Advances in life-saving technologies in the past few decades have challenged our traditional understandings of death. Traditionally, death was understood to occur when a person stops breathing, their heart stops beating and they are 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, however, that the conceptual bases for these approaches to determining death are fundamentally flawed and depart substantially from the established biological conception 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. The considerable debate over the determination of death in the medical and scientific literature has not informed the public that vital organs are being procured from still-living donors and 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: acknowledging the legal fictions involved in determining death to move in the direction of greater transparency. This may someday result in more substantial legal change to directly confront the challenges raised by life-sustaining and life-preserving technologies without the need for fictions.
- Legal aspects
- donation/procurement of organs/tissues
- definition/determination of death
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The opinions expressed are the view of the authors. They do not represent any position or policy of the US National Institutes of Health, the Public Health Service, or the Department of Health and Human Services.
Funding This research was supported by the Intramural Research Program of the NIH, out of the Warren G Magnussen Clinical Center. However, the sponsor had no role in the development of manuscript or decision to submit it for publication. Two of the authors are US government employees who must comply with the NIH Public Access Policy and the author or NIH will deposit, or have deposited, in NIH's PubMed Central archive, an electronic version of the final, peer-reviewed manuscript upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication.
Competing interests None.
Provenance and peer review Not commissioned; externally peer reviewed.
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