Why Brain Death Should Be a Legal Fiction

Seema K. Shah, JD


September 23, 2013

In This Article

What About Research on Brain-Dead Patients?

Yet another question is whether various kinds of research should be permitted on brain-dead patients under the same standards used for research on cadavers. The analogy between death and brain death may be imperfect here as well for various reasons. For instance, it may be psychologically difficult for a research team to perform the same kinds of procedures on brain-dead patients (whose hearts beat and whose lungs function if they are kept on ventilators) that they might be able to perform on cadavers.[1]

One study, performed on brain-dead patients to test an artificial lung, may not raise such concerns. But other studies performed on cadavers have tested what happens to bodies that have been subjected to landmine explosions.[1]

The gruesome nature of observing a brain-dead patient go through such an experiment makes it more troubling than involving cadavers in a study like this. Another important consideration is that research with brain-dead patients should not interfere with other, potentially more valuable choices that could be made.

For instance, if researchers approached families about research that precluded vital organ donation, and those families were never asked for consent regarding vital organ donation, then it is possible that less socially valuable uses of brain-dead patients would take precedence over more valuable ones.

For these reasons, brain-dead patients should not necessarily be treated the same as dead bodies for the purposes of involving them in research, and a legal fictions approach should not automatically extend to all types of research.

In sum, a legal fictions approach seems to helpfully determine when brain death can be treated as death for the purposes of withdrawing therapy, vital organ transplantation, and the initiation of the distribution of one's estate and assets. However, for other purposes, such as whether brain-dead patients should be kept on ventilators so that family members can travel to see them before death; whether insurance coverage of care should continue; and whether brain-dead patients should be considered for participation in the same types of research that is currently conducted with cadavers, the legal fictions approach cannot directly be translated to provide easy answers.

Should We Acknowledge a Legal Fiction?

The heated debate over brain death touches on incredibly fundamental and controversial issues, which makes it difficult to resolve.

I have argued for an acknowledged legal fictions approach to brain death that recognizes the differences between death and brain death but also captures the reasons to treat the 2 states similarly for the purposes of vital organ donation and withdrawal of life-sustaining therapy.

There are clear limitations for a transparent legal fictions approach to brain death. What a legal fictions approach offers is an ethically justified way to move in the direction of greater transparency and reconcile the law with the critically important enterprise of vital organ transplantation.


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