A Statutory Definition of the Standards for Determining Human Death

An Appraisal and a Proposal
  • Alexander M. Capron
  • Leon R. Kass


In recent years, there has been much discussion of the need to refine and update the criteria for determining that a human being has died.1 In light of medicine’s increasing ability to maintain certain signs of life artificially2 and to make good use of organs from newly dead bodies, new criteria of death have been proposed by medical authorities.3 Several states have enacted or are considering legislation to establish a statutory “definition of death,”4 at the prompting of some members of the medical profession who apparently feel that existing, judicially—framed standards might expose physicians, particularly transplant surgeons, to civil or criminal liability.5 Although the leading statute in this area6 appears to create more problems than it resolves,7 some legislation may be needed for the protection of the public as well as the medical profession, and, in any event, many more states will probably be enacting such statutes in the near future.8


Supra Note Spontaneous Respiration Human Death Transplant Surgeon Irreversible Brain Damage 
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  1. 5.
    See, e.g., Taylor, A Statutory Definition of Death in Kansas, 215 J.A.M.A. 296 (1971) Getter to the editor), in which the principal draftsman of the Kansas statute states that the law was believed necessary to protect transplant surgeons against the risk of “a criminal charge, for the existence of a resuscitated heart in another body should be excellent evidence that the donor was not dead [under the “definition” of death then existing in Kansas] until the operator excised the heart.” Cf. CrossRefGoogle Scholar
  2. Kapoor, Death & Problems of Transplant, 38 Man. B. News 167, 177 (1971).Google Scholar
  3. Baker, Liability and the Heart Transplant, 6 Houston L. Rev. 85, 97-101 (1968). The specter of civil liability was raised in Tucker v. Lower, a recent action brought by the brother of a heart donor against the transplantation team at the Medical College of Virginia. See notes 42-50 infra & accompanying text.Google Scholar
  4. 14.
    Rutstein, The Ethical Design of Human Experiments, 98 Daedalus 523, 526 (1969). Leaders of the Netherlands Red Cross Society’s Organ Transplantation Committee argue that only “total absence of the brain’s functional capacity” and not “irreversible coma” indicates that death has occurred and state the Dutch position that the Harvard criteria “are grounds for stopping treatment and letting the patient die,” but not for declaring death. Rot & van Till, Neocortical Death after Cardiac Arrest, 2 Lancet 1099-1100 (1971) (letter to the editor).Google Scholar
  5. 15.
    See, e.g., Arnold, Zimmerman & Martin, Public Attitudes and the Diagnosis of Death, 206 J.A.M.A. 1949 (1968) [hereinafter cited as Arnold]CrossRefGoogle Scholar
  6. Biörck, When is Death?, 1968 Wis. L. Rev. 484, 490–491; N.Y. Times, Sept. 9, 1968, at 23, col. 1 (quoting Drs. F. C. Spencer & J. Hardy); The Heart: Miracle in Cape Town, Newsweek, Dec. 18, 1967, at 86-87.Google Scholar
  7. 16.
    [C] ertain actions by transplant surgeons in establishing time of death on death certificates and hospital records have shaken public confidence. Coroners have denounced them in the press for signing a death certificate in one county when the beating heart was removed a day later in a far-off city. The public wonders what the “item” was that was transplanted across the state line and later registered as a person in the operating room record. Corday, Life-Death in Human Transplantation, 55 A.B.A.J. 629, 632 (1969).Google Scholar
  8. 20.
    See, e.g., Kennedy, The Kansas Statute on Death: An Appraisal, 285 New Eng. J. Med. 946 (1971)CrossRefGoogle Scholar
  9. Kennedy, What and When is Death?, 204 J.A.M.A. 539, 540 (1968) (editorial).Google Scholar
  10. 22.
    See, e.g., Kennedy, supra note 20, at 947; Berman, The Legal Problems of Organ Transplantation, 13 Vill. L. Rev. 751, 754 (1968)Google Scholar
  11. Sanders & Dukeminier, Medical Advance and Legal Lag: Hemodialysis and Kidney Transplantation, 15 U.C.L.A.L. Rev. 357, 409 (1968) [hereinafter cited as Sanders]; National Conference of Commissioners on Uniform State Laws, Handbook and Proceedings of the Annual Conference 192 (1968); cf. Google Scholar
  12. Sadler, Sadler & Stason, The Uniform Anatomical Gift Act: A Model for Reform, 206 J.A.M.A. 2501 (1968). The ad hoc Harvard Committee, composed largely of physicians, came to the same conclusion. See Irreversible Coma, supra note 3, at 339.CrossRefGoogle Scholar
  13. 29.
    Matte, Law, Morals, and Medicine: A Method of Approach to Current Problems, 13 J. For. Sci. 318, 331-332 (1968). See also note 19 supra.Google Scholar
  14. 54.
    Completed in July 1968 by the Commissioners on Uniform State Laws and approved by the American Bar Association in August of that year, the Uniform Anatomical Gift Act was adopted with only minor changes in 40 jurisdictions including the District of Columbia in 1969; by the end of 1971, the Act had been adopted in the remaining 11 states. For a detailed discussion of the national acceptance of the Act see Sadler, Sadler & Stason, Transplantation and the Law: Progress Toward Uniformity, 282 New Eng. J. Med. 717 (1970). See also CrossRefGoogle Scholar
  15. Brickman, Medico-Legal Problems with the Question of Death, 5 Calif. W.L. Rev. 110, 122 (1968) (urging Commissioners to draft uniform act on “the procedures for determining death”).Google Scholar
  16. 55.
    This is, of course, not to say that a judge faced with a case to decide should hold back from engaging in the sort of analysis, or reaching the conclusions about a proper “definition,” presented here. As Professor Clarence Morris once observed, the age-old argument that a legislature has a “superior opportunity” to frame general rules should not foreclose judicial reform of the law where the legislature has failed to act. A judge has, after all, “no reliable way of knowing” that legislative action will ever be forthcoming, and if he acts in a way the legislature finds erroneous, his mistake can be set right by statute. Morris, Liability for Pain and Suffering, 59 Colum. L. Rev. 476, 482 (1959).CrossRefGoogle Scholar
  17. 65.
    See Potter, The Paradoxical Preservation of a Principle, 13 Vill. L. Rev. 784, 791 (1968): What type of questions are entailed in the debate concerning when a comatose patient should be declared dead? Medical questions and answers are only one element of the decisionmaking process. Medical skill may be used to establish that a patient has now entered and is likely to remain in a certain condition. But medical personnel along with the other members of the community must then ask: “What are we to do with patients in this condition?” The answer to that question does not flow directly from any medical knowledge. It is a question of social policy which must be decided by the entire community. Implementation of the communal policy may be left in the hands of physicians, but they act as agents of the communal conscience. See generally Note, Death with Dignity: A Recommendation for Statutory Change, 22 U. Fla. L. Rev. 368 (1970); Fletcher, Legal Aspects of the Decision Not to Prolong Life, 203 J.A.M.A. 65 (1968)Google Scholar
  18. Sharpe & Hargest, Lifesaving Treatment for Unwilling Patients, 36 Fordham L. Rev. 695 (1968); Note, The Dying Patient: A Qualified Right to Refuse Medical Treatment, 7 J. Farn. L. 644 (1967); Elkinton, The Dying Patient, The Doctor and the Law, 13 Vill. L. Rev. 740 (1968); Biörck, supra note 15, at 488-490.Google Scholar
  19. 66.
    The ease with which the two questions can become confused is demonstrated by the following “general definition of human death” proposed in Halley & Harvey, Medical vs. Legal Definitions of Death, 204 J.A.M.A. 423, 425 (1968); Death is irreversible cessation of all of the following: (1) total cerebral function, (2) spontaneous function of the respiratory system, and (3) spontaneous function of the circulatory system. Special circumstances may, however, justify the pronouncement of death when consultation consistent with established professional standards have been obtained and when valid consent to withhold or stop resuscitative measures has been given by the appropriate relative or legal guardian. The authors seem to have realized the mistake in making the state of being dead (rather than the acceptance of imminent death) depend on the “consent” of a relative or guardian, and this aspect of the “definition of death” is absent from their subsequent writings. See, e.g., Halley & Harvey, Law-Medicine Comment: The Definitional Dilemma of Death, 37 J. Kan. B. Ass’n 179, 185 (1968); cf. D. Meyers, supra note 28, at 135-136 (criticizing Halley and Harvey’s second definition for its internal inconsistency).CrossRefGoogle Scholar
  20. 85.
    Mills, The Kansas Death Statute: Bold and Innovative, 285 New Eng. J. Med. 968 (1971).CrossRefGoogle Scholar
  21. 95.
    Brierley, Adams, Graham & Simpsom, Neocortical Death After Cardiac Arrest, 2 Lancet 560, 565 (1971) [hereinafter cited as Brierley]. In addition to a flat (isoelectric) electroencephalogram, a “neuropathological examination of a biopsy specimen... from the posterior half of a cerebral hemisphere” provides further confirmation. Id. The editors of a leading medical journal question “whether a state of cortical death can be diagnosed clinically.” Editorial, Death of a Human Being, 2 Lancet 590 (1971). Cf. note 14 supra.Google Scholar
  22. 96.
    Brierley and his colleagues report two cases of their own in which the patients each survived in a comatose condition for five months after suffering cardiac arrest before dying of pulmonary complications. They also mention two unreported cases of a Doctor Lewis, in one of which the patient survived for 2¼ years. Brierley, supra note 95, at 565. Cf. Google Scholar
  23. Halley & Harvey, Medical vs. Legal Definition of Death, 204 J.A.M.A. 423 (1968).CrossRefGoogle Scholar

Copyright information

© Plenum Press, New York 1976

Authors and Affiliations

  • Alexander M. Capron
    • 1
    • 2
    • 3
  • Leon R. Kass
    • 4
    • 5
    • 6
  1. 1.University of PennsylvaniaUSA
  2. 2.Swarthmore CollegeUSA
  3. 3.Yale UniversityUSA
  4. 4.Committee on the Life Sciences and Social PolicyNational Research Council-National Academy of SciencesUSA
  5. 5.University of ChicagoUSA
  6. 6.Harvard UniversityUSA

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