Why Brain Death Should Be a Legal Fiction

Seema K. Shah, JD


September 23, 2013

In This Article

Is Brain Death "as Good as Dead"?

Frank Miller and Bob Truog have cogently argued that individuals who are brain dead are "as good as dead" and can justifiably be treated as if they were dead. Miller and Truog explain that "when patients have a prior valid plan in place to withdraw [life-sustaining therapy] and proper consent has been obtained for organ donation, they are not harmed or wronged by procuring vital organs while they are still alive."[1] Miller and Truog argue that, when a valid decision has been made to withdraw life support, a brain-dead patient is on the trajectory towards imminent death, and procuring organs before withdrawing therapy does nothing to change this trajectory or set back the patient's interests.

Although it is clear that brain death is not the same as death, moreover, brain death does correspond to the loss of an ability to interact with others and the world in meaningful ways. With consent for withdrawing therapy and a separate consent for organ donation, it is reasonable for brain-dead patients to serve as organ donors, and it may even serve to leave behind a valuable legacy of having saved the lives of others.

It makes sense ethically to employ a status legal fiction to ensure that brain-dead donors can be treated as dead for the purposes of vital organ donation and withdrawal of therapy.

The Public Is Unaware of the Fiction

The fiction of brain death as death is not widely acknowledged or known by the public. Transparency is an important element in the responsible use of legal fictions, in order to avoid confusion about when it no longer makes sense to use the metaphor. The lack of transparency surrounding brain death may be unnecessarily confusing to those making decisions about organ donation,[1] may compromise the validity of the consent that is obtained,[1] and is vulnerable to challenge in lawsuits or the court of public opinion.

It is also ethically troubling that a major policy decision -- the decision about whether brain-dead individuals can be treated as dead -- is not one in which the public can participate because of misinformation and confusion.

One important step forward in the debate over brain death is to recognize and acknowledge the legal fiction of treating brain death as death. With Miller and Truog, I have argued for an acknowledged legal fictions approach. We call for the recognition that the brain dead are not dead but can be treated as such for legal purposes related to organ donation and the withdrawal of life-sustaining therapy.[1]

Lon Fuller was one of the main defenders of legal fictions, yet Fuller worried that legal fictions are deceptive, confusing, and imperfectly conceived with regard to their limits.[1] All analogies and metaphors have limits that should be acknowledged to prevent their overuse, and legal fictions are no different.


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