Need to catch up? My first article on this topic can be found here.
Many questions presented in the Journal were thought-podiums for philosophical meanderings having little to do with reality, science, or medicine. However, the issues are presented as real and pressing conundrums. Besides the scientific difficulties of connecting two spinal cords, and their nervous and vascular connections, there are issues of host-graft rejection and immunosuppression, which are never even raised. Further, the value 
of targeting such surgery for individuals with quadriplegia, as some authors do, is contraindicated by far safer and currently available brain-to-computer interface technology (exoskeletons, computer-driven wheel-chairs, etc.), rendering head-body transplants a rather far-fetched idea. So, is this even a real issue?
Science, Law, Religion, Philosophy: How Do We Decide?
Assuming we want to discuss the issue – for whatever reason– we should agree on a viable, valid, broadly acceptable framework to arbitrate proposed solutions. Various methodologies can address the morality or ethics of new technology –but different approaches often result in different answers, some of which are legally nonsensical, exemplified by some of the Journal’s authors relying on Confucianism or pristine Western philosophy.
Consider an extrinsic example: using philosophy to address legal issues arising from other biotech issues, such as the personhood of a robot and whether it is amenable to suit. Ben Franklin, ever-the-pragmatist, surely would have been amused: philosopher-proponents argue that since you can sue a corporation that isn’t a person, likewise, you can sue a robot. As a lawyer, I suggest that if you want to sue the robot, person or not, it better have a bank account from which you can collect. (Something no one thinks to mention).
Lawyers, scientists, and laypeople are swept away by exciting and sexy projects generated by the magic of technology, suspending disbelief of the apparent flawed claims of feasibility or propriety, disregarding established scientific or legal principles. This flight-of-fancy reasoning is reflected in the Journal’s discussion on head transplants.
The Flaws of a Mixed Philosophical-Religious Inquiry
Philosophy Professor Jason Eberl concludes that head transplants should be unethical – Ok, so far. It’s his reasoning that sprouts suspect shoots. He begins by claiming that a human is a living animal by virtue of its soul, a concept with which I wholeheartedly agree. Eberl then says the soul vivifies the body, which is essential to whom we are as humans. To an extent, that’s also true. But then he claims the soul is tethered to the body as the basis for his argument.
When you invoke the soul, you invoke religious doctrine. Most religious doctrine asserts that the soul expires on cessation of breathing, regardless of the functionality of the rest of the physical corpus. This belief contradicts Eberl’s premise, illustrating that his view is a rather personal gloss, exemplifying the problems of using an undefined philosophical inquiry to make real decisions requiring broad buy-in.
Who Cares What Confucius Says?
Another source of confusion raised by the philosophically-driven inquiry are questions regarding the location of the seat of consciousness to determine the ethical propriety of head transplants, as determined by Confucian thought. Using this philosophy, authors Ruping Fan and Liam Bian claim the newly anastomosed entity is an entirely different, third entity. The freshly created organism derives its identity from a mind-body connection, amplified by its social and familial identity. Such claims are untethered from the reality of law and science (which unquestionably holds that the brain is the seat of consciousness, memory, experience, and logic, and hence personal identity) and differ from commonly accepted Western thought.
“Confucianism espouses a kind of relationalism: humans individuals are relational individuals, and the identity of an individual cannot be established without his/her social relations, especially familial relations, appreciated”
Extrapolation of non-sense onto the nonsensical, as defined by law:
Worse, perhaps, is that this conception of the familial intersection with the new entity becomes the predicate for more intricate problems. After asserting the familial connection with a new entity, Philosopher Fan and psychologist Biam, worry that the family of both the head and body donor would each claim a close-familial relationship with the post-transplant individual. They claim this would entitle both families to “rights,” including medical decision-making and inheritance.
American philosopher, Professor Ana Itlis, raises similar issues based on mainstream Western philosophy and ethics, relying on the Belmont guidelines for human research and the UNESCO Universal Declaration on Bioethics and Human Rights[2]. While bemoaning the lack of a fundamental emphasis on philosophy to answer complex philosophic questions such as who survives whole-body/head transplants, she argues that without that knowledge, “we cannot know how appropriately to apply ethical criteria to medical research involving such controversial surgical innovation, much less how to fashion public policy to regulate its application.”
One wonders if this approach is the correct one to be employed, or to paraphrase a legal maxim, does the approach assume facts not credible from the outset for philosophical introspection?
“in the case of the whole-body/head transplant, which person, whose personal integrity, or whose body is at stake? Who may be benefited or harmed? Who ought to give informed consent?” And who ought to be left untouched if permission is not obtained.”
Professor Itlis is correct in worrying about the dignity, respect, and integrity of the head and body donors and the newly formed entity. She is also right in noting that “we must first have a firm grasp regarding who survives the surgery and the identity of that person.” But like specific arithmetic calculations, the order of the operation defines the outcome, and the question of who survives the surgery – is straightforward if one relies on science and law -and has a different outcome than the philosophical route.
Before engaging in the philosophical issues raised by the new entity, we should start at the beginning. First things first.
Who survives the initial surgery, head or torso?
The operative question (no pun intended) is not who survives the surgery – but who survives the initial surgery of the three surgeries (plural) in question?. Before donation of both head or body, the issue of informed consent resides with the individual donor. Both body and head donors must consent. This is fundamental law. Then, and only then, can the third surgery, the coupling operation, occur. But at the moment of donation, there is a change in the legal status of one of these parties.
Shortly after the head is severed, the body is legally dead.
According to American case law and/or religious custom, most definitions of death turn on either brain death or cessation of breathing. Without a head, the body-donor legally would no longer be alive. To be clear, the body donor was legally dead before the coupling operation began. At this point, only the head donor, with its brain “still alive” (i.e., having brain waves and hooked up to a heart lung machine, so it is “breathing”), has rights and the ability to furnish further informed consent for the coupling operation. (From a practical perspective, the consent could be obtained before the decapitation procedure).
Issues addressing family rights are now quickly circumvented by the operation of law: The body donor’s family has none. Nor does the body’s family have rights over reproduction by the new entity. (That might be addressed before donation via contract, as ghoulish as it sounds). But laws governing the validity of wills and intestacy (dying without a will) generally bar post-death instructions. In short, the laws of intestacy or estate law would rule in such cases, not bioethical or philosophical considerations. They would overwhelmingly favor the brain donor (and their family).
Buried within some articles are discussions transcending head-transplants with more universal applications – such as the mind-body connection – which in a less sensationalized context might prove illuminating and useful. But for now, a word to the wise philosopher- please call your nearest lawyer and doctor before engaging in thought experiments relating to issues with legal ramifications, such as life and death.
[1] The UNESCO Universal Declaration on Bioethics and Human Rights and the Belmont Commission provides detailed and practical principles for assessing comparative rights and conduct raising bioethical principles. Expanding on the American approach, which predicates decisions on four principles (autonomy, beneficence, non-maleficence, and justice), the UNESCO Declaration contains over 30 principles.
