Legal Issues In Pronouncing Death

The following is a revision and update of the first-edition entry "Death, Definition and Determination of, II. Legal Aspects of Pronouncing Death" by the same author.

The capability of biomedicine to sustain vital human functions artificially has created problems not only for medical practitioners but for the public and its legal institutions as well. In some cases, determining that people have died is no longer the relatively simple matter of ascertaining that their heart and lungs have stopped functioning. Mechanical respirators, electronic pacemakers, and drugs that stimulate functioning and affect blood pressure can create the appearance of circulation and respiration in what is otherwise a corpse. The general public first recognized the need to update public policy concerning when and how death could be declared when Christiaan Barnard performed the first human-to-human heart transplant in Cape Town, South Africa, on December 3, 1967. Beyond amazement at the technical feat, many people were astonished that a heart taken from a woman who had been declared dead conferred life on a man whose own heart had been removed.

Cardiac transplantation provides the most dramatic illustration of the need for clear standards to classify the outcomes of intensive medical support (e.g., respirators). But only a handful of the moribund, unconscious patients maintained through intensive support long after they formerly would have ceased living become organ donors (U.S. President's Commission). Sometimes such medical intervention is ended because it has succeeded in enabling the patient to recover; more often, it is terminated because the patient's bodily systems have collapsed so totally that circulation and respiration cannot be maintained. But for a significant number of patients, artificial support can be continued indefinitely with no prospect that consciousness will ever return. For some of this latter group of patients— especially those who can eventually be weaned from the respirator and require only nutrition and hydration by tube—the question arises whether to withdraw treatment and allow death to occur. But for others who have suffered great brain damage, the need arises to recognize that death has occurred and that further attempts to keep the patient alive are therefore no longer appropriate even before the point (usually within several weeks) when physiological processes in the body can usually no longer be maintained.

Beginning in the 1960s, the response of the medical profession was to develop new criteria, such as those articulated in 1968 by an ad hoc committee at Harvard Medical School. Experts in the United States tend to rely on certain clinical signs of the absence of any activity in the entire brain (Ad Hoc Committee); British neurologists focus on the loss of functioning in the brain stem, while doctors in certain European countries search for conditions for brain function, such as intracranial blood circulation (Van Till). Despite differences in technique, the medical profession arrived at a consensus that the total and irreversible absence of brain function is equivalent to the traditional cardiorespiratory indicators of death (Medical Consultants).

The story of the law's response to these new medical criteria can be divided into three parts. The first, largely played out in the late 1960s and the 1970s, concerned an issue of process—how ought society respond to the divergence between new medical precepts and practices, on the one hand, and the common understanding of the lay public of rules embodied in custom and law, on the other? (Anglo-American common law, for example, had traditionally defined death as the total cessation of all vital functions.) The second phase, from the 1970s through the 1980s, centered on the specific changes being made in the law. In the third period, which is still continuing, commentators (principally philosophers and a few physicians) have raised questions about the appropriateness of the legal standards that have been adopted and called for various changes in those standards.

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