Determination of Death Legislation
Determination of Death Legislation
Robert C. Robinson 0
Kriger Portland 0
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ROBERT C. ROBINSON, ESQUIRE
Death and dying, common to all living creatures and accepted by all
as the inevitable termination of our time on earth, is, nevertheless,
misunderstood. During the last 200 years of our Anglo-American jurisprudential
system there has been no problem in determining when an individual has
died. If the person had stopped breathing and his heart had stopped
beating, the physician, using standard medical criteria, would pronounce
him dead.' Modern technology has advanced at so rapid a pace that it is
now possible for respiratory and cardiac activity to be maintained
artifically even when the brain has ceased to function. This has been referred
to as "brain death," a diagnosis given by physicians in their effort to
establish new criteria in determining the time of death.2 The advances of
medical technology have been remarkable. Physicians, enmeshed in their
own web of technical proficiency, are now faced with problems never
before encountered. Among the questions that have arisen are: Are all
"life support" systems to be classified as extraordinary care? When may
they be used? When must they be used? When may they be withdrawn?
What is brain death?
The first attempt at legislative resolution of this problem occurred in
1970 when the state of Kansas adopted "An Act Relating to and Defining
Death.' Because it employed alternative definitions of death, the statute
was not well received and created a degree of confusion. 4 Two years
before the Kansas statute was enacted, an ad hoc committee of the
See BLACK'S LAW DICTIONARY 488 (4th ed. 1951). Death was defined as, "the cessation of
life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the
blood, and a cessation of the animal and vital functions consequent thereon, such as
respiration [and] pulsation .... " Id. The definition of death subsequently has been revised to
recognize "statutory definitions of death which include brain-related criteria." BLACK'S LAW
DICTIONARY 360 (rev. 5th ed. 1979).
' See Showalter, DeterminingDeath: The Legal and Theological Aspects of Brain-Related
Criteria,27 CATH. LAW. 112, 113 (1982).
KAN. STAT. ANN. § 77-202 (Supp. 1981).
See Capron & Kass, A Statutory Definition of the Standards for Determining Human
Death: An Appraisal and a Proposal,121 U. PA. L. REV. 87, 109 (1972).
Harvard Medical School undertook an examination of "brain death." The
committee's report stated that its purpose was to define, for the first
time, irreversible coma as a criterion for death thereby aiding its
determination. This is particularly significant in the case of a comatose individual
with irreversible injury to the whole brain, or of an individual who has
sustained brain death and has been identified as an appropriate donor of
organs for transplant.
The medical community now agrees on the important distinction
between irreversible coma and brain death. The former is described as a
negative state where all cerebrum functions are lost but other vital
functions, such as heart beat, breathing, and temperature, persist.
There are presently at least thirty-five states which have some form
of brain death legislation.8 In 1972, Professor Alexander Morgan Capron
of the University of Pennsylvania Law School and Leon R. Kass,
Executive Secretary of the National Academy of Sciences, proposed their own
model entitled A Statutory Definition of the Standardsfor Determining
Human Death' which was the forerunner of later legislation. Their model
statute defines death as the irreversible cessation of spontaneous
respiratory and circulatory functions.7 Where artificial means of support
preclude such a determination, a person will be considered dead if he has
experienced an irreversible cessation of spontaneous brain functions.'
This act was an improvement over the Kansas Act, and the substratum
for some of the acts which followed.
In 1975, the Law and Medical Committee of the American Bar
Association (ABA) drafted a Model Definition of Death Act.' In 1978, the
National Conference of Commissions on Uniform State Laws (NCCUSL)
completed the "Uniform Brain Death Act."10 In 1979, the American
Medical Association proposed a model act entitled "Model Determination of
Death Statute.""1 Although each of these acts is somewhat different, they
all have the same purpose-to establish legitimate criteria by which a
physician, using accepted medical practice, can diagnose brain death at
the time when a patient is receiving life support for respiration and
circulation. However, the existence of several different versions from both
professional associations and individuals obscures the purpose.
The AMA version suggested that a single act might be created which
would combine the best elements of all and produce a workable act. In
May of 1980, the AMA met to consider several forms of legislation.
Among the representatives were Dennis Horan, chairman of the Law and
Medicine Committee; John Krichbaum and Bruce Nortell from the
AMA's legal staff; George Keely of Colorado and former president of
NCCUSL; Bill Wood of Pennsylvania, a chairman of the Standing
Committee of Natural Death Act; and Alexander Capron, Executive Director of
The President's Commission for the Study of Ethical Problems in
Medicine and Biomedical and Behavorial Research. Being totally familiar
with the problems of the physicians, the problems of the courts, and the
attitude of the AMA, the ABA and NCCUSL, they reached a compromise
which was, in August 1980, presented to the meeting of the committee of
the whole of the NCCUSL. With very little debate the proposal received
full approval. The language of the amended version was as follows: "An
individual who has sustained either (1) irreversible cessation of
circulatory and respiratory functions, or (2) irreversible cessation of all functions
of the entire brain, including the brain stem, is dead. A determination of
death must be made in accordance with accepted medical standards."'"
A comparison of this act with the Uniform Brain Death Act reveals
three important changes. First, the new act incorporates the common-law
standard for determining death as well as the brain death standard. The
Uniform Brain Death Act contains no language codifying the common
law. Although the original work of the NCCUSL's special committee on
the Uniform Determination of Death Act did codify the common law, the
drafting committee, deciding to present the simplest act possible,
eliminated that language.
The second important change is in the title. Since the act was a
comprehensive act, the title "Uniform Brain Death Act" was inappropriate.
The decision at the meeting was to return to the original title-"Uniform
Determination of Death Act." The new act is not, precisely, a definition
of death. It does not contain the clinical language with which physicians
define death. What this act does, however, is to establish a general legal
standard which permits the determination of death.
The third major change concerns the question of the applicable
medical standard. The Uniform Brain Death Act used the term "reasonable"
medical standards, while the new Uniform Determination of Death Act
uses "accepted" medical standards. At the May 16th meeting, much time
was spent considering the existing case law, including the latest cases
incorporating the Uniform Brain Death Act. It was concluded that the basic
language of either existing version would be appropriate, since courts
would nevertheless continue to rely upon the expert testimony of
IsUNw. DrrzMAnON op DRATH Acr § 1, 12 U.LA. 209 (West Supp. 1982).
cians. The criteria that the medical profession utilizes will be left for the
medical profession to establish. The term "accepted" medical standards
appeared to be the most neutral phrase in the existing acts, and was thus
The courts generally have followed expert testimony in making their
way through this maze, in most instances, without benefit of legislative
pronouncement. In 1979, the Supreme Courts of Colorado and Arizona
adopted the Uniform Brain Death Act as the rule of law in their states
without the approval of their respective legislatures. 3 Lovato v. District
Court, the Colorado case, involved child abuse that ripened into
homicide." State v. Fierroinvolved a homicide by shooting.' In each instance,
brain death was diagnosed while the victim was attached to respiratory
and circulatory support systems. It seems clear that both courts used the
Uniform Act to avoid complicating potential criminal prosecutions." The
Uniform Act eliminates a possible defense based on the doctors' decision.
In Lovato, Justice Groves stated:
We recognize the authority of, and indeed encourage, the General Assembly
to pronounce statutorily the standards by which death is to be determined
in Colorado. We do not, however, believe that in the absence of legislative
action we are precluded from facing and resolving the legal issue of whether
irretrievable loss of brain function can be used as a means of detecting the
condition of death. Under the circumstances of this case we are not only
entitled to resolve the question, but have a duty to do so. To act otherwise
would be to close our eyes to the scientific and medical advances made
world-wide in the past two or three decades.
As the rule of this case and that to be followed until otherwise changed
legislatively or judicially, we adopt the provisions of the proposed Uniform
Act. We repeat its provisions:
For legal and medical purposes, an individual who has sustained
irreversible cessation of all functioning of the brain, including the brain stem, is
dead. A determination under this section must be made in accordance with
reasonable medical standards.
Our recognition of this concept of brain death does not preclude
continuing recognition of the standard of death as determined by traditional
criteria of cessation of respiration and circulation. The effect of our opinion is
the same as that of proposed H.B. 1416 introduced in the Colorado General
Assembly and referred to earlier. . . . That [bill] provided for alternate
determinations of death, the first being brain death as defined in the Uniform
State v. Fierro, 124 Ariz. 182, 185, 603 P.2d 74, 77-78 (1979) (en banc); Lovato v. District
Court, 198 Colo. 419, 432, 601 P.2d 1072, 1081 (1979) (en banc).
" 198 Colo. at 422-23, 601 P.2d at 1073.
" 124 Ariz. at 184, 603 P.2d at 76.
"'eSee id. The defendant's arguments, that the termination of support systems was the
cause of death and that the evidence was insufficient to support a guilty verdict to a murder
charge, were rejected by the Fierro court. Id.
Act and the second being somatic death as traditionally defined.17
In Commonwealth v. Golston 8 the defendant was convicted of
firstdegree murder. His victim had been connected to a respirator
immediately upon admission to the hospital.1 ' Two days later he failed to
breathe spontaneously when temporarily disconnected from the
respirator.2 0 In addition, there was no indication of cerebral electrical activity.
Pursuant to consultation with his family, the respirator was removed
from the victim and his heart stopped.' The defendant contended that
the trial court had changed the law and invaded the province of the
legislature when it instructed the jury that "the occurrence of a brain death
• . .satisfies the essential element of the crime of murder requiring proof
beyond a reasonable doubt of the death of the victim."'2 The
Massachusetts court, rejecting the defendant's arguments, stated that the trial
judge had taken into account significant technological advances in the
area of artificial life support and merely had made an "evolutionary
restatement" of the rule rather than a new substantive rule.2 3 The court
limited its approval of the concept of brain death, however, to situations
where criminal convictions are concerned."
In In re Bowman,'5 Matthew, age 5, was admitted to the Stevens
Memorial Hospital on September 30, 1979 after suffering massive physical
injuries inflicted by a nonfamily member who was caring for him." This
was an appeal brought by the guardian ad litem appointed for William
Matthew Bowman challenging the decision of the Snohomish County
Superior Court which had ruled that because he had suffered irreversible
loss of brain activity he was in fact dead on October 17, 1979.'" Chief
Justice Robert F. Utter, in affirming the trial court determination, stated
that clarification was necessary because "[w]ith the recent advancement
of medical science, the traditional common law 'heart and lungs'
definition is no longer adequate.' s Some of the specific factors compelling a
more refined definition are: (1) modern medicine's technological ability to
sustain life in the absence of spontaneous heartbeat or respiration; (2) the
advent of successful organ transplantation capabilities which creates a
demand for viable organs from recently deceased donors; (3) the enormous
expenditure of resources potentially wasted if persons in fact dead are
treated medically as though they were alive; and (4) the need for a precise
time of death so that persons who have died may be treated
The courts are being confronted even more frequently with having to
make decisions in an area of extraordinary technological advancement
without the benefit of corresponding legislative advancement. In the case
of Eichner v.Dillon, to which Dennis Horan alluded, Brother Joseph Fox,
an 83-year-old Marianist Brother, on October 2, 1979, suffered a
cardiorespiratory arrest with massive brain cell destruction, reducing him to a
chronic vegetative state.3 0 Neurological examination confirmed that
Brother Fox would never gain any higher mental function.3 "He could
not hear, speak, move, recognize, think, or perform any but the most
primative kidney and digestive functions. '32 When this was fully and
completely established, his dear friend, Father Eichner, explaining the
position of the church, asked to have the ventilator shut off. The hospital
officials refused.33 Later, the district attorney threatened that anyone who
disconnected the respirator would be prosecuted for homicide.3 4
Father Eichner, after being appointed legal guardian, petitioned to
disconnect the respirator. He based his petition on the constitutionally
protected right to privacy.35 Judge Meade in his decision rejected the
Saihewicz3' and Quinlan3 7 rationale of "substituted judgment. 3 8 Since,
however, Brother Fox had conveyed many times his own feelings
concerning extraordinary care and artificial means to support life, Judge Meade
" Id. at 412-13, 617 P.2d at 734.
In re Eichner, 102 Misc. 2d 184, 186-87, 423 N.Y.S.2d 580, 583 (Sup. Ct. Nassau County
1979), afJ'd, 73 App. Div. 2d 431, 426 N.Y.S.2d 517 (2d Dep't 1980).
3' 102 Misc. 2d at 189, 423 N.Y.S.2d at 584.
" Paris, BrotherFox, the Courts and Death with Dignity, 143 AMERICA 282, 282 (1980); see
Eichner v. Dillon, 73 App. Div. 2d 431, 442, 426 N.Y.S.2d 517, 528 (2d Dep't 1980).
13 73 App. Div. 2d at 437, 426 N.Y.S.2d at 524.
' Paris, supra note 32, at 282. On the subject of possible prosecutions, the court noted that
"[e]uthanasia ... is proscribed by the criminal law, and any physician who, acting on his
own, removes a life sustaining respirator arguably commits some form of homocide." 73
App. Div. 2d at 450, 426 N.Y.S.2d at 533.
3 102 Misc. 2d at 196, 423 N.Y.S.2d at 589.
3 Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417
(1977). The guardian of a terminally ill 67-year-old severely retarded man was permitted by
the court to refuse chemotherapy on his behalf. Id. at 753, 370 N.E.2d at 431.
37 In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922 (1976). The court
recognized an individual's right to privacy and stated that "[t]he only practical way to
prevent destruction of the right is to permit the guardian and family of Karen to render their
best judgment .. .as to whether she would exercise it in these circumstances." Id. at 41,
355 A.2d at 664.
31 102 Misc. 2d at 208-09, 423 N.Y.S.2d at 596-97.
approved the withdrawal of the life supports, based on Brother Fox's
expressed personal desires.3 9
How would Judge Meade have decided the question if Brother Fox
had not expressed himself in clear terms prior to surgery? Reverend John
Paris, in his report on this case, states:
Judge Meade's constricted ruling provided relief from the torture of useless
treatment for one man, but it seemingly cut off the tentative efforts
explored by Quinlan and Saikewicz for protecting that right for others. The
Fox court, in fact, specifically states: "Perhaps some form of 'living will'
legislation may be required if the cessation of artificial life-support systems
is to be possible in other circumstances." That legal perspective-one which
believes that an individual needs the state's authorization to die and all of
its untoward implication-has been severely criticized.
If Meade's ruling is taken to mean that life-supporting medical
treatment may be terminated only on proof of a "living will" or other clear and
undisputed evidence of the patient's determination not to undergo
"extraordinary" life-prolonging procedures, Brother Fox's case will have been a
compounded tragedy-an unnecessary and costly prolongation of his own
dying and the judicial rejection of traditional Catholic doctrine that no one,
ccoonmtipneutienngt eofrfoirntcsoamtpuesteelnets,s atrrteicautmlateento.4r0 uninformed, need be subjected to
The matter was appealed and Justice Milton Mollen, speaking for a
unanimous five-member court, upheld Judge Meade's decision but with a
substantially modified approach.' He insisted that the issue be decided
on right of privacy grounds." He also adopted the substituted judgment
theory of Saikewicz, but restricted that right by ruling that it can only be
employed in a narrow range of cases, and then only by court decree.'3
Subsequently, however, the court of appeals modified the approach,
affirming the decision on the narrow grounds of the lower court by
declining to reach the issue of a right to privacy. 4
On January 30, 1981, Mrs. Bacchiochi, while having her wisdom teeth
removed in the office of an oral surgeon in Hartford, Connecticut slipped
into a coma." She was removed to the Johnson Memorial Hospital where
she stopped breathing, and was placed on life-support systems for a
peSO Id. at 209, 423 N.Y.S.2d at 597.
40 Paris, supra note 32, at 284-85 (citing R. McCORMICK, LEGISLATION AND THE LIVING WILL
4 73 App. Div. 2d at 435-36, 426 N.Y.S.2d at 524.
4I Id. at 457, 426 N.Y.S.2d at 537.
11 Id. at 473, 476, 426 N.Y.S.2d at 548, 550.
" 52 N.Y.2d at 377, 420 N.E.2d at 70, 438 N.Y.S.2d at 373. The court held that relief could
be supported by common-law principles in light of clear and convincing evidence of Brother
Fox's expressed desires. Id. at 377, 380, 420 N.E.2d at,70, 71, 438 N.Y.S.2d at 273, 274.
'5 Bacchiochi v. Johnson Memorial Hosp., No. 81-256126 (Conn. Super. Ct. Mar. 13, 1981).
riod of several weeks until the court determined that she had suffered
brain death. After Mrs. Bacchiochi stopped breathing and was intubated,
a neurologist was called in to examine her. He took one or two EEG's
which showed a slight degree of vitality. The last three or four EEG's
over a 3-week period were absolutely flat. He then performed a thorough
examination, following the procedure recommended by the ad hoc
committee of the Harvard Medical School, with the exception of "ice water in
ear," and there was absolutely no response. 46
Mr. Bacchiochi wanted the life supports removed; the hospital would
not comply. Mr. Lester Katz, attorney for plaintiff, petitioned the court
for a temporary injunction to enjoin the hospital from preventing removal
of life support. After appointing a guardian ad litem, the court advised
counsel that it wanted written notice to be given to the president of the
bar association, the attorney general and district attorney, the president
of the medical association, the hospital association, and representatives
from all religious faiths so as to give each of them the opportunity to
come before the court and voice their concern about the court's ultimate
determination on the issue of brain death.
The plaintiff called Reverend John Paris, S.J., at the University of
Massachusetts Medical Center as an expert witness. The court and
Father Paris engaged in an extensive 90-minute colloquy on the subject of
brain death and related matters. When asked by the court if he felt it was
ethical to remove the life-support equipment in the instant case, Father
Paris stated, "It was, of course, ethical to remove them. In fact to pursue
a course of treatment which could not produce an improvement or any
hope of benefit to the person was clearly unethical."
The court ruled that Mrs. Bacchiochi was "brain dead," meaning
there was total destruction of the function of her brain, including not
only the sapient cognitive cerebrum, but also the medulla or brain stem.
The court, however, delayed action on the family's request to order the
doctors to remove the life-support equipment. Instead, it told authorities
to "do what they deemed necessary." The next day Mr. Bacchiochi and
his wife's doctor removed the life supports.
The proliferation of model acts and state statutes, together with the
rulings from courts, demands some order and design in an area which is
so very important to society and which is already replete with complexity
and confusion. The Uniform Determination of Death Act,41 approved in
"' See Ad Hoc Committee of the Harvard Medical School to Examine the Definition of
Brain Death, A Definition of Irreversible Coma, 205 J. A.M.A. 337, 337-40 (1968).
" UNIF. DETERMINATION OF DATH Act § 1, 12 U.L.A. 209 (West Supp. 1982). For an
explan1980 by the National Conference of Commissioners on Uniform State
Laws, the American Medical Association, and the American Bar
Association, contains singular-purpose language which can develop uniformity in
the several states and bring order and design to an area of the law at a
time when it is so desperately needed. Although the adoption of the
Uniform Determination of Death Act does not automatically solve the
problem of when a brain irreversibly has ceased to function-since in any
given case that may be a very difficult judgment to make-the legislation
at least sets the framework, creating the forum in which to establish that
when the whole brain has ceased to function, the person is dead.
story discussion of the Act, see UNi. DgrTRMINATION Op DrATH AcT, 12 U.L.A. 208
commissioner's prefatory note (West Supp. 1982).