Redefining Death

Yahoo has published an interesting article about an ongoing debate that most of us are blissfully unaware of: how do you define, as a legal matter, who is dead? The debate is heated, and is occurring in the context of discussions about rewriting the Uniform Determination of Death Act (“UDDA”). UDDA, which has been around since 1981, is one of many uniform laws that were drafted by the Uniform Law Commission and submitted to the 50 states in an effort to achieve standardized approaches to common issues, like what constitutes a contract for the sale of goods. In most instances, the work of the Uniform Law Commission addresses uncontroversial topics where reaching consensus is not difficult.

Redefining death has turned out to be an exception.

Determining who is legally dead is one of those areas where advances in medicine have affected legal issues. For many centuries, doctors determined death by listening for a heartbeat or taking a pulse and pushing a mirror under the patient’s nose to see whether breathing was occurring. Medical technology developed over recent decades has allowed machines to substitute for the heart and lungs, however, and other inventions have allowed us to examine human brain activity, which means the focus has shifted to the brain. If there is no brain activity, but a human being continues to breathe and other bodily functions continue with the help of machines, is that person alive or dead? How do we know if the cessation of brain activity is permanent? Should brain activity be controlling, or should the activities of other anatomical parts that affect body activity, like glands and the hippocampus, be considered? And another relatively recent medical advance–organ transplants–also is playing a role in the redefinition process. Essential organs can only be removed from a patient who is dead, so having a clear understanding of what that means is crucial to the organ transplant system.

The original UDDA was adopted by some states, but not others, and the rules defining death in different countries are even more muddled. The Uniform Law Commission is working to rewrite UDDA, and thereby redefine what legally constitutes death, against the backdrop of the medical issues and developments as well as some high-profile cases that have raised issues about when the end of life occurs. It’s a topic that touches upon medicine, law, philosophy, ethics, and religion–and, as with everything else in our modern era, politics. When UDDA was first proposed and adopted by states in the 1980s, it was not viewed as a controversial topic. Does anyone seriously believe that a rewrite of the statute would be viewed as apolitical in 2023, when it is expected to be rolled out to each of the 50 states, Puerto Rico, and Washington, D.C. for consideration?

You’d like to think that we can reach agreement on basic principles, like when someone is legally dead. The rewrite of UDDA will test that proposition.