A lack of heartbeat and respiration are the two criteria for

1 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research Defining Death: Medical, Legal and Ethical Issues in the Determination of Death, [hereinafter Commission] 13–16 (1981).

2 Id.

3 Id. at 13.

4 Id.

5 Id. at 23.

6 Id. at 24.

7See id.

8See eg State v. Fierro, 124 Ariz. 182, 185–86 (1979) (holding that the Harvard criteria is a valid test for death in Arizona, in addition to the cardiopulmonary standard).

9Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death, A Definition of Irreversible Coma, 205 JAMA 85–86 (1968).

10Robert Truog, Defining Death: Getting it Wrong for All the Right Reasons 93 Tex. L. Rev. 1885, 1888 (2015).

11 Commission, supra note 1, at 61.

12 Id . at 62–63.

13 Id. It should be noted, however, that the President's Commission does not have the power to make laws. It is an advisory group to the president on bioethical issues.

14 Id. at 19–20.

15 Id. at 10.

16 Id.

17 Id. at 9–12.

18 Id. at 41.

19 Id.

20 Id. at 73.

21 Id.

22 Ray D. Madoff, Immortality And The Law: The Rising Power Of The American Dead 37 (2010) (‘This statute [UDDA] has been adopted in forty-three states. States that have not adopted the Uniform Definition of Death Act have either adopted their own statutes or developed case law that allows the use of brain death as a standard for death. Brain death has also been adopted as a standard throughout much of the rest of the world’.).

23Determination of Death, Uniform Determination of Death Act § 1 (2015).

24 Commission, supra note 1 at 34.

25 Id. at 34.

26Maanvi Singh, Why Hospitals and Families Still Struggle to Define Death, NPR.org, Jan. 10, 2014, http://www.npr.org/sections/health-shots/2014/01/10/261391130/why-hospitals-and-families-still-struggle-to-define-death (last accessed Oct. 11, 2016).

27New Jersey Declaration of Death Act, N.J. Sess. Law Serv. Ch. 90, 26:6A–5 (1991).

28 Id.

29Alex Napoliello, New Jersey Best Place for Brain-dead Patients, Expert Says, NJ.com, June 20, 2014, http://www.nj.com/news/index.ssf/2014/06/new_jersey_best_place_for_brain-dead_patients_expert_says.html (last accessed Oct. 11, 2016).

30Singh, supra note 26.

31Complaint, McMath v. Rosen. (Cal. Super Ct. Dec. 09, 2015) (No. RG15796121).

32 Id.

33See Commission, supra note 1, at 60.

34See Robert Veatch, The Whole-Brain-Oriented Concept of Death: An Outmoded Philosophical Formulation, 3 J. Thanatol. 13, 23 (1975). See also H. Tristram Englehardt, Jr., Defining Death: A Philosophical Problem for Medicine and Law, 112 Ann. Rev. Respir. Dis. 587 (1975); Jeff McMahan, The Metaphysics of Brain Death, 9 Bioethics 91, 102 (1995).

35Veatch, supra note 34, at 23.

36 Id. at 15.

37 Id.

38 Id.

39McMahan, supra note 34, at 102.

40 Id. at 92.

41 Id. at 117.

42 Id. at 97.

43J.J.C. Smart, The Mind/Brain Identity Theory, The Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/archives/win2014/entries/mind-identity/ (last accessed Oct. 17, 2016).

44McMahan, supra note 34, at 102.

45See John Bickle, Multiple Realizability, The Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/archives/spr2013/entries/multiple-realizability/ (last accessed Oct. 17, 2016).

46See Hilary Putnam, Psychological Predicates, inArt, Mind, and Religion 37–48 (William Capitan & Daniel Merrill eds., 1967) (Making the original argument criticizing identity theories by pointing out their incompatibility with the intuition of multiple realizability).

47 Edward O. Wilson, Consilience: The Unity of Knowledge 105 (1999).

48Janet Levin, Functionalism, The Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/archives/fall2013/entries/functionalism/ (last accessed Oct. 17, 2016).

49 Commission, supra note 1, at 59.

50 Id.

51 Id. at 40.

52 President's Council On Bioethics, Controversies In The Determination Of Death 17–19 (2008).

53James Bernat, The Whole-Brain Concept of Death Remains Optimum Public Policy, 34 J. L. Med. & Ethics 35, 41 (2006).

54Sam Kean, The Audacious Plan to Save This Man's Life by Transplanting His Head, The Atlantic, Sept. 2016.

55See Id.; also see Nita Farahany, Can You Legally Consent to a Head Transplant?, The Washington Post, Aug. 25, 2016, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/25/can-you-legally-consent-to-a-head-transplant/?utm_term=.b75713e53b0d (last accessed Sept. 20, 2016).

56Health Resources and Services Administration, Organ Procurement and Transplantation Network, https://optn.transplant.hrsa.gov/ (last accessed Dec.17, 2015).

57 Id.

58 The Need is Real: Data, ORGANDONOR.GOV, http://www.organdonor.gov/about/data.html (last accessed Dec. 17, 2015).

59See John A. Robertson, The Dead Donor Rule, 29 Hastings ctr. Rep. 6, 6 (1999).

60This could perhaps be done with a religious exemption such as the one in New Jersey.

Death and Dying

"Preparing for death may be the most difficult exam of all, but it is one that will, finally, free us to live."
........................................................................Pauline W. Chen, Final Exam: A surgeon's reflections on mortality

I. death

Phases of death

agonal ("struggle"): collapse of physical systems as the heart stops beating and blood (oxygen & glucose) is no longer available to organs of the body

clinical death: the cessation of heartbeat, circulation, breathing, and brain functioning; for a brief interval resuscitation is possible

mortality: permanent death

Definitions of death

traditional criteria: absence of heartbeat and respiration

brain death: irreversible cessation of all activity in the brain and brain stem (which controls essential reflexes)

persistent vegetative state: cerebral cortex no longer shows electrical activity but the brain stem remains active

Anxiety and fear of death

death anxiety: fear of death and/or the process of death

Kubler-Ross's theory: stages of dying

stages in response to knowledge of impending death






evaluation of Kubler-Ross

stages are not a fixed sequence

best viewed as coping responses

II. Ways of dying

Traditional places of death



nursing home


Death with dignity

What makes for a "good death"?

Euthanasia & "right to die"

euthanasia: ending the life of a person suffering from an incurable condition

passive euthanasia: withhold life-sustaining treatment, permitting a "natural" death

advance medical directive: written statement of desired medical treatment should a person become incurably ill

living will: specified treatments an individual wants or does not want if they become incapacitated (coma) or terminally ill

durable power of attorney for health care: authorized appointment of another person to make health-care decisions for an individual if they become incapacitated

voluntary active euthanasia: other agents (doctors or others) act directly, at individual's request, to end suffering before a natural end to life

assisted suicide

III. Grief and Bereavement

bereavement: experience of losing a loved one by death

grief: intense physiological and psychological distress

anticipatory grieving: recognizing that the loss is inevitable and preparing emotionally for it

sudden, unanticipated deaths vs. protracted, expected deaths

mourning: cultural expressions of bereavement and grief; our customs for dealing with death