Reconsidering conscience through exemption from brain death determination in the United States

Brain death has been recognized as human death worldwide. Nevertheless, patients can be exempted from brain death determination in several areas in the world for conscientious reasons, even when they are apparently brain dead. In these areas, religious (and moral) objections to death determination based on brain death definition are upheld. For some, however, this upholding is interpreted to be applicable to other types of objections. But this expansive interpretation appears strange, considering that the particular quality of conscience has enabled the legal recognition of objection to brain death determination. Medical professionals have to decide whether and to what extent certain types of such objections should be accommodated. This paper, primarily based on literature research, discusses the obscurities in conscientious objection to brain death determination. For analytical purposes, two arguments for exemption are distinguished. The first refers to exemption enabled by the particular quality of conscience. The second is exemption based on autonomy, irrespective of its strength and/or sincerity. Then, two effects of conscientious objection to brain death are distinguished from each other: the affirmative effect enforces exemption and the negative effect excludes other reasons. The lack of emphasis on the latter is often based on analogy to exemption from military service and others. I will argue that reference to military service court decisions has not necessarily solved the problems but has instead smuggled into healthcare extrinsic confusions from previous court decisions. In so doing, this paper attempts to shed some light on the roles of conscience of patients.