Legal Definitions of Death

Here are a variety of laws and proposals for laws concerning the definition foe human death.

UNIFORM DETERMINATION OF DEATH ACT 

This Act provides comprehensive bases for determining death in all situations. It is based on a ten-year evolution of statutory language on this subject. The first statute passed in Kansas in 1970. In 1972, Professor Alexander Capron and Dr. Leon Kass refined the concept further in "A Statutory Definition of the Standards for Determining Human Death: An Appraisal and a Proposal," 121 Pa. L. Rev. 87. In 1975, the Law and Medicine Committee of the American Bar Association (ABA) drafted a Model Definition of Death Act. In 1978, the National Conference of Commissioners on Uniform State Laws (NCCUSL) completed the Uniform Brain Death Act. It was based on the prior work of the ABA. In 1979, the American Medical As­sociation (AMA) created its own Model Determination of Death statute. In the meantime, some twenty-five state legislatures adopted statutes based on one or another of the existing models. 

The interest in these statutes arises from modern advances in life­saving technology. A person may be artificially supported for res­piration and circulation after all brain functions cease irreversibly. The medical profession, also, has developed techniques for deter­mining loss of brain functions while cardio respiratory support is administered. At the same time, the common law definition of death cannot assure recognition of these techniques. The common law standard for determining death is the cessation of all vital functions, traditionally demonstrated by "an absence of spontaneous respira­tory and cardiac functions." There is, then, a potential disparity between current and accepted biomedical practice and the common law. 

The proliferation of model acts and uniform acts, while indicating a legislative need, also may be confusing. All existing acts have the same principal goal-extension of the common law to include the new, techniques for determination of death. With no essential dis­agreement on policy, the associations which have drafted statutes met to find common language. This Act contains that common lan­guage, and is the result of agreement between the ABA, AMA, and NCCUSL. 

Part (1) codifies the existing common law basis for determining death-total failure of the cardio respiratory system. Part (2) extends the common law to include the new procedures for determination of death based upon irreversible loss of all brain functions. The overwhelming majority of cases will continue to be determined ac­cording to part (1). When artificial means of support preclude a determination under part (1), the Act recognizes that death can be determined by the alternative procedures.  

"Uniform Determination of Death Act" developed jointly by the National Conference on Commissioners of Uniform State Law, the American Medical Association and the American Bar Association, approved October 19, 1980 and February 10, 1981. 

                Under part (2), the entire brain must cease to function, irreversibly. The “entire brain” includes the brain stem, as well as the neocortex. The concept of “entire brain” distinguishes determination of death under this Act from “neocortical death” or “persistent vegetative state.” These are not deemed valid medical or legal bases for determining death. 

This Act also does not concern itself with living wills, death with dignity, euthanasia, rules on death certificates, maintaining life sup­port beyond brain death in cases of pregnant women or of organ donors, and protection for the dead body. These subjects are left to other law. 

This Act is silent on acceptable diagnostic tests and medical pro­cedures. It sets the general legal standard for determining death, but not the medical criteria for doing so. The medical profession remains free to formulate acceptable medical practices and to utilize new biomedical knowledge, diagnostic tests, and equipment. 

It is unnecessary for the Act to address specifically the liability of persons who make determinations. No person authorized by law to determine death, who makes such a determination in accordance with the Act, should, or will be, liable for damages in any civil action or subject to prosecution in any criminal proceeding for his acts or the acts of others based on that determination. No person who acts in good faith, in reliance on a determination of death, should, or will be, liable for damages in any civil action or subject to prosecution in any criminal proceeding for his acts. There is no need to deal with these issues in the text of this Act. 

Time of death, also, is not specifically addressed. In those instances in which time of death affects legal rights, this Act states the bases for determining death. Time of death is a fact to be determined with all others in each individual case, and may be resolved, when in doubt, upon expert testimony before the appropriate court. 

Finally, since this Act should apply to all situations, it should not be joined with the Uniform Anatomical Gift Act so that its appli­cation is limited to cases of organ donation.

1        §1. [Determination of Death.] An individual who has sustain ­

2          either (1) irreversible cessation of circulator and respiratory­

3          functions, or (2) irreversible cessation of all functions

4        of the entire brain, including the brain stem, are dead. A

­5      determination of death must be made in accordance with ­

6          accepted medical standards. 

1        §2. [Uniformity of Construction and Application.] This Act

2          shall be applied and construed to effectuate its general purpose

3          to make uniform the law with respect to the subject of this Act

4          among states enacting it. 

1          §3. [Short Title.] This Act may be cited as the Uniform Determination of Death Act.   

Legislative Proposals For the Definition of Death 

1. New York State

An Act to amend the public health law, in relation to a de­finition of death. The People of the State of New York, represented in Senate and Assembly, do-enact as follows: Section 1. The public health law is hereby amended by adding t Hereto a new section, to be section forty-one hundred forty-a, to read as follows: 

4140-a. Deaths: Definition of death. A person shall be pronounced dead if in the announced opinion of a duly licensed physician based on prevailing standards of medical practice such person has experienced an irreversible cessa­tion of. spontaneous respiratory and circulatory functions. If, the use of artificial means of support precludes a deter­mination that these functions have ceased, a person shall be pronounced dead if in the announced opinion of a duly licensed physician based on prevailing standards of medical practice such person has experienced a total and irreversible cessation of brain function, unless the physician receives written notice from a parent, spouse or next of kin of such person that such pronouncement conflicts with such person's beliefs. 

2. This act shall take effect immediately. 

2. Missouri  

An Act - providing means for determining whether a person is dead and when death occurred, and providing the purposes for which the means shall be used. 

Be it enacted by the General Assembly of the State of Missouri, as follows:

Section 1. 1. A person shall be considered dead if in the announced opinion of a physician, based on ordinary standards of medical practice, he has experienced an irreversible cessation of spontaneous respiratory and circulatory func­tions. In the event that artificial means of support preclude a determination that these functions have ceased, a person shall be considered dead if in the announced opinion of a physician, based on ordinary standards of medical practice, he has experienced an irreversible cessation of spontaneous brain functions. Death shall have occurred at the time when the relevant functions ceased.

2. The means of determining death in subsection 1 shall be used for all purposes in this state, including the trials of civil and criminal cases.  

3. Kansas  

A person will be considered medically and legally dead, if in the opinion of a physician, based on ordinary stan­dards of medical practice, there is the absence of sponta­neous respiratory and cardiac function and, because of the disease or condition which caused, directly or indirectly, these functions to cease, or because of the passage of time since these functions ceased, attempts at resuscitation are considered hopeless; and, in this event, death will have occurred at the time these functions ceased; or

A person will be considered medically and legally dead if, in the opinion of a physician, based on ordinary stan­dards of medical practice, there is the absence of sponta­neous brain function; and if based on ordinary standards of medical practice, during reasonable attempts to either maintain or restore spontaneous circulatory or respiratory function in the absence of aforesaid brain function, it appears that further attempts at resuscitation or suppor­tive maintenance will not succeed, death will have occurred at the time when these conditions first coincide. Death is to be pronounced before artificial means of supporting respiratory and circulatory function are terminated and before any vital organ is removed for purpose of transplantation.
These alternative definitions of death are to be utilized for all purposes in this state, including the trails of civil and criminal cases, any laws to the contrary notwith­standing. 

4. Capron & Kass  

A person will be considered dead if in the announced opinion of a physician, based on ordinary standards of medical practice, he has experienced an irreversible cessation of spontaneous respiratory and circulatory functions. In the event that artificial means of support preclude a determination that these functions have ceased, a person will be considered dead if in the announced opinion of a physician, based on ordinary standards of medical practice, he has experienced an irreversible cessation of spontaneous brain functions. Death will have (occurred at the time when the relevant functions ceased.  

Capron, A. M. and Kass, L. R. "A Statutory Definition of the Standards for Determining Human Death" University of Pennsylvania Law Review 121:87-118, 1972.  

5. Veatch  

A person will be considered dead if in the announced opinion of a physician, based on ordinary standards of medical practice, he has experienced an irreversible cessation of spontaneous respiratory and circulatory functions. In the event that artificial means of support preclude a determination that these functions have ceased, a person will be considered dead if in the announced opinion of a physician, based on ordinary standards of medical practice, he has experienced an irreversible cessation of spontaneous cerebral functions. Death will have occurred at the time when the relevant functions ceased. 

It is provided, however, that no person shall be con­sidered dead even with the announced opinion of a physical solely on the basis of an irreversible cessation of spontaneous cerebra functions if he, while competent to make such a decision, has explicitly rejected the use of this standard or, if he has not expressed himself on the matter while competent, his legal guardian or next of kin explicitly expresses such rejection.
            It is further provided that no physician shall pronounce the death of any individual in any case where there is significant conflict of interest with his obligation to serve the patient (including commitment to any other patients, research, or teaching programs which might directly benefit from pronouncing the patient dead).  

 from DEATH, DYING AND THE BIOLOGICAL REVOLUTION by Robert M. Vetch, Yale University Press, 1972. Copyright O 1972 by Yale University Press.

 

*************************************

6. James L. Bernat,  Charles M. Culver, and Bernard Gert

Defining Death in Theory and Practice

An individual, who has sustained irreversible cessation of all functions of the entire brain, including the brainstem, is dead 

  (a) In the absence of artificial means of cardiopulmonary support, death (the irreversible cessation of all brain functions) may be deter­mined by the prolonged absence of spontaneous circulatory and respiratory functions. 

(b) In the presence of artificial means of cardiopulmonary support, death (the irreversible cessation of all brain functions) must be deter­mined by tests of brain function.  

 

Return to:                 Table of Contents for the Online Textbook

© Copyright Philip A. Pecorino 2002. All rights reserved.

Web Surfer's Caveat: These are materials intended for class use.  They are not intended for publication or general distribution