What are the Issues?

What is the Legal Definition?  The Law?  


I.  People are thought to be DEAD but really are ALIVE!!!

         This can happen anywhere.  Due to:



      Need for Organs  

II. People are thought to be ALIVE but are really DEAD !!!

   This can happen anywhere but primarily in New York State. Due to:

  •    Ignorance-     NO ,  Seldom

  •    Carelessness- NO , Highly Unlikely


Possible Motives: 

1.    Income for treatment of cadaver as a living person

2.    Opportunity for practicing procedures

3.    Opportunities for organ transplantation




BRAIN DEATH     (avoid this phrase)







A. Lung /  Heart Functioning  vs  Brain

                                  Lower Brain  cerebellum

                                  Upper Brain  cerebrum

                                  Whole Brain -including brain stem 




B. Use of Upper Brain Only

Anencephalic neonates  - Are they dead or alive?

         Advocates for treating them as dead; e.g., Loma Linda Medical Center (CA)


C. Use of Heart Only

       non heart beating cadaver donors  NHBCD's

             Pittsburgh Transplant Center (PA) 

What is death?  When is death?  

A problem due to the conflux of two revolutions.  

1.      The Biological Revolution

gaining technical control over nature-an attack on death itself

2.      The Sociological Revolution

Celebrating values: Individualism, Freedom, Social Justice

The questions is : When is a person dead?

The question is not a technical question but a moral and philosophical issue.  It is in the realm of the sciences but not of the sciences.  It is not a question for a technocratic elite to answer.

 Doctors are not trained in knowledge of the ESSENCE of human life!

 Five (5) Decisions must be made for a pronouncement of death

1.    Establish a concept of death

2.    Select general criteria and procedures to determine death

3.    Determine in each particular case that the criteria have been met

4.    Pronounce death

5.    Certify death  

When there is agreement about item (1) then society leaves the rest to physicians to determine.

When there is little or no agreement about (1) then society leaves only items 3-5 to physicians.  


 Is coma=DEATH ?

Definition of COMA

            Longest coma

            Types of coma



Definitions of death

a.      Social

b.     Psychological

c.      Economic

d.     Theological

e.      Philosophical

f.       Biological

g.      LEGAL

LEGAL Definition

            Blackís Legal Dictionary

            Old Definition

            New Definition

Medical Definition



            I. The Definition of Death

II. The right to refuse treatment

They should be kept separate!!

Ancient fear of mistaken pronouncements of DEATH

         Fear of being Buried Alive!!!

         Contemporary Fear of being cut up alive?  

Old way to settle the issue: run a contest!

The contemporary way to address the problem: set up a committee to study it.



Ad Hoc Committee of the Harvard Medical School for a Definition of Brain Death (1968)


            4 signs (tests) after 24 hours

                        No motion

                        No Responses

                        No spontaneous breathing

                        Flat or Isoelectric EEG Reading

         2 exceptions

                        Central Nervous system depressants  


            Revision (1977) repeat check for signs after 12 hours  

Philosophical Considerations

Robert Veatch-




1. Vital Fluids

Heart, Lungs


2. Souls



3. Bodily integration

Whole Brain

Harvard criteria

Irreversible Coma

4.    Social Interaction


Upper Brain

Neo cortex



Aristotleís Theory of the Three Souls 

Vegetative souls

Life signs: maintain and duplicate cells

Animal Soul


Human Soul


NEW YORK is the only State NOT to specifically recognize Irreversible COMA .  A court decision in NY permits medical personnel to stop all support measure for a person in irreversible coma and then pronounce death when heart and lung activity cease.  Thos who act to halt support will not be liable for the death: the condition that led to irreversible coma would be the cause of death.

Several groups are advocating a change in the law to move from brain criteria back to the heart and lung criteria.


Determination of death

The law generally supports customary medical practice and provides the medical profession with a great deal of autonomy. A dramatic example is the determination of death and the issuance of a death certificate. In almost every country of the world a physician declares a person dead and issues a death certificate after a determination of death is made in accordance with accepted medical standards. A question that recently appeared was whether physicians should continue to be given the authority to declare a person dead if the medical profession were to adopt whole brain death as an acceptable definition of death (instead of the past definition of irreversible cessation of respiration and heartbeat). A mechanical respirator can artificially maintain the respiration and circulation of a person whose functions would cease without such mechanical support. In the late 1960s the potentials of organ transplantation from such persons were becoming realized, and the seeming futility of devoting limited medical resources to maintaining circulation under such circumstances was of growing concern. Physicians began proposing that irreversible cessation of brain activity be used as an alternative definition of death

Since that time, most Western countries have adopted a revised definition, by either continuing to permit physicians to declare death, passing a specific statute endorsing this brain oriented definition, or issuing court opinions giving approval to physicians' declarations of death in such circumstances. The law, in short, has continued to defer to medical practice in the definition of death itself. 

The countries that have not adopted brain oriented death criteria have not done so primarily for cultural and religious reasons. For example, Japan has refused to adopt a brain-based definition of death in part because it would conflict with religious tenets that require the death of all major organs prior to a pronouncement of death. Accordingly, such medical techniques as heart transplantation cannot be performed in Japan (or in any country that does not accept a brain-death definition). 

Harvesting a beating heart from a person is considered in such countries to be homicide, even though brain activity has ceased and respiration is being maintained artificially.

What shall be the criteria for a new law?

Legislative Definitions of Death

Defining Death in Theory and Practice : James L. Bernat, Charles M. Culver, and Bernard Gert


As informed citizens you have a right to express your views and your values.

You donít want to pronounce people dead who are alive.

You donít want to pronounce people alive who are dead.

You donít want to pronounce people dead because you donít like their condition.

You donít want to pronounce people dead because you ant the organs.

What shall count in pronouncing someone dead?

          SOULS???  CONSCIOUSNESS???

Itís your life!  Itís your DEATH!!!

In the meantime be cautious of medical personnel using the terms "coma" and "brain death".  Ask for clarification and critical testing.