Death, Definition and Determination of: II. Legal Issues in Pronouncing Death
II. 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.
Phase One: Framing Definitions
A MEDICAL MATTER? A number of routes were advanced for arriving at what was often termed a new definition of death that would encompass the neurological understanding of the phenomenon of death that emerged in the 1960s and has since been further refined. (The common shorthand phrase "definition of death" is misleading since "definition" suggests an explanation of a fact whereas the task at hand is specifying the significance of particular facts for the process of determining whether, and when, a person has died.) Early commentators proposed that the task should be left to physicians, because the subject is technical and because the law might set the definition prematurely, leading to conflicts with developments that will inevitably occur in medical techniques (Kennedy). Yet the belief that defining death is wholly a medical matter misapprehends the undertaking. At issue is not a biological understanding of the inherent nature of cells or organ systems but a social formulation of humanhood. It is largely through its declaration of the points at which life begins and ends that a society determines who is a full human being, with the resulting rights and responsibilities.
Since physicians have no special competence on the philosophical issue of the nature of human beings and no special authority to arrogate the choice among definitions to themselves, their role is properly one of elucidating the significance of various vital signs. By the 1970s, it became apparent that a new definition should be forthcoming, not simply to accommodate biomedical practitioners' wishes but as a result of perceived social need and of evidence that tests for brain function were as reliable as the traditional heart-lung tests.
JUDICIAL DECISIONS? If not physicians, then who should frame the definition? One answer was, "Let the courts decide." In the United States and other common-law countries, law is to be found not only on the statute books but in the rules enunciated by judges as they resolve disputes in individual civil and criminal cases. Facing a factual situation that does not fit comfortably within the existing legal rules, a court may choose to formulate a new rule in order to more accurately reflect current scientific understanding and social viewpoints.
Nonetheless, problems of principle and practicality emerged in placing primary reliance on the courts for a redefinition of death. Like the medical profession, the judiciary may be too narrowly based for the task. While the judiciary is an organ of the state with recognized authority in public matters, it still has no means for actively involving the public in its decision-making processes. Judge-made law has been most successful in factual settings embedded in well-defined social and economic practices, with the guidance of past decisions and commentary. Courts operate within a limited compass—the facts and contentions of a particular case—and with limited expertise; they have neither the staff nor the authority to investigate or to conduct hearings in order to explore such issues as public opinion or the scientific merits of competing "definitions." Consequently, a judge's decision may be merely a rubber-stamping of the opinions expressed by the medical experts who appeared in court. Moreover, testimony in an adversary proceeding is usually restricted to the "two sides" of a particular issue and may not fairly represent the spectrum of opinion held by authorities in the field.
Furthermore, in the U.S. cases in which parties first argued for a redefinition, the courts were unwilling to disturb the existing legal definition. Such deference to precedent is understandable, because people need to be able to rely on predictable legal rules in managing their affairs. As late as 1968, a California appellate tribunal, in a case involving an inheritorship issue, declined to redefine death in terms of brain functioning despite the admittedly anachronistic nature of an exclusively heart-lung definition (Cate and Capron).
The unfortunate consequences for physicians and patients of the unsettled state of the common-law definition of death in the 1970s is illustrated by several cases. In the first, Tucker v. Lower, which came to trial in Virginia in 1972, the brother of a man whose heart was taken in an early transplant operation sued the physicians, alleging that the operation was begun before the donor had died. The evidence showed that the donor's pulse, blood pressure, respiration, and other vital signs were normal but that he had been declared dead when the physicians decided these signs resulted solely from medical efforts and not from his own functioning, since his brain functions had ceased. At the start of the trial, the judge indicated that he would adhere to the traditional definition of death, but when charging the jury, he permitted them to find that death had occurred when the brain ceased functioning irreversibly. Although a verdict was returned for the defendants, the law was not clarified since the court did not explain its action.
The other two cases arose in California in 1974, when two transplant operations were performed using hearts removed from the victims of alleged crimes. The defendant in each case, charged with homicide, attempted to interpose the action of the surgeons in removing the victim's still-beating heart as a complete defense to the charge. One trial judge accepted this argument as being compelled by the existing definition of death, but his ruling was reversed on appeal, and both defendants were eventually convicted. This graphic illustration of legal confusion and uncertainty led California to join several other jurisdictions in the United States, Canada, and Australia that, beginning in 1970, followed a third route to redefining death, the adoption of a statutory definition.
STATUTORY STANDARDS? The legislative process allows a wider range of information to enter into the framing of standards for determining death, as well as offering an avenue for participation of the public. That is important because basic and perhaps controversial choices among alternative definitions must be made. Because they provide prospective guidance, statutory standards have the additional advantage of dispelling public and professional doubt, thereby reducing both the fear and the likelihood of cases against physicians for malpractice or homicide.
Not all countries have adopted legislation. In Great Britain, for example, the standards for determining death reside not in a statute but in medically promulgated codes of practice, which have been indirectly accepted in several judicial decisions (Kennedy and Grubb). Yet in the United States and among most commentators internationally, the first period in policymaking on a new definition of death produced wide agreement that an official response was necessary in light of the changes wrought by medical science, and that this response ought to be statutory.
Phase Two: The Contours of a Statute
By 1979 four model statutes had been proposed in the United States; in addition to those from the American Bar Association (ABA), the American Medical Association (AMA), and the National Conference of Commissioners of Uniform State Laws (NCCUSL), the most widely adopted was the Capron-Kass proposal, which grew out of the work of a research group at the Hastings Center (U.S. President's Commission, 1981). Ironically, the major barrier to legislation became the very multiplicity of proposals; though they were consistent in their aims, their sponsors tended to lobby for their own bills, which in turn produced apprehension among legislators over the possible importance of the bills' verbal differences. Accordingly, the President's Commission worked with the three major sponsors—the ABA, the AMA, and the NCCUSL—to draft a single model bill that could be proposed for adoption in all jurisdictions. The resulting statute—the Uniform Determination of Death Act (UDDA)—was proposed in 1981 and is law in more than half of U.S. jurisdictions, while virtually all the rest have some other, essentially similar statute. In four states the law derives from a decision by the highest court recognizing cessation of all functions of the brain as one means of determining death (Cate and Capron).
The UDDA provides that an individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards. This statute is guided by several principles. First, the phenomenon of interest to physicians, legislators, and the public alike is a human being's death, not the "death" of his or her cells, tissues, or organs. Indeed, one problem with the term "brain death" is that it wrongly suggests that an organ can die; organisms die, but organs cease functioning. Second, a statute on death will resolve the problem of whether to continue artificial support in only some of the cases of comatose patients. Additional guidance has been developed by courts and legislatures as well as by professional bodies concerning the cessation of treatment in patients who are alive by brain or heart-lung criteria, but for whom further treatment is considered (by the patients or by others) to be pointless or degrading. This question of "when to allow to die?" is distinct from "when to declare dead?"
Third, the merits of a legislative definition are judged by whether its purposes are properly defined and how well the legislation meets those purposes. In addition to its cultural and religious importance, a definition of death is needed to resolve a number of legal issues (besides deciding whether to terminate medical care or transplant organs) such as homicide, damages for the wrongful death of a person, property and wealth transmission, insurance, taxes, and marital status. While some commentators have argued that a single definition is inappropriate because different policy objectives might exist in different contexts, it has been generally agreed that a single definition of death is capable of being applied in a wide variety of contexts, as indeed was the traditional heart-lung definition. Having a single definition to be used for many purposes does not preclude relying on other events besides death as a trigger for some decisions. Most jurisdictions make provision, for example, for the distribution of property and the termination of marriage after a person has been absent without explanation for a period of years, even though a person "presumed dead" under such a law could not be treated as a corpse were he or she actually still alive (Capron).
Fourth, although dying is a process (since not all parts of the body cease functioning equally and synchronously), a line can and must be drawn between those who are alive and those who are dead (Kass). The ability of modern biomedicine to extend the functioning of various organ systems may have made knowing which side of the line a patient is on more problematic, but it has not erased the line. The line drawn by the UDDA is an arbitrary one in the sense that it results from human choice among a number of possibilities, but not in the sense of having no acceptable, articulated rationale.
Fifth, legislated standards must be uniform for all persons. It is, to say the least, unseemly for a person's wealth or potential social utility as an organ donor to affect the way in which the moment of his or her death is determined. One jurisdiction, in an attempt to accommodate religious and cultural diversity, has departed from the general objective of uniformity in the standards for determining death. In 1991, New Jersey adopted a statute that allows people whose religious beliefs would be violated by the use of whole-brain criteria to have their deaths declared solely on the traditional cardiorespiratory basis (New Jersey Commission).
Sixth, the UDDA was framed on the premise that it is often beneficial for the law to move incrementally, particularly when matters of basic cultural and ethical values are implicated. Thus, the statute provides a modern restatement of the traditional understanding of death that ties together the accepted cardiopulmonary standard with a new brain-based standard that measures the same phenomenon.
Finally, in making law in a highly technological area, care is needed that the definition be at once sufficiently precise to determine behavior in the manner desired by the public and yet not so specific that it is tied to the details of contemporary technology. The UDDA achieves this flexible precision by confining itself to the general standards by which death is to be determined. It leaves to the developing judgment of biomedical practitioners the establishment and application of appropriate criteria and specific tests for determining that the standards have been met. To provide a contemporary statement of "accepted medical standards," the U.S. President's Commission assembled a group of leading neurologists, neurosurgeons, pediatricians, anesthesiologists, and other authorities on determination of death (Medical Consultants). Their guidelines, which provide the basis for the clinical methodology used in most American institutions, have since been supplemented by special guidance regarding children (Task Force).
Phase Three: The Continuing Points of Debate
As a practical matter, the law nearly everywhere (most recently including Japan) (Akabayashi) recognizes that death may be diagnosed based upon the determination that the brain as a whole has ceased functioning. In the United States, this consensus is embodied in the UDDA, which has therefore become the focus of criticism from certain people—principally some philosophers, but also physicians and lawyers—who are not comfortable with this consensus. Their objections can be summarized in three challenges to the UDDA.
WHOLE-BRAIN VERSUS HIGHER-BRAIN DEATH. The strongest position against the UDDA is mounted by those who would substitute for its "whole brain" standard a "higher brain" standard. Many philosophers have argued that certain features of consciousness (or at least the potential for consciousness) are essential to being a person as distinct from merely a human being (Veatch; Zaner). The absence of consciousness and cognition—as occurs, for example, in patients in the permanent vegetative state (PVS)—thus results in the loss of personhood. A related argument rests on the ontological proposition that the meaning of being a person—that is, a particular individual—is to have a personal identity, which depends on continuity of personal history as well as on self-awareness. The permanent loss of consciousness destroys such identity and hence means the death of that person, even if the body persists.
Consideration of the implications of these theories for determination of death takes several forms. On a conceptual level, the specific characteristics deemed by philosophers to be essential for personhood have varied widely from John Locke's focus on self-awareness to Immanuel Kant's requirement of a capacity for rational moral agency (Lizza). Thus, while certain definitions would exclude only those who lack any capacity for self-knowledge, such as PVS (persistent vegetative state) patients, other conceptions would encompass senile or severely retarded patients who cannot synthesize experience or act on moral principles.
On a practical level, trying to base a definition of death on cessation of higher-brain functions creates at least two problems. The first is the absence of agreed-upon clinical tests for cessation of these functions. Although certain clinical conditions such as PVS that involve the loss of neocortical functioning when brainstem functions persist can be determined sufficiently reliably for prognostic purposes (such as when deciding that further treatment is no longer in the best interests of a dying patient), the greater complexity and uncertainty that remain prevent testing with the same degree of accuracy as with the whole-brain standards. The practical problems increase enormously if the higher-brain definition is grounded on loss of personhood or personal identity, because loss of such a characteristic is not associated with particular neurologic structures.
More fundamentally, patients who are found to have lost (or never to have had) personhood because they lack higher-brain functions, or because they no longer have the same personal identity, will still be breathing spontaneously if they do not also meet whole-brain standards such as those of the UDDA. While such entities may no longer be "persons," they are still living bodies as "living" is generally understood and commonly used. "Death can be applied directly only to biological organisms and not to persons" (Culver and Gert, p. 183). To regard a human being who lacks only cerebral functions as dead would lead either to burying spontaneously respiring bodies or to having first to take affirmative steps, such as those used in active euthanasia, to end breathing, circulation, and the like. Neither of these would comport with the practices or beliefs of most people despite widespread agreement that such bodies, especially those that have permanently lost consciousness, lack distinctive human characteristics and need not be sustained through further medical interventions. Perhaps for this reason, in proposing a statute that would base death on cessation of cerebral functions, Robert Veatch condones allowing persons, while still competent, or their next of kin to opt out of having their death determined on the higher-brain standard. No state has adopted a "conscience clause" of this type, and the New Jersey statute mentioned above does not endorse the higher-brain standard (Olick).
The major legal evaluation of the higher-brain standard has arisen in the context of infant organ transplantation because of several highly publicized attempts in the 1980s to transplant organs from anencephalic infants (babies born without a neocortex and with the tops of their skulls open, exposing the underlying tissue). In 1987–1988, Loma Linda Medical Center in California mounted a protocol (a formal plan for conducting research) to obtain more organs, particularly hearts, from this source. The protocol took two forms. At first, the anencephalic infants were placed on respirators shortly after birth; but such infants did not lose functions and die within the two-week period the physicians had set, based on historical experience that virtually all anencephalics expire within two weeks of birth. In the second phase of the protocol, the physicians delayed the use of life support until the infants had begun experiencing apnea (cessation of breathing). Yet by the time death could be diagnosed neurologically in these infants, the damage to other organs besides the brain was so great as to render the organs useless. No organs were transplanted under the Loma Linda protocol.
Proposals to modify either the determination of death or the organ-transplant statutes to permit the use of organs from anencephalic infants before they meet the general criteria for death have not been approved by any legislature, nor was the Florida Supreme Court persuaded to change the law in the only appellate case regarding anencephalic organ donation. In that case, the parents of a child prenatally diagnosed with anencephaly requested that she be regarded as dead from the moment of birth so that her organs could be donated without waiting for breathing and heartbeat to cease. The Florida statute limits brain-based determinations of death to patients on artificial support. Turning to the common law, the court held that it established the cardiopulmonary standard, and the court then declined to create a judicial standard of death for anencephalics in the absence of a "public necessity" for doing so or any medical consensus that such a step would be good public policy (T.A.C.P.).
Although the Loma Linda protocol for using anencephalic infants as organ sources attempted to comply with the general consensus on death determination, it also proved that the "slippery slope" is not merely a hypothetical possibility. While the program was ongoing and receiving a great deal of media attention, the neonatologist who ran the pediatric intensive-care unit where potential donors were cared for reported receiving offers from well-meaning physicians of infants with hydrocephalus, intraventricular hemorrhage, and severe congenital anomalies. These physicians found it difficult to accept Loma Linda's rejection of such infants, whom the referring physicians saw as comparable on relevant grounds to the anencephalic infants who had been accepted. Beyond the risk of error in diagnosing anencephaly, it is hard to draw a line at this one condition, since the salient criteria—absence of higher-brain function and limited life expectancy—apply to other persons as well. The criterion that really moves many people—namely, the gross physical deformity of anencephalic infants' skulls—is without moral significance. Thus, a decision to accept anencephaly as a basis for declaring death would imply acceptance of some perhaps undefined higher-brain standard for diagnosing any and all patients.
CHANGING CLINICAL CRITERIA. Some medical commentators have suggested that society should rethink brain death because studies of bodies determined to be dead on neurological grounds have shown results that fail to accord with the standard of "irreversible loss of all functions of the entire brain" (Truog and Fackler). Specifically, some of these patients still have hypothalamic-endocrine function, cerebral electrical activity, or responsiveness to the environment.
Although the technical aspects of these various findings differ, similar reasoning can be applied to assessing their meaning for the concept of brain death. For each, one must ask first, are such findings observed among patients diagnosed through cardiopulmonary as well as neurological means of diagnosing death? Second, are such findings inconsistent with the irreversible loss of integrative functioning of the organism? Finally, do such findings relate to functions that when lost do not return and are not replaceable?
If some patients diagnosed dead on heart-lung grounds also have hypothalamic-endocrine function, cerebral electrical activity, or environmental responses, then the presence of these findings in neurologically diagnosed patients would not be cause for concern that the clinical criteria for the latter groups are inaccurate, and no redefinition would be needed.
Plainly, in many dead bodies some activity (as opposed to full functions) remains temporarily within parts of the brain. The question then becomes whether the secretion of a particular hormone (such as arginine vasopressin, which stimulates the contraction of capillaries and arterioles) is so physiologically integrative that it must be irreversibly absent for death to be declared. Depending upon the answer, it might be appropriate to add to the tests performed in diagnosing death measurements of arginine vasopressin or other tests and procedures that have meaning and significance consistent with existing criteria.
Such a modest updating of the clinical criteria is all that is required by Truog and Fackler's data and is preferable to the alternative they favor, modifying the conceptual standards to permanent loss of the capacity for consciousness while leaving the existing criteria for the time being. Not only does this change fail to respond to their data that testing can evoke electrical activity in the brain stem, despite the absence of such activity in the neocortex (called electrocerebral silence); it also has all the problems of lack of general acceptability that attach to any standard that would result in declaring patients with spontaneous breathing and heartbeat dead because they are comatose (i.e., deeply unconscious).
THE MEANING OF IRREVERSIBILITY. The final challenge to the UDDA is less an attempt to refute its theory than it is a contradiction of the standards established by the statute and accompanying medical guidelines. Under a protocol developed at the University of Pittsburgh in 1992, patients who are dependent on life-support technology for continued vital functions and who desire to be organ donors are wheeled into the operating room and the life support disconnected, leading to cardiac arrest. After two minutes of asystole (lack of heartbeat), death is declared based upon the "irreversible cessation of circulatory and respiratory functions," at which point blood flow is artificially restored to the organs which are to be removed for transplantation (Youngner et al.,1993). Yet the failure to attempt to restore circulatory and respiratory functions in these patients shows that death had not occurred according to the existing criteria. The requirement of "irreversible cessation" must mean more than simply the physician "chose not to reverse." If no attempt is made to restore circulation and respiration before organs are removed it is not appropriate to make a diagnosis of death—merely a prognosis that death will occur if available means of resuscitation continue not to be used.
The reason for alternative standards for determining death is not because there are two kinds of death. On the contrary, there is one phenomenon that can be viewed through two windows, and the requirement of irreversibility ensures that what is seen is virtually the same thing through both. To replace "irreversible cessation of circulatory and respiratory functions" with "choose not to reverse" contradicts the underlying premise, because in the absence of the irreversibility there is no reason to suppose that brain functions have also permanently ceased.
A different, and more potent, challenge to the irreversibility requirement is posed by the prospect inherent in current research on human stem cells that some time in the future it may be possible to restore brain functions whose loss is at present beyond repair. Should such treatments become a clinical reality, the present standards for determining death will need to be reconsidered because the occurrence of death will in all cases turn on the decision whether or not to attempt repair.
The movement toward a modern legal formulation of the bases for pronouncing death has not been completed, and it is not clear that a complete consensus is possible (Younger, Arnold, and Shapiro, 1999). In some societies, that task may be left to the medical profession, since the problems faced in medical practice provide the impetus for change. Tradition as well as sound policy suggests, however, that the ground rules for decisions about individual patients should be established by public authorities. Whether the new legal definition of death emerges from the resolution of court cases or from the legislative process, it will be greatly influenced by opinion from the medical community. Recognition that the standards for determining death are matters of social and not merely professional concern only serves to underline the education of the public on this subject as an important ethical obligation of the profession.
alexander morgan capron (1995)
revised by author
SEE ALSO: Body: Cultural and Religious Perspectives; Consensus, Role and Authority of; Judaism, Bioethics in; Law and Bioethics; Law and Morality; Life; Metaphor and Analogy; Organ and Tissue Procurement;Public Policy and Bioethics; and other Death, Definition and Determination of subentries
Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death. 1968. "A Definition of Irreversible Coma." Journal of the American Medical Association 205(6): 337–340. The original guidance on the means for determining an irreversible loss of total brain functioning, unfortunately mislabeled "irreversible coma."
Akabayashi, Akira. 1997. "Japan's Parliament Passes Brain-death Law." The Lancet 349: 1895. The law adopted by Japan in 1997 recognizes brain death but accommodates traditional religious beliefs by allowing the patient's family to veto this diagnosis.
Capron, Alexander Morgan. 1973. "The Purpose of Death: A Reply to Professor Dworkin." Indiana Law Journal 48(4): 640–646. Argues for developing a definition that comports with social reality and that can be employed in as many legal settings as it suits.
Capron, Alexander Morgan, and Kass, Leon R. 1972. "A Statutory Definition of the Standards for Determining Human Death: An Appraisal and a Proposal." University of Pennsylvania Law Review 121: 87–118. Discusses the procedures and objectives for lawmaking and provides a model that was widely adopted.
Cate, Fred H., and Capron, Alexander Morgan. 2003. "Death and Organ Transplantation." In Treatise on Health Care Law, pp. 45–60, ed. Michael G. Macdonald, Robert M. Kaufman, Alexander M. Capron, and Irwin M. Birnbaum. New York: Matthew Bender.
Kass, Leon R. 1971. "Death as an Event: A Commentary on Robert Morison." Science 173(998): 698–702. Refutes Morison's thesis that death does not occur at an identifiable time and explores the social rules that follow from this view.
Kennedy, Ian McColl. 1971. "The Kansas Statute on Death: An Appraisal." New England Journal of Medicine 285(17): 946–949. Criticizes the first American statute and urges that defining death be left in medical hands.
Kennedy, Ian McColl, and Grubb, Andrew. 1989. Medical Law: Text and Materials. London: Butterworths.
Lizza, John P. 1993. "Persons and Death: What's Metaphysically Wrong with our Current Statutory Definition of Death?" Journal of Medicine and Philosophy 18(4): 351–374.
Medical Consultants on the Diagnosis of Death to the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. 1981. "Guidelines for the Determination of Death." Journal of the American Medical Association 246(19): 2184–2187. This statement, signed by nearly all the leading American authorities on the subject, became the prevailing standard for pronouncing death.
New Jersey Commission on Legal and Ethical Problems in the Delivery of Health Care. 1991. The New Jersey Advance Directives for Health Care and Declaration of Death Acts: Statutes, Commentaries and Analysis. Trenton, NJ: Author. Proposes and defends state's unique statute on determination of death.
Olick, Robert S. 1991. "Brain Death, Religious Freedom, and Public Policy: New Jersey's Landmark Legislative Initiative." Kennedy Institute of Ethics Journal 1(4): 275–288. Discusses New Jersey's religious exemption and offers a defense of the conscience clause in law and policy.
T.A.C.P., In re. 609 So.2d 588–95 (Fla. Sup. Ct. 1992).
Task Force for the Determination of Brain Death in Children. 1987. "Guidelines for the Determination of Brain Death in Children." Annals of Neurology 21(6): 616–621. Provides special standards for pediatric death determination.
Truog, Robert D., and Fackler, James C. 1992. "Rethinking Brain Death." Critical Care Medicine 20(12): 1705–1713.
U.S. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. 1981. Defining Death: Medical, Legal, and Ethical Issues in the Determination of Death. Washington, D.C.: U.S. Government Printing Office. Explanation of concepts and rationale for Uniform Determination of Death Act by federal bioethics commission, which operated from 1980 to 1983.
Van Till-d'Aulnis de Bourouill, Adrienne. 1975. "How Dead Can You Be?" Medicine, Science and the Law 15(2): 133–147. Compares American diagnostic criteria with those used in France, Austria, and Germany; also differentiates ceasing artificial maintenance from murder or active euthanasia.
Veatch, Robert M. 1976. Death, Dying, and the Biological Revolution: Our Last Quest for Responsibility. New Haven, CT: Yale University Press. Argues for regarding death as the loss of cerebral functions and provides a statute to achieve this end.
Youngner, Stuart; Arnold, Robert M.; and Shapiro, Renie. 1999. The Definition of Death. Baltimore, MD: Johns Hopkins University Press. Identifies problems with defining death, including ethical, historical, cultural, and international arguments.
Youngner, Stuart, and Arnold, Robert M., for the Working Group on Ethical, Psychosocial, and Public Policy Implications of Procuring Organs from Non-Heart-Beating Cadaver Donors. 1993. "Ethical, Psychosocial, and Public Policy Implications of Procuring Organs from Non-Heart-Beating Cadaver Donors." Journal of the American Medical Association 269(21): 2769–2774. Reviews issues that are raised by using as organ donors patients whose hearts stop beating when life-sustaining treatment is discontinued.
Zaner, Richard M., ed. 1988. Death: Beyond Whole-Brain Criteria. Dordrecht, Netherlands: Kluwer Academic Publishers. A symposium on the debate between whole- and higher-brain standards, with essays favoring the latter by such leading figures as Edward T. Bartlett and Stuart J. Youngner, H. Tristram Engelhardt, Robert M. Veatch, and Richard M. Zaner.