American Journal of Law & Medicine

Can we handle the truth? Legal fictions in the determination of death.


Advances in life-saving technologies in the past few decades have challenged our traditional understandings of death. People can be maintained on life-support even after permanently losing the ability to breathe spontaneously and remaining unconscious and unable to interact meaningfully with others. In part because this group of people could help fulfill the growing need for organ donation, there has been a great deal of pressure on the way we determine death. The determination of death has been modified from the old way of understanding death as occurring when a person stops breathing, her heart stops beating, and she is cold to the touch. Today, physicians determine death by relying on a diagnosis of total brain failure or by waiting a short while after circulation stops. Evidence has emerged that the conceptual bases for these approaches to determining death are fundamentally flawed and depart substantially from our biological and common-sense understandings of death.

We argue that the current approach to determining death consists of two different types of unacknowledged legal fictions. These legal fictions were developed for practices that are largely ethically legitimate but need to be reconciled with the law. However, the considerable debate over the determination of death in the medical and scientific literature has not informed the public of the fact that our current determinations of death do not adequately establish that a person has died. It seems unlikely that this information can remain hidden for long. Given the instability of the status quo and the difficulty of making the substantial legal changes required by complete transparency, we argue for a second-best policy solution of acknowledging the legal fictions involved in determining death. This move in the direction of greater transparency may someday result in allowing us to face squarely these issues and effect the legal changes necessary to permit ethically appropriate vital organ transplantation. Finally, this paper also provides the beginnings of a taxonomy of legal fictions, concluding that a more systematic theoretical treatment of legal fictions is warranted to understand their advantages and disadvantages across a variety of legal domains.


We have long understood death as occurring when a person's heart and circulatory system have permanently and irreversibly ceased to function--to die is to become a corpse that is pulseless, breathless, and cold to the touch. During the second half of the 20th century, the development of intensive care medicine and organ transplantation challenged the traditional understanding of what constitutes death. (1) People who traditionally would have been declared dead because they no longer breathed or had a pulse were able to be sustained by mechanical means. Difficult questions also arose about what to do with people on ventilators who had limited, if any, interaction with the world. It was hard to know what status to assign people with profound neurological damage who were dependent on mechanical means of life support, or when it was acceptable to stop life support. These technological developments, coupled with the need to conduct successful organ transplantation from people whose organs were intact and functioning, led to a new way of determining death based on the cessation of the functions of the entire brain.

More recently, our traditional understanding of death has further been modified to allow for better outcomes with organ transplantation. Because determining death based on a diagnosis of total brain failure was not sufficient to meet the need for organs, other patients on life support were seen as appropriate candidates for organ donation provided that their organs could be procured quickly after withdrawing life-sustaining treatment. To this end, hospitals and physicians began using considerably shorter waiting times after circulatory and cardiac function were deemed irreversibly stopped. Some physicians have waited as little as seventy-five seconds after circulation stops to declare death, (2) though there are insufficient data to be certain that death has occurred after such little time.

Despite the apparent widespread acceptance of our standards for determining death, scholars have begun to look upon the situation with a great deal of unease. Evidence has emerged that, based on the established biological conception of death in medicine, patients diagnosed as "brain dead" are actually alive, (3) and the way in which physicians determine when patient-donors irreversibly lose their circulatory function does not require certainty that circulation is lost for good and cannot be restarted. Although there are good reasons for treating people as if they were dead in these circumstances, they are not the reasons currently given. Instead, the determination of death has been modified to fit our current practices, thereby creating legal fictions. Legal fictions paradigmatically are heuristic devices that use untrue propositions and reasoning by analogy in order to determine what law should apply to a given situation. Although most common legal fictions (like the fiction that a corporation is a person) are transparent, the legal fictions involved in the determination of death are unacknowledged. Because they necessarily involve a distortion of the truth, legal fictions have long been controversial, but are commonly used in many legal domains with varying degrees of legitimacy.

The present paper (1) argues that our current approaches to the determination of death are conceptually flawed and lack transparency, (2) suggests a pragmatic policy approach of using transparent legal fictions to clarify the legal status of vital organ donation for the shorter term, and (3) begins to provide a more careful taxonomy and analysis of legal fictions in diverse areas of the law.

In Part II, we examine the standards for determining death, including how they have developed over time and the criticisms of these standards that have emerged. Part III examines the claim that current standards for determining death involve the use of legal fictions and begins by explaining what legal fictions are. We conclude that the standards for determining death employ two types of legal fictions: what we call status fictions (for "whole brain death") and anticipatory fictions (for donation after circulatory determination of death). Part IV considers different policy solutions to the determination of death and the merits and drawbacks of different types of legal fictions. Ideally, we should be able to accommodate vital organ transplantation without invoking legal fictions about donors being dead when, in fact, they are alive or not known to be dead. Nonetheless, we argue that the best practicable legal policy at the current time should understand "whole brain death" as based on a transparent status legal fiction and donation after circulatory determination of death as based on a transparent anticipatory legal fiction. Recognizing that the law currently, though not transparently, relies on these legal fictions will contribute to increasing the honesty with which difficult decisions about the uncertainty of life and death are made. Part V considers objections to our proposal, including a discussion of the dangers of legal fictions. Given the risks associated with legal fictions, we conclude that the uses of legal fictions in determining death should be carefully circumscribed to prevent future misuse. Finally, we conclude with a call for greater transparency in the determination of death and a more systematic theoretical treatment of legal fictions.


With few exceptions, (4) the traditional legal consequences of death did not require determining the moment of death with precision. (5) Legal issues affected by death include that a dead person's property is distributed to others, her legal relationships like marriage and business partnerships are terminated, and if an agent caused her death, that agent may be guilty of homicide. (6) In addition, death marks the time when it becomes appropriate to implement plans for burial or cremation. None of these consequences depend on determining death within a matter of minutes or seconds.

However, it was only when death became a prerequisite for vital organ donation that it began to matter exactly when a person died. (7) Waiting for traditional signs of death requires that organs are deprived of blood and oxygen for a period of time, with the risk or likelihood that they will be damaged. For this reason, patients who are kept on artificial support of ventilation and circulation, but who can be declared "brain dead," are much better candidates for successful organ donation than patients who have been declared dead after circulation has irreversibly ceased. (8) Additionally, some of the patients dependent on ventilators might legitimately want to make a decision (or have their families make the decision) to withdraw treatment and thereby end their lives, and may also want to donate their organs after death. This source of organ donors was a promising one both in terms of the potential to save lives and because it allowed people to exercise their autonomy in a meaningful way at the ends of their lives.

Yet, an important limitation on procuring organs for transplantation is the dead donor rule. The dead donor rule is a widely endorsed moral and legal constraint stipulating that transplantation of vital organs can only occur after a donor's death because it cannot be the cause of the donor's death. The dead donor rule is included in the Uniform Anatomical Gift Act, and a number of states have codified it into law. (9) Similarly, homicide laws do not have exceptions for physicians to be allowed to cause death in the context of organ donation.

In 1968, a Harvard committee was created to develop a new set of criteria for death in light of the developments in intensive care medicine and organ transplantation. (10) According to these criteria, individuals who had sustained traumatic brain injury that caused them to be in an irreversible coma, and had lost the ability to breathe spontaneously, would be considered dead. The two justifications the committee provided for this new neurological determination of death were (1) to allow for withdrawing life support from people who had sustained irreversible and devastating brain injury, and (2) to address obstacles to organ transplantation. (11) Notably, although the Harvard committee provided diagnostic criteria for irreversible coma, they did not explain why this physiological state constituted death. A task force of physicians, philosophers, and bioethieists subsequently took care to explain that the neurological standard was not created solely for the purpose of facilitating increased organ transplantation. (12) Nevertheless, others have described the Harvard committee's actions as defining death through a moral lens (rather than a biological one)--defining death based on the underlying purpose the definition would serve in allowing organ transplantation to take place. (13)

In 1981, the now-disbanded President's Commission wrote a report, entitled "Defining Death," that explained what the Harvard committee had not--why "brain death" constituted death. (14) The President's Commission formulated a biological conception of death to fit contemporary medicine and provided a set of diagnostic criteria for determining that death has occurred. The Commission defined death as "that moment when the body's physiological system ceases to constitute an integrated whole." (15) They concluded that death can be determined by neurological criteria that establish when all brain function ceases--what has come to be known as the "whole brain" criteria for death based on the loss of integrative unity of the organism as a whole. (16) The rationale for why "whole brain death" constitutes death was that the brain is the central integrator of the organism as a whole, and when the brain ceases to function, so does the organism as a whole. This effort was not without controversy, but widely recognized as one that provided an authoritative stance to shape future policy development. In their report, the President's Commission also developed language for the "Uniform Determination of Death Act," which they intended to be adopted by state legislatures. The Act 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...." (17) It further specifies that the "determination of death must be made in accordance with accepted medical standards" (18)

Taken together, the dead donor rule and the two criteria for determining death allow for vital organ transplantation (19) in two situations--when a patient has sustained irreversible neurological damage qualifying as "whole brain death," or when a patient's circulation has stopped irreversibly. By and large, states responded by drafting statutes that track this definition of death. (20)

The determination of death as "whole brain death" helped ensure a greater supply of organs, but use of these "heart-beating" donors did not meet the growing need for transplantation. (21) Annual waiting lists for organ donation have approximately 100,000 people, but there are far fewer organ donors than that each year. (22) In 2007, there were about 60,000 fewer vital organs being donated than were needed. (23) Over the last 15 years, "the need for donated organs has grown 5 times faster than the number of available cadaveric organs." (24)

In the early 1990s, the increasing need for organs and the desire to respect the preferences of the dying led to further modifications to the determination of death, this time based on the irreversible cessation of circulatory and respiratory function (not the brain). Institutions began new practices of controlled donation after circulatory determination of death (DCDD). (25) This involved withdrawing treatment based on a patient's or proxy's consent and then waiting for a predetermined period of time after asystole, the last beat of the heart that is capable of causing a pulse or circulating blood, before procuring organs. (26) The waiting period typically ranges from two to five minutes. (27) Unlike the traditional determination of death, this approach did not rely on the presumption that the person's heart could not be restarted. Instead, the medical team would not attempt to restart the heart, and would remove the organs after withdrawing treatment and waiting a set amount of time, with several ethical and legal safeguards in place. The success of this approach depends on whether the person's circulatory function stops soon after the withdrawal of treatment or disconnection from the ventilator. The liver must be retrieved thirty minutes after withdrawing life-saving treatment, but the kidney can be successfully retrieved an hour after treatment has stopped. In about 20% of cases, the patient's circulation does not stop soon enough to allow for their organs to be transplanted, and the doctors will then continue to provide end-of-life care for the patient but will not transplant the organs. (28)

Most DCDD is conducted under controlled conditions, meaning that withdrawal of life-sustaining treatment has been planned in advance, and the hospital moves the patient near or to an operating room and initiates interventions in order to preserve the organs and conduct the transplantation within a very short period of time. These techniques typically include administering the drug heparin to maintain blood flow to the organ before it is transplanted, or sometimes placing large catheters in arteries so that organ preservation solutions can be infused into the body as quickly as possible after death is declared. (29) Uncontrolled DCDD is less common. It occurs when a patient unexpectedly dies from cardiac arrest, and physicians still have some ability to preserve the organs until transplantation can occur. The types of patients who commonly participate in DCDD include patients on ventilators suffering from serious and irreversible brain injury, patients with high spinal cord injuries, and/or patients who are so close to death that further treatment is futile. (30) These individuals are not "brain dead," but their chances of recovering are slim to none, and they, or their surrogates, may wish to withdraw life support and also have the desire to serve as organ donors.

The majority of organ donors continue to be individuals who have been declared "brain dead," but the relative contribution of DCDD has increased in the last fifteen years. In 1995, 98% of organ donors had been declared "brain dead," but the percentage decreased to 90% by 2006. (31) The Joint Commission, an organization responsible for the accreditation of hospitals, has issued a standard that hospitals with the capability to conduct DCDD must create donation policies that address the opportunities for DCDD or justify the choice not to engage in DCDD. (32) This standard will likely cause the rate of DCDD to increase.

Given the trend towards increasing DCDD, how well-justified are the standards that are used? In 1997, the Institute of Medicine (IOM) was asked to address the key issue of irreversibility with respect to cardiac and circulatory criteria for death. The concern was that although irreversible cessation of heart and circulatory function is part of the ordinary, commonsense way we understand death and is also included in the Uniform Determination of Death Act, it is far from clear if irreversibility can be premised on the decision of an authorized decision-maker to take a patient off life support and that patient's heart stopping for some short period of time. (33)

The IOM concluded that as long as families were not pressured into deciding to withdraw life support (i.e., no one on the organ procurement team so much as consulted with the family before they made the decision), and five minutes had passed after the last heartbeat that circulated blood, DCDD was appropriate. However, the IOM did not cite a strong evidence base for their decision, admitting that the five minute recommendation "is only an expert judgment," and recommended that further research be conducted to settle the issue. (34) The American College and the Society of Critical Care Medicine supported this recommendation in a position statement in 2001. They concluded that waiting two to five minutes after cardiac function stops before organ removal is physiologically appropriate and ethically acceptable. (35) The recommendations cited some limited data that suggest that spontaneous restarting of the heart does not occur after two minutes. (36)

Physicians have since pushed the boundaries of even these recommendations by shortening the amount of time after asystole that organs are procured. The newer techniques have been met with a great deal of controversy, particularly when physicians shortened the waiting period to as little as seventy-five seconds after circulation ceased. (37)

Both of these ways of determining death--based on a diagnosis of total brain failure, or based on the irreversible cessation of respiratory and circulatory function--have come under increased scrutiny and criticism because neither approach fully reflects certain truths about death. After discussing this critical scrutiny, we will go on to argue in Section III that because the current approaches to determining death are conceptually flawed and lack transparency, important decisions about life and death are inappropriately being kept from public deliberation.


The determination of death under whole brain criteria has been controversial from its inception. (38) In the years since it was proposed, it became almost universally adopted as a legitimate criterion of death in the United States. (39) Many have criticized the whole brain criterion by citing scientific evidence that several important life functions continue in people who are diagnosed with total brain failure, or have raised examples of cases in which people were diagnosed with total brain failure but persisted on life support for years. (40) Some have taken these facts as evidence that the definition of death as total brain failure is not well-grounded in biology, but incorporates other philosophical, moral, or political considerations. (41)

The key claim--that patients diagnosed as meeting whole brain criteria for death have lost the integrative functioning of the organism as a whole (42)--has increasingly come under fire as conceptually unsound. Over time, a better understanding of the biological and medical status of patients diagnosed with "whole brain death" has emerged. In an influential article published in 2001, D. Alan Shewmon provided compelling evidence that the physiological basis for "whole brain death" is unfounded. He provided examples demonstrating that most integrative functions of the body are not mediated through the brain, including the following functions that continued in patients who had been declared "brain dead": homeostasis of many different chemicals, preservation of body temperature only a few degrees below normal, digestion, wound healing, immune response to infections, sexual maturation and proportional growth in children, and stress responses to incision for organ retrieval without prior administration of anesthesia. (43) At least ten cases of gestation of a fetus in the body of a brain-dead woman have been reported in the literature. (44) One woman gestated a fetus for 107 days, and her child was born after 32 weeks in the womb. (45) Shewmon also noted that the spinal cord is involved in neural integration, and that some "brain dead" patients move spontaneously, implying that their spinal cords are relatively intact and functioning. (46) Finally, organ donation is most successful coming from patients who display clear evidence of somatic integration. (47) In order for patients to be good candidates for transplantation, they should have stable cardiovascular function, which suggests that they have some somatic integration. (48)

Recognizing the force of these criticisms and scientific evidence produced by Shewmon and others, (49) the President's Council on Bioethics released a white paper in December 2008. Their white paper straightforwardly acknowledges that the rationale for neurological determination of death either needs to be reformulated or abandoned. They first choose the terminology "total brain failure" to separate the underlying diagnosis from a determination of death. (50) Then, they propose two possibilities for moving forward. The first is to err on the side of caution, and decide that the considerable uncertainty about death means that total brain failure cannot support a determination of death. (51) The majority of the members of the commission reject this position, however, in favor of a position that "seeks to develop a better rationale for continuing to use the neurological standard to determine whether a human being has died." (52)

Starting from the concept that an organism as a whole must be functioning to be alive (from the intuition that parts of an organism may function even when the organism as a whole has ceased to live), they argue that an organism remains alive when it continues to perform the "fundamental vital work of a living organism--the work of self-preservation, achieved through the organism's need-driven commerce with the surrounding world." (53) They further explain that "[t]he work of the organism, expressed in its commerce with the surrounding world, depends on three fundamental capacities." These are: (1) "[o]penness to the world, that is receptivity to stimuli and signals from the surrounding environment," (2) "[t]he ability to act upon the world to obtain selectively what it needs," and (3) "[t]he basic felt need that drives the organism to act ... to obtain what it needs." (54) The Council focuses on breathing and consciousness as the two critical ways in which an organism conducts commerce with the environment. (55)

Although this new conception of life and death has been noted for being the first new conceptual contribution to the field in some time, (56) it is inadequate to resuscitate the concept of death as total brain failure. First, it seems that patients with total brain failure may still engage in commerce with the surrounding world and be open and receptive to their surroundings in some ways. Patients with total brain failure have been shown to engage in wound healing and fighting of infections and foreign bodies. …

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