Science and Technology, Veatch’s work combined two prominent streams of thought at the time: a medical sociology derived from the thinking of Talcott Parsons, which focused on revealing the structured roles at work in medical encounters, and the enthusiasm among moral philosophers for establishing the objectivity of ethical reasoning.
Veatch detailed how when doctors and patients met, each made decisions or interpreted information based on various factors that he diagrammed with boxes and lines to portray a “Medical Action System.” Physician and patient were illustrated within their “organic,” “psychological,” “social,” and “cultural” contexts, each with another link to either a profession or other subculture (e.g., family). Each of those links was, in turn, similarly embedded in further boxed categories. Doctor and patient resided in these variously constructed and variously connected roles and boxes when they met. They would evaluate a given decision, such as whether to use an oral contraceptive pill (OCP), differently and with different filters and “lines” of accountability and reference. Veatch’s point with these diagrams was that there existed a sociological, analytical approach to the interaction of doctor and patient, explaining how their decisions were predicated on their respective diagrammed social roles and connections as illustrated by the boxes they were in or to which they were linked. This relativization of medical judgments and decisions was at the same time an objectification—Veatch literally diagrammed the socially framed workings of medical thought and action.
One of the goals of this work was to contribute to debunking what Veatch described as an enduring and mistaken tendency to elevate fact over value. Veatch traced the lineage of that tendency from Descartes through Locke and Newton, and then on to G. E. Moore, who refuted John Stuart Mill’s belief that the “good” could be defined through empirical study of what is desired. That long tradition stripped the “ethical” of any real, factual status. Veatch argued instead for an objective discourse about ethics. One only needed to clarify the boxes.
Veatch referred in particular to the work of Roderick Firth and William Frankena. Firth’s 1952 paper “Ethical Absolutism and the Ideal Observer” was used by Veatch, as it had been used by others, to argue that the “ethical” was an objective category of knowledge in that it had properties that compelled a feeling of requiredness, and thus a sort of factualness independent of the preferences of a given observer.64 Firth specifically wanted to reclaim from skeptics Moore’s famous contrast between describing something as yellow, as opposed to describing it as “good.” To say something was “yellow,” Moore observed, described a property of a yellow thing. Yellow in that sense was a proxy for our perception of a natural phenomenon of “light vibrations.” “Good” could also be a property of things, but any effort to identify other naturally founded characteristics of “good” was really just an elaborated listing of interpreted feelings about “good.” This was because, unlike yellow, good had no referent in a natural or mechanical process. To equate the perception of yellow with its reality was accurate; equating good’s reality with the perception of it was not. The latter inference confused agreement about what counted as good with its factualness and led to what for Moore was a key error: a naturalistic fallacy.65
Firth argued that while this insight led away from a naturalistic ethics, it moved toward describing a more robust nonnaturalistic one—a stance that went farther, perhaps, than Moore himself was willing to go. To see yellow was to make a relational statement of the following type: to say a thing is yellow is to say something about how it would appear to a certain person under such-and-such circumstances. Ethics was no different. Veatch similarly drew on Frankena in building an analytical foundation for defining the good, post-Moore. Frankena and Veatch (and Firth) were objecting to a strong vein of skepticism in philosophy up to the mid-twentieth century, especially captured through writings such as those of A. J. Ayers and the emotivist and logical positivist schools. That tradition saw normative debates about ethics—the right, good, just, etcetera—as meaning nothing more than the preferred, enjoyed, liked, or despised. In Ethics, Frankena argued that if intuitions, emotions, or moral sentiments were indeed the underlying source of ethical commitments, then the experience of obligation that was considered a transparent part of ethical statements would neither be needed nor actively sought. Moral discourse instead strove to universalize beliefs through principled, non-egoistical discussion.66 Veatch joined this effort to reclaim an objective position for ethical reasoning in order to sketch a method for describing the good that could be both impersonal and objective. Such work relied upon texts such as Firth’s and Frankena’s, whose philosophical trajectory could be said to have culminated in John Rawls’ Theory of Justice in 1972.67
Doctors exerted expertise over what, to Veatch, were ethical and not medical questions, which required a different expertise. In making ethical statements, doctors appropriated forms of symbolization different from those used in medical works stating facts about the body, and thus strayed out of the range of their expertise. To ignore these boundaries, to not keep symbols in their rightful boxes with their rightful owners, was to commit Frankena’s error of calling one thing by another category—what he called the “fallacy of the generalization of expertise.” Medical ethics needed to be rescued from a professional expertise that had overreached its set of sanctioned tools.68
Veatch’s critique of Beecher’s brain death criteria as falsely ascribing a fact to a value therefore reflected a larger project. The Report was perfect material with which to show off the possibilities of a commitment to objective philosophy that could reconfigure the work of medicine along social roles and actions. Veatch was not only taking on Beecher, but seeking to further a particular mid-twentieth-century movement in moral philosophy as he embarked on his career.
Veatch was a Harvard Divinity School graduate and had completed a PhD in Religion and Society from Harvard. The Kennedy Center was led by moral theologians. Jonas’s work started with interpreting the Christian Gnostic tradition. Dan Callahan was a Catholic intellectual who served as editor of Commonweal, the prominent lay Catholic intellectual and policy journal, before taking on the Hastings Center. Jonas and Callahan, along with other early framers of American bioethics, sought to extend the relevance of moral theology in an increasingly secularized world. If theology was to remain relevant, religious thought needed to incorporate other disciplines such as moral philosophy and sociology.
Callahan wrote at length about the Church and its internal struggles over participation in a seemingly more politically divisive, pluralistic, and secularized society.69 His detailed study of abortion, which appeared in 1970, began with the voice of a troubled Catholic but quickly moved on to describe how the issue could and should be engaged through pluralistic value systems. The key, he argued, was a technique of moral investigation that methodically examined these value systems in order to arrive at overlapping principles—or at least to clarify differences in order to facilitate a more shared and inclusive discussion and, hopefully, consensus.70
Soon after Beecher and his Committee completed their work, Callahan spoke at one of a series of conferences that formed the 1969 volume, Updating Life and Death. In that book he detailed a method of moral philosophy, apparent in Abortion, with which to approach profound questions such as what made life sacred. He described a process of collective deliberation that started with identifying broad shared first-principles that could be a foundation for consensus or at least maximize areas of common ground as more specific applications of these principles were explored. The role of ethical analysis was to first identify such widely-shared first-order principles, such as the sacredness of life. These principles took as their starting point shared consensus over basic issues that might apply to many situations or controversies. From these, argued Callahan, should flow rules that could be subsequently evaluated and justified to the degree that they answered more specific controversies, but in a way that served or enhanced the larger principle(s). These subsequent rules and subrules, and the debate about their fidelity to the larger principle(s), required regular reexamination as new rules proliferated and new circumstances appeared. Callahan envisioned a deliberative process, expanding from these core shared principles, in order to reach moral conclusions that would cut across seemingly distinct issues and controversies. Such a process would ostensibly identify a coherent approach to related issues such as population control, death defining, and birth control.71 This process was needed since a “religious foundation for normative principles … [was] no longer tenable.”72
Veatch also began seeking theological answers for social problems but turned quickly to more secular solutions. His Value Freedom explored controversy over the use of oral contraceptives in great detail. He studied attitudes of doctors and patients about oral contraceptives and found patchy consensus between doctor and patient attitudes. Doctors and patients, he argued, should therefore be paired according to their compatibility in terms of how they structured meaning. This pluralistic and technical approach to conditions of consensus stood in stark contrast to the heated theological debates swirling around contraception use. Veatch tried to bridge the realms of logic and spirit, arguing that a turn to more “objective” discourse was still faithful to spiritual roots by providing an explanation for a realm of human experience difficult to account for—our ineffable (but palpably experienced) sense of purpose or belief. The experience of knowing something objectively, even if it took place within a specific context of meaning, strove to transcend the everyday. The experience of objectivity had, then, a “religious” quality: “Without the religious element of self-transcendence, of ultimate meaning, the objective command would not be felt.”73
Moral aspects of medicine, which were once discussed almost exclusively by theologians, became the domain of secular professional ethicists. This aspect of the story of bioethics traces the transformation of the moral power of the sacred into the accessible tool of the philosopher or hospital ethics committee. It is not surprising that its formative figures were consciously seeking connections between their religious positions and new and exciting developments in academic moral philosophy, as well as in controversial and tumultuous social and political changes in the 1960s. Many of those controversies, such as those over contraception, abortion, and the newly blurred boundaries between life and death, focused on how to treat bodies. Veatch’s path from divinity school to the secular domain paralleled that of bioethics as a whole, in the replacement of a theological tradition emphasizing discernible principles and rules by a secular philosophy with a similar emphasis on principles and rules. A vision of a secure, immanent moral universe shifted from God to the philosopher and, within medicine, from the doctor to the ethicist.
Accompanying this move to secular discourses and professional opportunities was a parallel debate over moral theology itself—should it emphasize the importance of rules or of context? This was not an abstract argument over the utility of different methods for moral theology, but was shaped by palpable social dislocation with respect to sexual norms, technological power, and the role of religious authority in 1950s and 1960s America. These arguments and this context were conveyed by the starkly different approaches to ethics taken by Paul Ramsey on the one hand, and by Beecher’s friend Joseph Fletcher on the other.
We may never know for sure how carefully Beecher read the works of Fletcher, or of Moore, whom he also cited in Research and the Individual. But he regularly described himself in ways that incorporated the view of ethics that Fletcher advocated and that Veatch and Ramsey positioned themselves against. What divided Ramsey and Fletcher, and why is that relevant to talking about brain death? Ramsey was not hostile to the brain death criteria per se. His unease was outlined in the Lyman Beecher Lectures at Yale in 1969, which were published a year later as The Patient as Person. These reflected correspondence he’d had with Beecher expressing concern that the brain death definition meant that the heart would still have “spontaneous” capacity to beat in a “dead” person.74 Either the criteria updated the definition of heart death in response to the inadequacy, revealed by artificial supports, of previous indicators of the heart’s true death and loss of spontaneity. Or, the criteria suggested something quite different: a description of the primary importance of consciousness for descriptions of personhood. The latter violated respect for the sacredness of the body. Ramsey and others read a mixed message in the Report as to whether brain death was death because of lost capacity for consciousness or because of loss of spontaneous cardiopulmonary function. If tests of consciousness alone were the fundamental test of personhood, that would open the floodgates for opportunities to use patients as a means for the benefit of others.
Ramsey was also a widely read figure in debates through the 1960s about whether morality resulted from the set of relationships from within which a moral dilemma arose, or from reasoned rules and norms that guided and explained conduct.75 Ramsey sided with the latter position. This dispute was in many ways a reprise of the Reformation conflict over grace versus deeds, over knowing what was right through one’s own relationship with God versus following certain established values and rules. Ramsey feared ethics would lose, as its central consideration, agape, or Christian love, along with the demands agape placed on us. He also feared that reckless use of the idea of agape might only further a utilitarian, subjective morality. That is, one could expediently argue they were doing the “best” and most “loving” thing for another in order to justify any desired action. Rulemaking and rationality thus played a crucial, but particular, role for Ramsey—they helped avoid an “agape exceptionalism” and helped realize Christian love through rules that would structure moral choice.76 Reflecting the tumult of sexual and political change in the 1960s—a common topic in these debates over rule/reason versus love/context ethics—he noted:
Our contemporary penchant for escape-clauses and exception-making criteria to free the human spirit can only be compared with the displacement of sound political reason and statesmanship in the contemporary period by “crisis-manager” with their “rationality of irrationality” policies … In the absence of good moral reasoning, responsibility in moral action is reduced also to singular acts of the will … agape on one side, and quantifying reason on the other. Among men living in this hour the range of moral reason is considerably contracted. This explains why so many discover principle-less exceptions, both in personal morality and in social and political ethics.77
Ramsey sought a firm position on which to base rules faithful to agape in a pluralistic world. Mankind needed help and guidance to recognize and focus on agape, not freedom to individually craft it. One such firm position from which other rules could follow was the Christian commitment to the inviolability of the body, from which came his concern about a loss of consciousness-driven justification for brain death. Ramsey was wary of manipulating nature, and in particular of tampering with biological processes such as genetic endowment and reproduction for our own ends. His theology emphasized the sinfulness and limitations of man and the lack of capacity to exert significant dominion over nature. Ramsey’s writings were deontological and skeptical of man’s initiative with regard to God and nature. One contemporary critic described Ramsey’s ethics as animated by an apocalyptic eschatology: The future held the likelihood that God would kill us all.78
Fletcher was among such critics and couldn’t have been more different from Ramsey. His 1954 bestseller Morals and Medicine, and pretty much all that followed, celebrated human choice. Fletcher was on the side of those theologians who saw in history less the specter of the apocalypse than mankind’s progressive and necessary engagement in shaping its own future. Technology held potential for great good. Choice over the fate of one’s body was the true expression of humanity and the responsibilities that entailed. Sterilization, abortion, and euthanasia reflected appropriate legitimation of choices in the prerogatives of individuals, not in some moral code written in nature:
A great deal of ethical reasoning in the past has been of this immoral kind—arguing against initiative and human control on grounds that it is allegedly “unnatural” or “against nature.” That kind of ethics simply cannot survive in a technological civilization. “Nature” and “human nature” are no more fixed and finished than any of the other concepts moralists like to posit.79
Nor were decisions answerable to some static, unchanging notion of the holiness of the body that was blind to changes in how human agency could legitimately manipulate that body for the betterment and happiness of mankind:
We are concerned primarily with man’s spiritual quality and his selfhood. It is the integrity of the personality that has first claim in the forum of conscience. To be a person, to have a moral being, is to have the capacity for intelligent causal action. It means to be free of physiology! … But it is precisely persons—and not souls or bodies or glands or human biology—that count with God and come first in ethics.80
Fletcher’s theological comfort with the prerogatives people had over their bodies allowed him to stake out a very different position from Ramsey in the raging norm-versus-context debate in American Christian moral theology. Fletcher, an Episcopalian minister, positioned himself within the work of such theologians as Reinhold Niebuhr, Martin Buber, and Dietrich Bonhoeffer. He saw in them as well the idea that moral theology focused attention on details rather than principles in moral situations, and that relationships with others shaped the nature and meaning of responsibility. This led Fletcher to emphasize that knowledge of what was moral in a given situation was attained through agape—a notable move in light of his oppositional stance toward Ramsey.
In a number of works, in particular Moral Responsibility and Situation Ethics.81 Fletcher criticized what he saw as a dominance of a natural law tradition in particular and legalism in general in Christian moral theology. In contrast to Veatch or Ramsey, Fletcher saw himself more directly as part of a process, linked to Moore, that questioned the possibility of reifying or objectifying notions such as the “good.” Good, justice, etcetera, were not properties at all. The goodness of an act lay in the very specific context in which it occurred and the motivations and results, in terms of agape, for those involved. Only within a specific effort to realize or sustain love—the only intrinsic good—could an act or belief of moral value be known. Fletcher repeated certain illustrative examples, such as a labor camp prisoner who purposefully became pregnant by a guard so as to be able to leave the camp and return home to her family. This was a moral act. Extramarital affairs, he argued in terms which were provocative at the time, could be considered moral if done in the context of a hopelessly loveless marriage and if motivated by the love and betterment of another in ways that otherwise respected the remaining marriage relationship.
Fletcher’s position was a target of those concerned with what was often referred to as the “new morality.” He was criticized for having an inconsistent notion of agape, for sending mixed messages about whether experience was best described in existential or theological terms, and for giving a morally unsatisfying account of how to use reason to apply agape to particular situations. But he also provided a rallying point for criticism of excessive legalism and naturalism in moral philosophy and theology, especially at a time of contested moral authority.82
Beecher’s adoption of Fletcher’s views deserves attention. They shared a perspective in which the ends determined the value and morality of actions. “Indeed, unless justified by some end in view, any action is literally meaningless,” wrote Fletcher.83 Fletcher was unconcerned that a renal dialysis committee might choose a mother of four over an alcoholic to benefit from that scarce technology. Of course it would. As for brain death, he was unconcerned with the physician moving in to usurp ultimate moral authority, to play God. Playing God was unavoidable; the question was which God to play. Not the God of mystery and ignorance, but of responsiveness to need.84 A friend of Margaret Sanger, and labeled the “Red Churchman” by Joseph McCarthy for his membership in the Soviet-American Friendship Society among other things, Fletcher saw his support of euthanasia, abortion, sterilization, and contraception as part of a movement to free people from being “puppets.” He is credited as a critical figure in shifting the justification of euthanasia from a eugenics-driven rationale to one of moral choice and individual right.85
Beecher specifically endorsed Fletcher’s situationalism. Moral action was known deep within context, not reflectively outside of it, and that required deep content knowledge of context, of medical facts and their basis. Veatch and other critics endorsed opposing ideas about the nature and purpose of moral facts, which in turn fit well with their efforts to clarify, professionalize, and secularize expertise over physicians and their increasingly dramatic interventions. Each, though, responded to the anxiety and mixed feelings about medicine’s benefits and intrusions, and the strangeness of embodiment that new technologies made hard to deny.
Beyond concepts and theory, the simple unsettling feeling that death was being strangely moved ahead of dying was palpable among critics. Leon Kass was a founding Fellow at Hastings and part of the initial work there on death and dying that included the AAAS brain death panel and published papers from it; he would later chair the Bioethics Council of President George W. Bush. Kass corresponded with Beecher and acknowledged that while dying might be a continuous event, “this difficulty does not warrant the conclusion that death, in contrast with dying, is a continuous event.” Alongside his copy of these comments, Beecher wrote: “In our fallible state we are unable to pinpoint death. We can only deal with the process of dying and attempt to identify the state of no return.”86
As Beecher argued in his marginalia and public comments, the content of the Harvard criteria initially came less from a drive for conceptual clarity than from the degree to which Schwab and his colleagues, as discussed further in Chapter Five, used (and needed) the criteria for those threshold situations when death was not distinguishable from dying in practice. In Eliasburg and Research and the Individual, Beecher reflected that medical dilemmas were dilemmas precisely because they pushed on the sensitive tensions between our biological and rights-bearing selves. An antidote to these dilemmas, then, needed a reliable broker of knowledge about the body. But while Beecher took much from Fletcher, Beecher’s situationalism—as seen in his discussion of ends and means—was also positioned in a way that reflected the complexity of the space between Ramsey and Fletcher. Agape applied to physicians as well, and in that context it needed ground rules and specified responsibilities. Beecher considered science and medicine to be uniquely capable of engaging and solving core ethical challenges by virtue of how they managed the messy and contingent facts that were central for doing so. What was known and possible within the context of medical practice and knowledge could align means and ends.
In this way there was, in retrospect, a missed opportunity for a rich conversation between Beecher and Jonas that would have perhaps highlighted a different ethics dialogue around the purposes of medicine. Jonas’s earlier work involved the history of Gnosticism; he described the transition from an ancient to a modern sensibility as a break from “the contention that the organic even in its lowest forms prefigures the mind, and that mind even in its highest reaches remains part of the organic.” Both were essential and inseparable, according to Jonas: “A philosophy of life comprises the philosophy of the organism and the philosophy of mind.”87 Psychophysical unity was intrinsic to the meaning of “being.” In a critique of his teacher Martin Heidegger’s groundbreaking formulation of Being, a critique spurred by Jonas’s disappointment in Heidegger’s affiliation with Nazism, Jonas faulted the idealized distance of the existential point of view as the unsurprising result of that ancient–modern split which fueled a dangerous mind–body dualism. Such a dualism unmoored us from the organic world such that we saw nature as an inert “other” and a playground for our designs, rather than as a necessary source of values as it ought to be, Jonas argued, given our deep continuities with it:
The living body that can die, that has world and itself belongs to the world, that feels itself and can be felt, whose outward form is organism and causality, and whose inward form is selfhood and finality; this body is the memento of the still unresolved question of ontology, “What is being?”88
Jonas found the scope of emerging technologies, especially in medicine, as an unprecedented “new kind of human action”89 that was also a direct result of this dualism and permissive acting on nature as an object. Jonas saw in his quite different philosophy of life an answer to the question of where to find the needed brakes on this pace of change and manipulation of our being: “What force shall represent the future on the present? … before the question of what force, comes the question of what insight or value-knowledge will represent the future in the present.”90
For Beecher, medicine held the possibility for managing rather than wishing away the dualism Jonas faulted with unchecked assaults on our nature. Medicine was both a driver and, potentially, an antidote to this tendency toward technological manipulation of ourselves and the world. Beecher recognized this potential in the particular example of his limits around the respirator and in the weighing of ends and means. Beecher’s challenge to Jonas to describe a path as to how to progress was one he thought medicine could answer. The perspective of medical work, immersed and generating knowledge from within the psychophysical unity, could bring Jonas’s cosmic vision of mind’s unified embeddedness in nature down to earth and more completely describe it. Medical knowledge and purpose were at the same time positioned to balance that fundamental, embedded, nature with the one that Jonas seemed to want to wish away: that is, the equally core feature of man to want to manipulate and even resist that nature.
Whatever dispute might be had with Beecher and his Committee, what clearly needs to be challenged is the historical characterization of their work as neither informed by, nor engaging with, thinking about ethics or the nature and purposes of medicine. A more sophisticated historical approach to these events, and to the history of medicine in general, can better explore how medical knowledge can and should mediate the dualism and ambivalence tied up with being embodied selves that suffer, but that don’t want to.
1. Henry Beecher, “The Right to be Let Alone; The Right to Die—Problems Created by the Hopelessly Unconscious Patient,” The Fifth Bernard Eliasburg Memorial Lecture, Mount Sinai Hospital, New York City, December 6, 1967: Box 13, Folder 24, Beecher Papers. See Michael T. Kaufman, “Rights of a Man in Coma Pondered,” The New York Times, Sunday, December 10, 1967. The annual Eliasberg Lecture began in 1963 to honor the first Chair of Anesthesiology at Mt. Sinai. Notable lecturers have included Nobel Prize recipient Linus Pauling.
2. Henry Beecher, “Ethical problems created by the hopelessly unconscious patient,” New England Journal of Medicine 278, no. 26 (June 27, 1968): 1425–30.
3. Beecher, “The Right to be Let Alone,” 1.
4. Edward A. Shils, “Social Inquiry and the Autonomy of the Individual,” in The Human Meaning of the Social Sciences, ed. Daniel Lerner, (New York: Meridian Books, Inc., 1959), 114–57.
5. Shils, Ibid., 120, 118.
6. Eliasburg manuscript, 7.
7. Shils, “Social Inquiry,” 121.
8. Ibid., 118.
9. Ibid., 8, 11.
10. See Beecher to Berry, June 6, 1965 and November 16, 1965, Box 6, Folder 71, Beecher Papers.
11. See typescript, “Notes for Report to Faculty of Medicine on Human Studies Committee,” January 8, 1971, Box 6, Folder 85, Beecher Papers.
12. Henry K. Beecher, Experimentation in Man (Springfield, IL: Charles C. Thomas, 1958), and Research and the Individual (Boston: Little, Brown and Co., 1970). The first book appears to be essentially a reprint of a lengthy featured article in JAMA of the same title as a report by Beecher adopted by the American Medical Association Council on Drugs, and Committee on Research. Henry Beecher, “Experimentation in man,” JAMA 169 (1959): 461–78.
13. Henry K. Beecher, Measurement of Subjective Responses: Quantitative Effects of Drugs (New York: Oxford University Press, 1959).
14. Beecher, Research and the Individual, 24, 26.
15. Henry Beecher, “The powerful placebo,” JAMA 159, no. 17 (December 24, 1955): 1602–6, 1606.
16. Henry Beecher, “Experimentation in man,” 470.
17. Ibid., 473.
18. Henry Beecher, Research and the Individual (Boston: Little, Brown, 1970).
19. Henry Beecher, “Consent in clinical experimentation in man: myth and reality,” JAMA 195, no. 1 (January 3, 1966): 34–35. Henry Beecher, “Some fallacies and errors in the application of the principle of informed consent,” Clinical Pharmacology and Therapeutics 3 (March–April 1962): 141–45.
20. Beecher, Research and the Individual, 20.
21. Ibid., 23, 26.
22. Minutes, Human Studies Committee, Box 8, Folder 63, Beecher Papers.
23. For an interpretation of controversy over the acceptability of controlled trials as a story of the socialization of standardization over individual judgments, see Theodore Porter, Trust in Numbers (Princeton: Princeton University Press, 1995). For other historical forces shaping consensus around experimental methods for controlled and randomized methods for proving efficacy, Ted J. Kaptchuk, “Intentional ignorance: a history of blind assessment and placebo controls in medicine,” Bulletin of the History of Medicine 72, no. 3 (Fall 1998): 389–433.
24. Henry Beecher, “Some guiding principles of clinical investigation,” JAMA 195, no. 13 (March 28, 1966): 1135–36, 1135.
25. Benjamin Freedman, “Equipoise and the ethics of clinical research,” The New England Journal of Medicine 317, no. 3 (1987): 141–45. For some indications of the subsequent debate surrounding this idea see Franklin G. Miller and Howard Brody, “A critique of clinical equipoise: therapeutic misconception in the ethics of clinical trials,” The Hastings Center Report 33, no. 3, (2003): 19–28, and Robert Veatch, “The irrelevance of equipoise,” Journal of Medical Philosophy 32, no. 2 (2007): 167–83. Criticisms include that equipoise generally takes the point of view of physicians or researchers, not the subjects for whom determination of the equal positions of treatment options may or may not be shared. Similarly, looking at research from a balance of clinical benefit implied a therapeutic relationship between the researcher and the subject that risked a therapeutic misconception. That is, subjects could mistakenly understand their participation in research to be treatment, and thus were vulnerable in terms of motives for participation and misunderstanding of risks. See my historical perspective on—and critique of—this “misconception” in Gary S. Belkin, “Misconceived bioethics? The misconception of the therapeutic ‘misconception,’ ” International Journal of Law and Psychiatry 29 (2006): 75–85. The issues Beecher explored remain a relevant part of a tension over what drives physician obligations to subjects.
26. R. L. Addinall, “Cowardly patient,” Science 153 (August 12, 1966): 694.
27. Beecher, Research and the Individual, 27–29.
28. Beecher to Berry, May 28, 1965, Box 6, Folder 16, Beecher Papers.
29. Henry Beecher and Donald P. Todd, “A study of the deaths associated with anesthesia and surgery,” Annals of Surgery (1954): 140.
30. Beecher, Typescript of Address at Central Connecticut State College, Oct 19, 1966, Box 30, Folder 33, Beecher Papers, 16.
31. Beecher’s main source for this was the prolific author and science commentator, Bentley Glass, Science and Ethical Values (Chapel Hill: University of North Carolina Press, 1965).
32. Beecher, Research and the Individual, 206.
33. Fletcher to Beecher, March 20, 1971, Box 11, Folder 24, Beecher Papers.
34. Beecher, Research and the Individual, 211.
35. Ibid., 211–12.
36. This reflected as well the position at the time of the Board of Medicine of the National Academy of Sciences, which issued a statement specifically about cardiac transplantation making clear that such a procedure should be regarded as research. “The ethical issues involved … are a part of the whole complex question of the ethics of human experimentation.” Board on Medicine, National Academy of Sciences, “Cardiac transplantation in man,” JAMA 204, no. 9, (May 1968): 147–48, 148. It is worth remembering that skepticism about heart transplantation ran high. As one JAMA editorial put it: “transplantation of the heart cannot survive as a valid procedure,” doubting with unveiled sarcasm that a supply of hearts could not exist without new coercions. See “Have a heart,” JAMA 203, no. 5 (Jan. 29, 1968): 356–57, 356. See also “The sky watchers,” JAMA 204, no. 9 (May 27, 1968): 820–21. There, the editors stated they were “unconvinced of the merits of heart transplantation” (821).
37. Henry Beecher, “The New Definitions of Death, Some Opposing Views,” manuscript, 1971, Box 16, Folder 18, Beecher Papers, 5.
38. Robert M. Veatch, “Brain death: welcome definition or dangerous judgment?,” Hastings Center Report (November 1972): 10–13, 10–11.
39. Robert M. Veatch, “Remarks on Dr. Henry K. Beecher’s Paper ‘The New Definitions of Death, Some Opposing Views,’ ” AAAS Chicago, Box 16, Folder 18, Beecher Papers, 6.
40. See Death, Dying and the Biological Revolution: Our Last Quest for Responsibility (New Haven: Yale University Press, 1976). Veatch continued to argue this scheme in later writings over subsequent decades.
41. Robert M. Veatch, “Remarks on Dr. Henry K. Beecher’s Paper,” 4.
42. Jonsen in particular characterizes this address as shattering the isolation of medicine from proper philosophical study, describing it as “a landmark in the ethics of experimentation and in bioethics in general … Hans Jonas gave to the ethics of research a solid philosophical foundation,” Jonsen, The Birth of Bioethics, 150–51.
43. Hans Jonas, “Philosophical reflections on human experimentation,” in Daedalus: Ethical Aspects of Experimentation with Human Beings (Spring 1969): 219–47, 227.
44. Ibid., 230.
45. Ibid., 228.
46. Henry Beecher, “The new definition of death. Some opposing views,” International Journal of Clinical Pharmacology, Therapy and Toxicology 5, no. 2 (April 14, 1971): 120–24, 123. This paper approximates the manuscript version of the same title cited above, to have been presented at AAAS, which Veatch and Ramsey criticize.
47. Ibid., 122. Jonsen’s Birth of Bioethics sets up physician Walsh McDermott’s argument that the good of society can trump the rights of some individuals when it comes to experimentation as Jonas’s target. This philosopher–physician opposition is critical to Jonsen’s narrative of the unique, needed, and valuable expertise of bioethics philosophers. But Beecher’s own concerns and cautions about societal claims also complicates both Jonas’s and Jonsen’s use of this narrative.
48. Beecher marginalia on manuscript copy of Paul Ramsey, “Comment on ‘The New Definition of Death, Some Opposing Views,’ by Henry K. Beecher,” Box 16 Folder 16, Beecher Papers, 4.
49. Ibid., 7.
50. Ibid., 5.
51. Daniel Callahan, The Roots of Bioethics: Health, Progress, Technology, Death (New York: Oxford University Press, 2012).
52. Henry Beecher, “The new definition of death. Some opposing views.”
53. Robert Veatch, “Whole-brain, neocortical, and higher brain-related concepts.”
54. Robert M. Veatch, “Remarks on Dr. Henry K. Beecher’s Paper,” 2.
55. Ibid., 7.
56. Veatch, “Remarks on Dr. Henry K. Beecher’s Paper,” 1.
57. Ibid., 4.
58. Beecher, typescript, “Notes for Report to Faculty of Medicine on Human Studies Committee,” 3, January 8, 1971, Box 6, Folder 85, Beecher Papers.
59. Ibid., 4.
60. Ibid., 12.
61. Ibid., 1.
62. Henry Beecher, “Some moral and ethical problems confronting the medical investigator,” Old South Church on the occasion of its 300th anniversary, Feb 9, 1969, Box 12, Folder 32, Beecher Papers, 16.
63. Ramsey, “Comment on ‘The New Definition of Death, Some Opposing Views,’ by Henry K. Beecher,” Box 16 Folder 16, Beecher Papers, 4.
64. Roderick Firth, “Ethical absolutism and the ideal observer,” Philosophy and Phenomenological Research 12, no. 3 (March 1952, 12): 317–45, 319.
65. G. E. Moore, Principia Ethica (Cambridge: Cambridge University Press, 1991 [1903]). See especially 10–17.
66. William Frankena, Ethics (Englewood Cliffs, NJ: Prentice-Hall, 1963).
67. Veatch specifically acknowledged his reliance upon Firth and Rawls as singular influences. See Jonsen, Birth of Bioethics, 56–57.
68. Robert M. Veatch, “Medical ethics: professional or universal?,” Harvard Theological Review 65 (1972): 531–59.
69. See for example Callahan’s collection of essays that addresses the necessity of Catholic intellectual inclusion in mainstream forms of inquiry, The New Church (New York: Charles Scribner’s Sons, 1966), and his book on abortion, below.
70. Daniel Callahan, Abortion: Law, Choice and Morality (New York: The Macmillan Co., 1970).
71. Daniel Callahan, “The Sanctity of Life,” in Updating Life and Death, ed. Donald R. Cutler (Boston: Beacon Press, 1969): 181–223.
72. Daniel Callahan, “Response,” 243–50, 250.
73. Veatch, Value Freedom, 111.
74. Paul Ramsey, The Patient as Person (New Haven: Yale University, 1970). See especially Chapter Two, “On Updating Procedures for Stating that a Man Has Died,” 59–112.
75. Paul Ramsey, Deeds and Rules in Christian Ethics (New York: Charles Scribners Sons, 1967), Gene Outka, Paul Ramsey, eds., Norm and Context in Christian Ethics (New York: Charles Scribner’s Sons, 1968), Charles E. Curran, ed., Absolutes in Moral Theology? (Washington: Corpus Books, 1968).
76. Paul Ramsey, “The Case of the Curious Exception,” in Norm and Context in Christian Ethics, eds. Gene Outka, Paul Ramsey, 67–135.
77. Ibid., 93.
78. For this view of Ramsey, as well as a good entree to this natural law debate, see Charles C. Curran, Contemporary Problems in Moral Theology (Notre Dame, IN: Fides Publisher, Inc., 1970).
79. Joseph Fletcher, “Technological devices in medical care,” in Who shall live? Medicine, Technology, Ethics, ed. Kenneth Vaux (Philadelphia: Fortress Press, 1970): 116–42, 124.
80. Joseph Fletcher, Morals and Medicine (Boston: Beacon Press, 1954): 218–19.
81. Joseph Fletcher, Moral Responsibility, Situation Ethics at Work (Philadelphia: The Westminster Press, 1967); Situation Ethics: The New Morality (Philadelphia: The Westminster Press, 1966).
82. For a collection of responses to Fletcher’s Situation Ethics and its place in the broader debate within moral theology, see Harvey Cox, ed., The Situation Ethics Debate (Philadelphia: Westminster Press, 1968).
83. Fletcher, Moral Responsibility, 22.
84. Joseph Fletcher, “On Death,” in Updating Life and Death, ed. Donald R. Cutler (Boston: Beacon Press, 1969).
85. Ian Dowbiggin, A Merciful End: The Euthanasia Movement in Modern America (New York: Oxford University Press, 2002), 100–102.
86. Kass to Beecher, May 20, 1970, Box 16, Folder 12, Beecher Papers.
87. Hans Jonas, The Phenomenon of Life: Towards a Philosophical Biology (Evanston, IL: Northwestern University Press, 2001 [1966]), 1.
88. Ibid., 19.
89. Hans Jonas, The Imperative of Responsibility: In Search of an Ethics for the Technological Age (Chicago: University of Chicago Press, 1984), 23.
90. Ibid., 22.