Why Brain Death Should Be a Legal Fiction

Seema K. Shah, JD


September 23, 2013

In This Article

A Different Definition of Death

Traditionally, death was understood to have occurred when a body was a cold, pulseless corpse.

Seema K. Shah, JD

In 1968, a committee of Harvard physicians published a report that transformed how death is determined, proposing a definition of "irreversible coma" as a criterion for brain death. By describing the characteristics of a "permanently nonfunctioning brain," they aimed to establish a new way of determining death that would allow brain-dead individuals to be withdrawn from ventilators and serve as organ donors.[1]

In 1981, the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavior Research argued that new technologies mask the occurrence of death by artificially maintaining bodily functions, and death nevertheless occurs at "that moment when the body's physiological system ceases to constitute an integrated whole."

They further argued that, because the brain is the central integrator of the body, death could therefore be established by neurologic criteria.[1] The language they proposed was codified in the Uniform Determination of Death Act, which defines death as either (1) "irreversible cessation of circulatory and respiratory functions," or (2) "irreversible cessation of all functions of the entire brain, including the brain stem...."[1] Many other developments continued, leading to current definitions of death and brain death. (See "Background: Development of Brain Death Criteria")

What Are Legal Fictions?

Although legal fictions have often been viewed unfavorably,[1] they are commonly used in the law and can serve an important purpose when used as metaphors.[1] In his classic work on the topic, Lon Fuller defined a legal fiction as "either (1) a statement propounded with a complete or partial consciousness of its falsity, or (2) a false statement recognized as having utility."[1]

Legal fictions can serve as useful methods for allowing existing law to cover a new activity or concept without more formal legal change. Instead of having to invent new legal rules out of whole cloth, judges and legislators can use legal fictions to borrow from and extend rules that already exist. Particularly in areas where technological change outpaces legal change, legal fictions may be important tools for extending the law to apply to new developments that do not fit neatly under existing law.

Brain Death as an Unacknowledged Status Legal Fiction

There were some doubts, even in 1968, about the view put forth by the Harvard ad hoc committee that the neurologic criteria they proposed were sufficient for determining death.[1] A great deal of evidence has revealed that brain death does not constitute death, if death is defined in terms of the irreversible cessation of the functioning of the organism as a whole.

Brain-dead individuals still demonstrate a variety of functions that require coordination and integration across the body, suggesting that brain death is not a masked version of death but a different state altogether. Nevertheless, brain death is treated as death under the law.


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