• DOI:10.1111/J.1749-6632.1978.TB50352.X
• Corpus ID: 36535062

LEGAL DEFINITION OF DEATH

@article{Capron1978LEGALDO,
  title={LEGAL DEFINITION OF DEATH},
  author={Alexander M Capron},
  journal={Annals of the New York Academy of Sciences},
  year={1978},
  volume={315}
}

• A. Capron
• Published 1 November 1978
• Law
• Annals of the New York Academy of Sciences

Current antagonism notwithstanding, substantive conflict between medicine and the law is minor. Basically, good medicine is still good law-that is, actions of a physician that are acceptable among his or her colleagues will seldom be deemed improper by the legal system.’ There may, however, be times when good law does not seem like good medicine, and indeed when doctors think that the law makes no sense at all. This can sometimes result from the law’s well-known ability to engage in what are called legal fictions. To lawyers there is, for instance, nothing astonishing about the idea that a hospital is a person. This fiction has important consequences. The Fourteenth Amendment, in speaking of due process, says “Nor shall any state deprive any person of life, liberty or property without due process of law,” rather than saying “Nor shall any state deprive any corporation” of due process. But a hospital is nonetheless entitled to due process because, for purposes of the Fourteenth Amendment, it is not merely a corporate entity but a “person,” even though physicians may have no tools for determining whether such a “person” is “alive” or “dead.” There seems to be an inherent division in analytic outlook between physicians as servants of an empirical science and lawyers as servants of society. For the latter group, if not for the former, saying something can make it true, if not wise. Sometimes the divergence between the positions of law and medicine is great enough to throw into question the wisdom of a legal doctrine that draws conclusions far from those that comport with accepted medical or cultural understanding. Such was the state of the “definition of death” in the late 1960s. On the one hand, surgical procedures had been developed to take “live” organs from “dead” people (including that organ, the heart, long identified in the popular mind with life itself), and generally, medical means were increasingly employed to maintain function in the heart and lungs of patients who were otherwise deeply and irreversibly comatose. In the medical view, patients without any brain functioning (including those from whom organs were removed for transplantation) were “dead.”2 Yet on the other hand, the common law definition of death held that all patients with circulation and respiration-from whatever source-are still alive.3 This apparent conflict and the tale of what followed are by now familiar. The story of the litigation questioning the continued appropriateness of the common law definition and legislation updating it has been related bef0re.l By 1972 it appeared as though there might be rapid adoption of statutes “defining” death. Indeed, in that year the state of Maryland5 adopted with minor modifications the law first enacted in 1970 in Kansas,e and bills were pending in numerous other jurisdictions. While the Kansas statute was greeted with general approbation for its questions were raised about its wisdom and effect ivenes~ ,~ and Dr. Leon Kass and I undertook to set forth an alternative statute.’” This chapter surveys the developments since 1972 with an eye to identifying the points debated at that time on which there no longer seems to be any dis-