Beyond the Twilight Zone: A Comparative History of Brain
Death Policies in Japan and the United States

CBEL Report Volume 4, Issue 1

Regular Article

Beyond the Twilight Zone: A Comparative History of Brain Death Policies in Japanand the United States
Hiroyuki Nagai (The University of Tokyo)

Abstract
In Japan and the United States, brain death policy development has resulted in a situation where two opposing
positions co-exist regarding the notion that “brain death is human death.” Although discussions on this topic have
only taken shape in the United States this century, similar discussions were already underway in twentieth-century
Japan. This paper explores how public debates in the United States caught up with those in Japan. Comparative
analysis of the processes leading to the development of brain death criteria reveals that, in Japan, the creation of
medical evidence-based criteria occurred in a smooth, sequential manner—first addressing cases with a short “alphaperiod” (i.e., the period from brain death leading to cardiac death), with many brain death cases defined as thosecaused by primary lesions, unlike in the United States where lesions (i.e., multisystemic disorders) were deemed
responsible for a majority of brain death cases. By clarifying the historical context, this study shows how thisdifference in definition has led to the co-existence of two opposing policies. In Japan, various technologicaldevelopments extended the “alpha period” by the 1990s, while controlling it with appropriate ethical considerations.
This period—referred to as the “twilight zone”—was never widely accepted in the United States, but Japanese
attempts to extend the “alpha period” were incorporated into bioethics commission reports in the 2000s.

Keywords: Bioethics policymaking, Brain death, Comparative history, Harvard Criteria, Takeuchi Criteria

1. Introduction

Death (hereinafter, Harvard Ad Hoc Committee)

According to Eelco F. M. Wijdicks, “brain death” is the

published a set of criteria for defining an irreversible

vernacular expression for irreversible loss of brain

comafunction (2002: 20). In the United States, brain death

Committee of the Harvard Medical School to Examine

was accepted as human death in the 1980s through athe Definition of Brain Death 1968). In 1981, thenumber of policy debates surrounding the official

President’s Commission for the Study of Ethicalrecognition of criteria for the determination of brain

Problems in Medicine and Biomedical and Behavioral

death. In 1968, the Ad Hoc Committee of Harvard

Research established in 1978 (hereinafter, President’s

Medical School to Examine the Definition of Brain

Commission) submitted a report entitled, Defining(hereinafter,

Harvard

Criteria)

(Ad

Hoc

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Hiroyuki Nagai

Death: A Report on the Medical, Legal and Ethicalthese criteria are known as the “Takeuchi Criteria”

Issues in the Determination of Death (President’s(Ministry of Health and Welfare 1985). In 1990, theCommission for the Study of Ethical Problems in

Prime Minister’s Office (PMO; now Cabinet Office)Medicine and Biomedical and Behavioral Researchestablished the Provisional Commission for the Study

1981). These publications paved the way to validate aon Brain Death and Organ Transplantation (hereinafter,

framework that accepted brain death as human death on

Provisional Commission on Brain Death), which

the basis of neurological criteria (Bernat et al. 1981).

submitted a report entitled “Important Issues Regarding

However, criticisms of this framework emerged inBrain Death and Organ Transplantation: A Report” inthe 1990s (Emanuel 1995; Shewmon 1998; Singer

1992 (Provisional Commission for the Study on Brain

1994; Truog 1997), resulting in further public debate in

Death and Organ Transplantation 1992). While manythe 2000s. In 2001, the George W. Bush administrationcommittee members supported the acceptance of brain

appointed an advisory committee, known as thedeath as human death, this report also devoted an entire

President’s

chapter to clarifying the stances of the minority who

Councilon

Bioethics(hereinafter,

President’s Council), to replace the National Bioethics

oppose this idea.

Advisory Commission. In 2008, the President’s Council

Although Margaret M. Lock (2002) conducted apublished a report—Controversies in the Determination

similar analysis of the changing understanding andof Death: A White Paper—in which the majority ofcriteria of brain death over the twentieth century, few

committee

thehave compared the historical development of brain

conventional neurological criteria, while the minority

death criteria in Japan and the United States, or dealt

sided with aspects of the recent criticisms (President’s

with recent twenty-first century developments when

Council on Bioethics 2008). The incorporation of thesedoing so. In the United States, related studies havecriticisms resulted in the report’s inclusion of opposing

primarily

positions regarding the acceptance of brain death asneurological criteria in the last century (Bagheri 2003;

human death.

Kimura 1991; Leflar 1996; Morioka 2001), leading

members

continued

tosupportfocusedontheprocessofcreating

Policies drawn up in the United States in the twenty-

researchers to conclude that the formation of a social

first century—in which two opposing arguments

consensus on equating brain death to human death has

regarding brain death co-exist—are similar to the final

progressed smoothly. However, given the recent

Japanese brain death policies developed at the end of thesituation in both countries (i.e., the co-existence oftwentieth century. In Japan, the criteria for determining

opposing arguments), it may be fair to say that Japan

brain death were developed in 1985 by the Brain Deathwas more deeply engaged in this discussion well ahead

Study Group, under the purview of the Ministry ofof the United States. As such, it is meaningful to revisit

Health and Welfare (MHW; now Ministry of Health,the process leading up to the public discourse

Labour and Welfare). Named after the head researcher,divergence on the acceptance of brain death by2

Beyond the Twilight Zone: A Comparative History of Brain
Death Policies in Japan and the United States

CBEL Report Volume 4, Issue 1

additionally considering recent events that contributed

In Japan, the criteria for determining brain deathto the formation of a social consensus. Accordingly, thiscaused by primary lesions—which result in conditions

study presents a more adaptive, up-to-date historicalsuch as brain contusion, brain hemorrhage, and brain

account of how the composition of brain death policies

tumors—were established by academic societies in thein the United States evolved to resemble those of Japan.

1970s and based on case studies from neurosurgicalThis is achieved through a comparative analysis of the

facilities. Established by the MHW in 1969, the Council

processes leading to the development of brain deathon Organ Transplantation published an interim report incriteria in Japan and the United States from the 1960s to1971 that mentioned both the argument equating brain

the 2010s, as well as of the discourses related to these

death to human death and the opposing position thatprocesses.

regards only cardiac death as constituting death(Tokizane 1975). The report suggested the following

2. The Process of Developing Brain Death Criteria inregarding the need to formulate standards to determine

Japan and the United States

brain death:

This study begins with a comparison between the

Regarding the timing of the pronouncement ofprocesses that led to the creation of brain death criteria

death, the idea that “brain death” should bein Japan and the United States. Table 1 summarizes theregarded as “human death” instead of thedevelopment of brain death criteria in both countries

conventional definition of “cardiac death” hasfrom 1968 to 2011. In Japan, sequential steps wereattracted public attention with the opportunity tofollowed: first, by addressing cases of brain death

consider cardiac transplantation. We have spentcaused by primary lesions in the brain, and then by

a lot of time discussing this idea…but reachedexpanding the scope of review to include those cases

no conclusion that represented the position of

categorized as having a poorer prognosis (Takeuchi

the Council. However, some argued that even if

Criteria and their variations). Meanwhile, in the United

it were justifiable to treat “brain death” asStates, neurological diagnostic criteria were adopted“human death,” at this stage, we have no choice

first, and the accepted medical standards were thenbut to use the conventional definition thatrevised according to the most recent cases. Thisequates “cardiac death” to “human death,” asapproach was taken in the United States because thethere currently exist no established criteria for

cumulative number of cases of brain death due todetermining “brain death” (Tokizane 1975: 74).

secondary lesions (i.e., multisystemic disorders)
exceeded that involving primary lesions. Inevitably,both types of cases were handled together in order toverify the medical validity of the Harvard Criteria.

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Hiroyuki Nagai

Table 1. Chronological Table of Key Publications Related to the Development of Brain Death Criteria in Japan and theUnited States (1968–2011)
Year

Japan: Publications; Organizations

1968

United States: Publications; Organizations
A Definition of Irreversible Coma: Report of the Ad
Hoc Committee of the Harvard Medical School to
Examine the Definition of Brain Death [Harvard
Criteria]; Ad Hoc Committee of the Harvard
Medical School to Examine the Definition of Brain
Death

1971

Interim Report; The Council on Organ
Transplantation, Ministry of Health and Welfare
(MHW)

1974

Criteria for the Determination of Brain Death in Acute
Major Primary Lesions of the Brain [Prototype of
the Takeuchi Criteria]; Japanese Society ofElectroencephalography and Electromyography

1977

An Appraisal of the Criteria of Cerebral Death: A
Summary Statement (Harvard Criteria, revised
edition); Joint Study Led by the National Instituteof Neurological and Communicative Disorders andStroke

1981

Defining Death: A Report on the Medical, Legal andEthical Issues in the Determination of Death;
President’s Commission for the Study of Ethical
Problems in Medicine and Biomedical and
Behavioral Research

1985

Guidelines and Criteria for Diagnosis of Brain Death[Takeuchi Criteria]; Brain Death Study Group,
MHW

1987

1992

Guidelines for the Determination of Brain Death inInfants and Children (first edition); American
Academy of Pediatrics (AAP)
Important Issues Regarding Brain Death and Organ
Transplantation:A
Report;Provisional
Commission for the Study on Brain Death andOrgan Transplantation, Prime Minister’s Office

1995
2000

Determining Brain Death in Adults (first edition);
American Academy of Neurology (AAN)
Criteria for the Determination of Brain Death inChildren [Takeuchi Criteria Pediatric Version];
Study Group on the Criteria for the Determinationof Brain Death in Children, MHW

2008

Controversies in the Determination of Death: A White
Paper; President’s Council on Bioethics

2010

Determining Brain Death in Adults (second edition);
AAN

2011

Guidelines for the Determination of Brain Death inInfants and Children (second edition); AAP

4

Beyond the Twilight Zone: A Comparative History of Brain
Death Policies in Japan and the United States

CBEL Report Volume 4, Issue 1

With regard to the notion that “brain death should be

expanding the scope of the aforementioned criteria to

considered as human death,” both sides of the argument

include cases of brain death resulting from secondary

have co-existed in Japan from the outset of public

lesions, such as cardiac arrest and asphyxia leading todebate. Addressing this, the Japanese Society ofbrain hypoxia. In 1983, Takeuchi became the leader ofElectroencephalography

the MHW’s Brain Death Study Group and conducted a(currently,

andElectromyography

theJapanese

SocietyofClinicalnationwide case study targeting centers other than

Neurophysiology)

providedcasestudiesfromneurosurgery facilities (Takeuchi et al. 1987). This study

neurosurgical facilities in 1974, the results of which

revealed that 660 of the 718 cases (91.9%) collected up

were used to create criteria for determining brain deathto that point were due to primary lesions, while only 58(Ueki 1974). Since most cases collected in this study

cases (8.1%) resulted from secondary lesions. Moreover,were based on primary lesions, the scope of the criteria

among 20 cases, in which more than 15 days had passed

was inevitably limited to those cases (Takeuchi and Bai

between the onset of brain death and cardiac death, four1985). As Kazuo Takeuchi, a medical scientist who(20.0%) were cases of children younger than six years

cooperated in this project, recalled:of age. A set of criteria excluding these pediatric cases

When we developed the criteria of the Japanesewas published in 1985. The so-called Takeuchi Criteria

Societyandcovered both types of lesions as the causes of brain

Electromyography, we collected roughly 200

death subject to assessment. However, these criteriacases; most cases involved the three major

merely functioned as a tool to medically determine brain

primary lesions in the brain (brain contusion,

death and included an annotation that the criteria

brain hemorrhage, and brain tumor) that cause

themselves are not meant to propose a new concept ofbrain death. Certainly, there were a few cases“human death.”ofElectroencephalography

involving secondary lesions, but even if we wereIn its 1992 report, the Provisional Commission on

to conduct a retrospective study, the number ofBrain Death requested the formulation of criteria forthose cases was so small that we wouldn’t havedetermining brain death in children younger than six.

been able to say, responsibly, that “these criteria

Consequently, a new version of the Takeuchi Criteria

should be fine” (Takeuchi and Bai 1985: 40).

applicable to pediatric cases was created in the 1990s.

According to Takeuchi, his presentation of these

As leader of the Brain Death Study Group examining

results at the Congress of Neurological Surgeons

pediatric cases, Takeuchi responded by initiatingreceived the following comment: “This type of study isanother nationwide study in 1998, leading to thevaluable, because special circumstances exist in Japan

publication of the corresponding criteria in 2000

that involve, first of all, different types of brain damage(Takeuchi et al. 2002). In the 1998 study, cases in which

compared to other countries—especially the United

the duration from the onset of brain death to cardiac

States” (Takeuchi and Bai 1985: 46).

arrest was ≥30 days were defined as “long-term brain

In the 1980s, some consideration was given to

death”; 25 of 116 cases (21.6%) met this definition.
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Hiroyuki Nagai

Compared to these developments in Japan, brain

brain death caused by secondary lesions), without going

death criteria in the United States did not necessarily

through a process in which the focus was first placed oncome under scrutiny in a step-by-step fashion in terms

developing criteria in line with the pathology of primaryof medical validity. Indeed, Henry K. Beecher, alesions, as was the case in Japan.

medical scientist who served as the Chairman of the

In the 1980s, an attempt to reach an agreement

Harvard Ad Hoc Committee and wrote the first criteria

regarding neurological criteria for brain death was madeof this kind, barely referred to actual cases of brain death.

at a national level, while simultaneous efforts were

In fact, he was more heavily focused on contributing tomade to develop a framework that would gradually

the development of a social consensus, while ensuring

improve the medical validity of those criteria. The

that the medical validity of the criteria was of secondary

President’s Commission reviewed existing guidelines inimportance (Beecher 1969). Nonetheless, in 1972, thethe process of publishing a report on the definition of

Task Force on Death and Dying of the Institute ofdeath in 1981, recommending that brain death criteria

Society, Ethics, and the Life Sciences (hereinafter,be established in compliance with the accepted medical

Hastings Center)—of which Beecher was a member—standards at the time. Thereafter, and until relatively

published a report collating the conditions that brain

recently, academic societies began expanding the latest

death criteria should provide (“Refinements in Criteria

knowledge on brain death resulting from primary

for the Determination of Death” 1972). However, theirlesions without changing the outline of the neurologicalrecommendations failed to reflect the increasing

criteria approved by the Commission. Reviewing

number of brain death cases. Reflecting on thisavailable cases, the findings of the American Academy

limitation, the group noted “evidence building” as aof Pediatrics (AAP) and American Academy ofchallenge for the future. Around the same time, a

Neurology (AAN) were reflected in the respective brain

collaborative research group of the National Institute ofdeath criteria for pediatric patients and adult patients

Neurological and Communicative Disorders and Stroke(American Academy of Pediatrics 1987; Wijdicks 1995).

(NINCDS;

ofThis development was repeated even after the

Neurological Disorders and Stroke) conducted a

President’s Council published a new report on thenationwide case study in an attempt to verify the validity

controversies surrounding the definition of death inof the Harvard Criteria. This study found that only 230

2008. Subsequently, the AAN and AAP both revisedof 503 (45.7%) patients had brain death caused bytheir criteria in 2010 and 2011, respectively, inprimary lesions, while 273 (54.3%) had brain death due

accordance with the review of brain death cases toto secondary lesions, accounting for more than half ofconform to the latest medical standards (Nakagawa et al.

all cases (“An Appraisal of the Criteria of Cerebral

2011; Wijdicks et al. 2010).

currently,

the

National

Institute

Death” 1977). Thus, in the United States, brain death
criteria were verified in their original form, which
included the “secondary” aspect in their scope (i.e.,6Beyond the Twilight Zone: A Comparative History of Brain
Death Policies in Japan and the United States

CBEL Report Volume 4, Issue 1

3. Historical Factors Influencing Brain Deathby logically acknowledging this brief period,

Policies in Japan and the United States

properIn Japan, medical evidence on the prognosis of brain

obligations regarding the removal of organs as

death grew in conjunction with the criteria foran act of disposal of the body during this period

determining brain death. However, these developments

is attempted (Bai 1968: 20).

adjustment

of

one’s

rightsanddid not occur in the same way in the United States. The

At one point, Bai placed his proposal on hold after

reason for this discrepancy is that the academic

being questioned on the feasibility of the brain death

discourse on how to handle a body during the period

criteria upon which his idea was premised, which was

between brain death and cardiac death emerged during

in accordance with medical standards at the time (Baithe development of the Takeuchi Criteria in Japan.

1970). Later, attending a meeting of the Provisional

Although similar insights were beginning to emerge in

Commission on Brain Death as an expert in Octoberacademia in the United States, their impact was not

1990, Bai introduced the concept of the “alpha period”

significant enough to influence the updating of theas requiring reevaluation by committee members in

Harvard Criteria. Just one and a half months after thelight of the circumstances leading to the establishment

world’s first successful heart transplant surgery in Southof the Takeuchi Criteria. Elaborating on his views, Bai

Africa in December 1967, Koichi Bai, a Japanese legal

noted that there was a considerably close association

scholar, coined the term “alpha period” in reference tobetween his theory and the negative stance toward thethe period from the onset of brain death to cardiac death

criteria (“they not only provide a medically valid means(Bai 1968). With regard to legitimizing both the offer ofto determine brain death but also point to a new concept

an individual to donate an organ prior to theof human death”) (Provisional Commission for the

pronouncement of brain death, as well as the act ofStudy on Brain Death and Organ Transplantation 1991).

extracting the individual’s heart upon cardiac death on

When the criteria were published in 1985, Takeuchi

the basis of familial consent, Bai proposed thenoted that, in clinical practice, he was mindful of thefollowing:

way bodies were handled during the period between theWith regard to heart extraction, what if we

onset of brain death and that of cardiac death. Indeed,suppose there is another period—the “alpha

he confessed that in the neurosurgery ward of Kyorin

period”—between life and death, rather than

University Hospital, where he served as Director, the 30

approaching this in a manner that separates two

to 40 patients who suffered brain death each year all

scenarios ([removing the heart] from the living

remained in their beds until they reached the point ofbody vs. from the dead body)?...If this “alphacardiac death, with no attempts made to encourage

period” is brought up as an issue, the beginning

organ donation.

should be the onset of brain death, and the end

Since I myself have a “wet” feeling common toshould be the onset of cardiac arrest…In reality,

neurosurgeons, at present, we do not unplug

this may represent a very short time. However,respirators. Hence, we do not harvest organs
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CBEL Report Volume 4, Issue 1

Hiroyuki Nagai

from brain-dead patients. I have no doubt that all

be regarded as an “event” (Kass 1971; Morison 1971).

physicians in our facility, myself included, are in

As such, Kass adhered to the traditional understanding

consistent agreement with the idea that we “waitof the concept of death, as follows:for cardiac arrest”…Of course, when brain death

There is no need to abandon the traditional

is pronounced, we also prepare ourselves for theunderstanding of the concept of death: Death ismoment when the heartbeat stops (“the heart

the transition from the state of being alive to thewill soon stop beating”) at the same time, but

state of being dead…There is no real need tothat period is…“necessary as a sort of ceremony,”blur the distinction between a man alive and aso to speak. In other words, it is the grace period

man dead or to undermine the concept of death

before the heart stops (Kato et al. 1986: 40–41).

as an event. Rather, we should ask, in the light

Granted, the legal scholar’s notion of accepting theof our traditional concepts…whether the“alpha period” had some correlation with the clinicalpersons in the twilight zone are alive or not, andattitude of the medical scientist who had spearheadedfind criteria on the far side of the twilight zone

the development of brain death criteria. However, thein order to remove any suspicion that a man may

circumstances that allowed academic discourse to

be pronounced dead while he is yet alive (Kasscontinue in a manner that transcended the barriers

1971: 699–700).

between legal and medical disciplines may have also

Kass used the term “twilight zone” to describe thepromoted the sequential development of brain death

period of transition between being alive and being deadcriteria. Consequently, the scope of the criteria thatin the context that this transition represents a continuous

initially addressed cases with poor prognoses (i.e., those

event. In order to dispel the concern that the patient may

with a short “alpha period”) was expanded to include

be pronounced dead while still alive, Kass argued thatthose with a longer “alpha period.”the brain death criteria instituted should have sufficient

Meanwhile, a similar discourse regarding thevalidity to overcome this “twilight zone.”

appropriate means of handling the body of an individual

The term “twilight zone” was also used by Hans

transitioning between life and death started developing

Jonas (1974), a philosopher, who opined that anin the United States following the publication of theindividual on the verge of death should not be

Harvard Criteria, primarily among members of theconsidered dead so long as they remain “the organism

Hastings Center. In 1970, medical scientists like Robert

as a whole”—that is, as long as they maintain

S. Morison and Leon R. Kass openly debated whether

circulatory and other functions. Accordingly, Jonasthe Harvard Criteria really deserved their status as themade the following assertion:

standards for judging human death (Jonsen 1998).

Reality of certain kinds—of which the life-death

While Morison argued for a greater focus on the process

spectrum is perhaps only one—may beof an individual gradually approaching death, Kass

imprecise in itself, or the knowledge obtainable

maintained that the period between life and death shouldof it may be…I am challenging the undue

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Beyond the Twilight Zone: A Comparative History of Brain
Death Policies in Japan and the United States

CBEL Report Volume 4, Issue 1

precision of a definition and of its practical

However, Jonas condemned this proposal, stating thatapplication to an imprecise field…In short, whatsuch an idea could give rise to a “simulated life” thatis here kept going by various artifices must—falls between life and death, and that it was an attemptwith the caution due in this twilight zone—beto prolong this state as long as possible in order to bringequated with “the organism as a whole” named

about various benefits (Jonas 1974). Consequently, thein the classical definition of death much more so,term failed to gain traction or elicit further academic

at least than with any mere separable part of it

debate (Youngner et al. 1985).

(Jonas 1974: 136–137).
Jonas maintained that in situations in which the life-

4. Subsequent Development of Academic Discourse

death spectrum itself is in an “imprecise field,” theRegarding Brain Death in Japandefinition of death should not be applied to this “twilight

In 1992, when the Provisional Commission on Brainzone” before adequately securing the validity of brain

Death submitted a report to the Prime Minister, Japan

death criteria. Both Kass and Jonas were deeply

had made some developmental advances in medical

insightful about the handling of the body during thetechnologies that improved the circulatory dynamics ofperiod between brain death and cardiac death. Similar tobrain-dead patients, thereby prolonging the period

the “alpha period” proposed in Japan, the term “twilightleading to cardiac death. Consequently, concerns werezone” can be understood as a concept representing thisraised about whether attempts to prolong this period

period in the United States.

were necessary, while bioethical discussions to address

However, there is no clear evidence indicating that

this issue were initiated with extraordinary speed. As

these academic discourses had any influence on thesuch, it is worth further exploring developments in thesubsequent creation of the Harvard Criteria. In 1972,

academic discourse surrounding brain death in Japan.

Kass and Alexander M. Capron, a legal scholar,

Published in 1985, the Takeuchi Criteria omitted

published a proposal that equated the spontaneous

children younger than six years of age—who tend to

cessation of brain function with death only when

have a relatively favorable brain death prognosis (i.e.,

traditional cardiac death does not apply due to thelonger “alpha period”)—from its scope. Following theartificial maintenance of respiratory and circulatory

publication of these criteria, Yasuhide Nakamura, afunctions (Capron and Kass 1972). Capron later became

medical scientist, and members of the pediatric science

the secretary-general of the President’s Commission,group at Tokyo Metropolitan Neurological Hospitalwhere he advanced the position that the cessation of

conducted a pioneering study in which they observed

brain function was accepted as the only neurologicalchanges in the pathological conditions of the brain inbasis for the definition of death. In 1974, Willard Gaylin,

two pediatric patients using head computed tomography

a medical scientist, proposed the term “neomort” to(CT) scans: one patient (male, aged one year and threerefer to a brain-dead individual, focusing on themonths) spent 109 days in the “alpha period,” while thepotential of utilizing his or her body (Gaylin 1974).

other (male, aged one year and six months) spent 60
9CBEL Report Volume 4, Issue 1

Hiroyuki Nagai

days in this state (Nakamura et al. 1986). This study

that the families of brain-dead patients seek to prolong

suggested that a deeper understanding of circulatory

the “alpha period” rather than acknowledge patient

dynamics during this period may promote thedeath. As Sugimoto stated:refinement of the aforementioned criteria. As the

Fortunately or unfortunately, brain death is not

authors asserted:

yet recognized as human death in Japan, andThese two patients in our study are excluded

organ transplantation is also unlikely to befrom the [scope of] criteria set forth by the Brain

performed on a large scale for the time being.

Death Study Group of the MHW due to their

Many families wish for physical life extension

ages. However, there is no age limit on the stateeven if the patient is brain dead, so it is often

of illness (i.e., brain death) itself…At least, it isnecessary to keep the body (patient) alive for

not currently possible to deny the possibility thatseveral weeks before they can accept death… Insome kind of nerve control may exist in

developed countries in Europe and the United

circulatory function even after brain death, andStates, when brain death is pronounced, thewe anticipate that we will obtain further insightdecision is made either to harvest the organs oron the circulatory dynamics in the period fromlet the patient die. Thus, it is not possible tobrain death to cardiac death (Nakamura et al.

study the very changes that occur in the brain-

1986: 2146–2147).

dead body. In that sense, we think that our study

A similar study was conducted by Tsuyoshi
Sugimoto, a medical scientist, and the emergency

is important and meaningful (Sugimoto 1995:
118–119).

medicine group at Osaka University following the

However, in opposition to this trend, a bioethics

publication of the Takeuchi Criteria. In 1986, this led tocollaborative at the University of Tokyo initiated a new

the discovery that co-administration of epinephrine ordebate in 1991. Led by Akira Akabayashi, a medical

vasopressin

withscientist, and Masahiro Morioka, a philosopher, thecatecholamine could help maintain the circulatory

collaborative claimed that unnecessarily extending thefunction of brain-dead patients for an average of 24.1

“alpha period” of a brain-dead body might conflict withhours (Yoshioka et al. 1986). By the mid-1990s, they

the ethical principles of the ”dignity of the remains,”

had discovered that even after a patient reaches a state

asserting:(anantidiuretic

hormone)of brain death, their organs—with the exception of the

One assumption is that the “dignity of theliver and lungs—could essentially maintain normal

remains” must be respected. What viewpoint

functioning without any major changes over the courseshould be adopted with regard to the BDBof many months (Sugimoto 1995). Reflecting on the[brain-dead body] when its use involves

history of the University’s technological developments,

significant medical “invasion”? Does thisSugimoto argued that their attempts were only possible

constitute legal “damage” of the body?...Thein Japan, where it is strongly recommended or accepted

concepts of invasion and damage were used10

Beyond the Twilight Zone: A Comparative History of Brain
Death Policies in Japan and the United States

CBEL Report Volume 4, Issue 1

before the notion of BDBs arose. Invasion wasdeath policies in the United States, with a focus on

used in reference to the “brain alive” andcomparing them with those in Japan. In the process

damage was used in reference to the “heartleading to the President’s Council submitting a newdead”… Would the use of a BDB for storage andreport regarding the definition of death in 2008,as a factory be considered a violation of the“Position One”—that is, that brain death should not bedignity of the remains, even though such uses do

recognized as human death—was newly established innot, in themselves, constitute invasion? Is time aa way that reflected Japan’s development of brain deathfactor? The option “the shorter the time of use

criteria, as well as the views based on cases of long-term

the better” may derive from concern about thebrain death. Simultaneously, “Position Two”—which

dignity of the remains (Akabayashi and Morioka

supported neurological criteria in deference to the

1991: S534–S535).

demand for organ donors—was also maintained, thus

The collaborative clearly distinguished the conceptof legal damage based on the moment of cardiac death

resulting in the representation of both positions inpolicymaking.

from that of medical invasion performed on the patient

The President’s Council accelerated its efforts to

before brain death. In this way, the collaborative

discuss brain death policies in 2005, when Edmund D.

attempted to increase the integrity of the arguments ofPellegrino, a medical scientist, was elected chairman.

Bai (i.e., that the process from the onset of brain deathPresenting his arguments to the Council, D. Alanto the end stage of damage is a series of events) and

Shewmon, a medical scientist, had a particularly large

Takeuchi (i.e., that the extent of invasion of brain-deadinfluence on the Council’s 2008 White Paper regarding

patients should be minimized) from a bioethics

controversies in the determination of death (Rubenstein

perspective. In doing so, they presented a framework

et al. 2006). Shewmon (1998) collected 175 cases ofthat could help address the development of advanced

brain death from across the world, all of which involved

technologies, while reducing the concern raised bya duration of one week or longer from the onset of brain

critics—like Sugimoto—that such highly technicaldeath to cardiac death. Citing the Takeuchi Criteria, he

attempts to maintain the circulatory function of the bodysummarized the characteristics of primary andduring the “alpha period” might constitute the futile

secondary lesions as the causes of brain death.

prolongation of that period. In this context, theAccording to this study, 24 of the 56 cases (42.9%) for

challenge was the application and advancement of thewhich sufficient clinical information was available hadarguments of Gaylin and Jonas regarding the

been attributed to primary lesions, while 24 cases

appropriate use and treatment of human bodies.

(42.9%) had been attributed to secondary lesions; theremaining eight cases (14.2%) were due to unknown

5. The Co-Existence of Positions in Supporting andcauses. Based on these findings, Shewmon (1998)

Opposing Brain Death in the United States

advocated that the cessation of brain function does not

This section explores recent developments in brain

directly lead to human death. This study included the11

CBEL Report Volume 4, Issue 1

Hiroyuki Nagai

case of a male patient diagnosed as brain-dead at the age

Shewmon’s theory as powerful support for “Positionof four years and six months. When Shewmon

One.” However, he also conceded that disregarding

introduced this case at a President’s Council meeting in“Position

November 2007, the patient had been in this state forneurological criteria—is unrealistic and dismissible

thirteen and a half years (President’s Council on

considering the social demands surrounding organ

Bioethics 2007). Apart from this case, the main focus ofdonation (Pellegrino 2008). Consequently, Pellegrino

Shewmon’s presentation was on the case of a Japanesesuggested that opportunities to provide organs forboy at Showa University who was brain-dead andtransplantation should be secured, provided that thetransitioning to home care (Abe et al. 2006). As

Dead Donor Rule (DDR)—that is, that the organ is

Shewmon explained:

removed upon the pronouncement of death (Robertson

Two”—which

relieson

traditional

A boy aged six years and four months

1999)—be upheld, by developing methods to keep

experienced acute necrotizing encephalopathy atorgans viable for as long as possible. As such, public

the age of one year and one month. The patient

discussions on brain death converged to comprise bothwas

brain-dead.

supporting and opposing positions in the United States,

However, his heartbeat had been sustained andwith prospects similar to the stance of Japan towards thehe was transferred to a home mechanicaldevelopment of medical technologies (as advocated byventilator therapy at the age of four years andSugimoto in 1995).

clinicallydiagnosedasseven months. Despite his requirement for
pituitary hormone administration and tube

6. Limitations

feeding, he was placed on a home mechanicalThe present analysis was carried out with a focus on theventilator therapy while receiving treatment

intricacies of brain death policies. Therefore, discourses

from his home doctor (Abe et al. 2006: 1682).

regarding relationships between these policies and the

Shewmon showed images of the child to Council

practice of organ transplantation were excluded as being

members and discussed his physical development. He

beyond the scope of this study.

effectively delivered his perspective through thisJapanese long-term brain death case, arguing that “Any7. Conclusion

biologist would say, ‘Well, of course this is a living

This study compared the processes that led to andorganism. This is a comatose apneic living organism’”shaped the development of brain death criteria in Japan(President’s Council on Bioethics 2007).

and the United States. Compared to the United States,

In his personal statement appended to the 2008

Japan established medical evidence-based criteria in areport, Pellegrino referred to Jonas’ argument, whichsmooth and sequential manner, initially focusing onstates that an empirical understanding is required aboutcases with a short period between the onset of brain

the transition from life to death; that is, the “imprecise

death and cardiac death. What this analysis shows is thatfield” or “twilight zone.” Similarly, he positioned

experts in the twenty-first century United States

12Beyond the Twilight Zone: A Comparative History of Brain
Death Policies in Japan and the United States

CBEL Report Volume 4, Issue 1

gradually caught up with the pioneering efforts ofCapron, A. M. & Kass, L. R. (1972). A Statutory Definition of
the Standards for Determining Human Death: An
Appraisal and a Proposal. University of Pennsylvania
Law Review, 121, 87–118.
Emanuel, L. L. (1995). Reexamining Death: The Asymptotic
Model and a Bounded Zone Definition. Hastings Center
Report, 25 (4), 27–35.
Gaylin, W. (1974). Harvesting the Dead: The Potential for
Recycling Human Bodies. Harper's Magazine, 249, 23–
30.
Jonas, H. (1974). Philosophical Essays: From Ancient Creedto Technological Man. (Upper Saddle River, NJ:
Prentice-Hall).
Jonsen, A. R. (1998). The Birth of Bioethics. (New York:
Oxford University Press).
Kass, L. R. (1971). Death as an Event: A Commentary on
Robert Morison. Science, 173, 698–702.
Kato, I., Takeuchi, K., Ota, K. & Niimi, I. (1986). Noushi
Zouki Isyoku to Jinken (Brain Death/Organ
Transplantation and Human Rights). (Tokyo: Yuhikaku
Publishing). (in Japanese).
Kimura, R. (1991). Japan’s Dilemma with the Definition of
Death. Kennedy Institute of Ethics Journal, 1, 123–131.
Leflar, R. B. (1996). Informed Consent and Patients’ Rights inJapan. Houston Law Review, 33, 1–112.
Lock, M. M. (2002). Twice Dead: Organ Transplants and theReinvention of Death. (Oakland, CA: University ofCalifornia Press).
Ministry of Health and Welfare (Japan). (1985). Guidelines
and Criteria for Diagnosis of Brain Death. Journal of theJapan Medical Association, 94, 1949–1972. (inJapanese).
Morioka, M. (2001). Reconsidering Brain Death: A Lesson
from Japan’s Fifteen Years of Experience. Hastings
Center Report, 31 (4), 41–46.
Morison, R. S. (1971). Death: Process or Event. Science, 173,
694–698.
Nakagawa, T. A., Ashwal, S., Mathur, M., Mysore, M. & The
Society of Critical Care Medicine, Section on Critical
Care and Section on Neurology of the American
Academy of Pediatrics, and the Child Neurology Society.
(2011). Guidelines for the Determination of Brain Deathin Infants and Children: An Update of the 1987 Task
Force Recommendations. Pediatrics, 128, e720–e740.
Nakamura, Y., Sugaya, A., Nagano, T., Mizuguchi, M.,
Kurihara, E., Mizuno, Y., Tamagawa, K., Komiya, K. &Shimizu, H. (1986). Temporal Changes in CT in
Pediatric Long-Term Survival Cases After “Brain
Death.” Journal of the Japan Pediatric Society, 90,
2139–2149. (in Japanese).
Pellegrino, E. D. (2008). Personal Statement. In President’s
Council on Bioethics, Controversies in the
Determination of Death: A White Paper [pp. 107–121].
(Washington, DC: President’s Council on Bioethics).

twentieth-century Japan, including technical advancesthat had extended the “alpha period” and thedevelopment of measures to address them. Such an
attempt by bioethics pioneers to understand the“twilight zone” holds a lesson for future generations,particularly from the perspective of promotinginternational

communication,

collaboration,andconsensus-building.

References
Abe, Y., Oto, H., Saito, T., Morita, K., Furuta, A., Matsumoto,M., Watanabe, S., Tatsuno, M. & Itabashi, K. (2006).
More than Five Years Survival Case of ChronicallyBrain-Dead Infant Transferred to Home Mechanical
Ventilator Therapy. Journal of the Japan PediatricSociety, 110, 1680–1682. (in Japanese).
Ad Hoc Committee of the Harvard Medical School to
Examine the Definition of Brain Death. (1968). A
Definition of Irreversible Coma: Report of the Ad Hoc
Committee of the Harvard Medical School to Examine
the Definition of Brain Death. Journal of the American
Medical Association, 205, 337–340.
Akabayashi, A. & Morioka, M. (1991). Ethical Issues Raisedby Medical Use of Brain-Dead Bodies in the 1990s.
BioLaw, 2, S531–S538.
American Academy of Pediatrics, Task Force on Brain Death.
(1987). Report of Special Task Force: Guidelines for theDetermination of Brain Death in Children. Pediatrics, 80,
298–300.
An Appraisal of the Criteria of Cerebral Death. A Summary
Statement. A Collaborative Study. (1977). Journal of theAmerican Medical Association, 237, 982–986.
Bagheri, A. (2003). Criticism of “Brain Death” Policy inJapan. Kennedy Institute of Ethics Journal, 13, 359–372.
Bai, K. (1968). Legal Proposal for Heart Transplantation.
Asahi Journal, 10 (3), 18–23. (in Japanese).
Bai, K. (1970). Defining “Death” and Certifying “Death”:
From the Perspective of the Roles of Physicians,
Lawyers, and the General Population (on the
Determination of Death [Symposium]). Juntendo
Medical Journal, 16, 103–111. (in Japanese).
Beecher, H. K. (1969). Scarce Resources and Medical
Advancement. Daedalus, 98, 275–313.
Bernat, J. L., Culver, C. M. & Gert, B. (1981). On the
Definition and Criterion of Death. Annals of Internal
Medicine, 94, 389–394.

13

CBEL Report Volume 4, Issue 1

President’s Commission for the Study of Ethical Problems in
Medicine
andBiomedical
andBehavioral
Research. (1981). Defining Death: A Report on the
Medical, Legal and Ethical Issues in the Determinationof Death. (Washington, DC: President’s Commission for
the Study of Ethical Problems in Medicine andBiomedical and Behavioral Research).
President’s Council on Bioethics. (2007). Transcripts, Session
5: Response to the Council’s White Paper,“Controversies in the Determination of Death.”(Washington, DC: President’s Council on Bioethics).
Retrieved January 8, 2021, fromhttps://bioethicsarchive.georgetown.edu/pcbe/transcript
s/nov07/session5.html.
President’s Council on Bioethics. (2008). Controversies in the
Determination of Death: A White Paper. (Washington,
DC: President’s Council on Bioethics).
Provisional Commission for the Study on Brain Death andOrgan Transplantation. (1991). The Overview ofProceedings of the 6th Provisional Commission for the
Study on Brain Death and Organ Transplantation. Shingi
Dayori, 3, 8–48. (in Japanese).
Provisional Commission for the Study on Brain Death andOrgan Transplantation. (1992). Important Issues
Regarding Brain Death and Organ Transplantation: A
Report. Jurist, 1001, 34–48. (in Japanese).
Refinements in Criteria for the Determination of Death: An
Appraisal: A Report by the Task Force on Death andDying of the Institute of Society, Ethics, and the Life
Sciences. (1972). Journal of the American Medical
Association, 221, 48–53.
Robertson, J. A. (1999). Delimiting the Donor: The Dead
Donor Rule. Hastings Center Report, 29 (6), 6–14.
Rubenstein, A., Cohen, E. & Jackson, E. (2006). The
Definition of Death and the Ethics of Organ Procurementfrom the Deceased: Staff Discussion Paper. (Washington,
DC: President’s Council on Bioethics). Retrieved
January 8, 2021, fromhttps://bioethicsarchive.georgetown.edu/pcbe/backgrou
nd/rubenstein.html.
Shewmon, D. A. (1998). Chronic “Brain Death” MetaAnalysis and Conceptual Consequences. Neurology, 51,
1538–1545.
Singer, P. (1994). Rethinking Life and Death: The Collapse of
Our Traditional Ethics. (New York: St. Martin’s Press).
Sugimoto, T. (1995). Sei to Shi no Hazama de: Kyukyu I 30nen no Kiseki (Between Life and Death: The Path of an
Emergency Physician Over 30 Years). (Osaka: Nagai
Shoten). (in Japanese).
Takeuchi, K. & Bai, K. (1985). What Do Brain Death Surveys
Tell Us? Significance of Reports by “the Brain Death
Study Group” of the Ministry of Health and Welfare.
Jurist, 844, 38–50. (in Japanese).
Takeuchi, K., Takeshita, H., Takakura, K., Shimazono, Y.,

14

Hiroyuki Nagai

Handa, H., Gotoh, F., Manaka, S. & Shiogai, T. (1987).
Evolution of Criteria for Determination of Brain Deathin Japan. Acta Neurochirurgica, 87 (3–4), 93–98.
Takeuchi, K., Iinuma, K., Ogawa, Y., Kamoshita, S., Sakai, H.,
Satoh, H., Shiogai, T., Shimazaki, S., Sugimoto, H.,
Takeshita, H., Tanaka, H., Nihei, K., Nukui, H.,
Matsumoto, S., Miyasaka, K., Momma, K. & Watanabe,
Y. (2002). Report on the Criteria for the Determinationof Brain Death in Children. Japan Medical Association
Journal, 45, 291–307.
Tokizane, T. (1975). Seimei no Songen wo Motomete (Seeking
the Sanctity of Life). (Tokyo: Misuzu Shobo). (inJapanese).
Truog, R. D. (1997). Is it Time to Abandon Brain
Death? Hastings Center Report, 27 (1), 29–37.
Ueki, K. (1974). Criteria for the Determination of “Brain
Death” in Acute Major Primary Lesions of the Brain.
Japan Medical Journal, 2636, 31–34. (in Japanese).
Wijdicks, E. F. (1995). Determining Brain Death in Adults.
Neurology, 45, 1003–1011.
Wijdicks, E. F. (2002). Brain Death Worldwide: Accepted
Fact but No Global Consensus in Diagnostic Criteria.
Neurology, 58, 20–25.
Wijdicks, E. F., Varelas, P. N., Gronseth, G. S. & Greer, D. M.
(2010). Evidence-Based Guideline Update: Determining
Brain Death in Adults: Report on the Quality Standardsof the Subcommittee of the American Academy of
Neurology. Neurology, 74, 1911–1918.
Yoshioka, T., Sugimoto, H., Uenishi, M., Sakamoto, T.,
Sadamitsu, D., Sakano, T. & Sugimoto, T. (1986).
Prolonged Hemodynamic Maintenance by the Combined
Administration of Vasopressin and Epinephrine in Brain
Death: A Clinical Study. Neurosurgery, 18, 565–567.
Youngner, S. J., Allen, M., Bartlett, E. T., Cascorbi, H. F., Hau,
T., Jackson, D. L., Mahowald, M. B. & Martin, B. J.
(1985). Psychosocial and Ethical Implications of Organ
Retrieval. New England Journal of Medicine, 313, 321–
324.

Received 22 August 2020
Final version accepted 19 February 2021