The Evolution of the Legal Definition of Death

Tillman Rodabough. Handbook of Death and Dying. Editor: Clifton D Bryant. Volume 1. Thousand Oaks, CA: Sage Reference, 2003.

The practice of medicine was in its infancy in ancient Egypt thousands of years ago (Ghalioungui 1963), and the problems associated with defining death medically may have originated in that time, from people’s witnessing various forms of death. When a person’s breath and heartbeat cease, he or she often appears to be sleeping, and the ancient Egyptians referred to death as “protracted sleep.” The mythology of the early Greeks also referred to this observed relationship: Hypnos, the god of sleep, was the brother of Thanatos, the god of death (Ghalioungui 1963).

A few thousand years later and a few hundred years ago, medicine had evolved little. The field of medical education was limited to the teaching supplied by mentors already in the medical profession, a few books about medicine, and rudimentary medical schools. In the next few hundred years, medical education blossomed into a widespread world of well-equipped, technologically advanced medical schools educating many new doctors each year. As medicine moved beyond the time when a black bag contained most of the physician’s tools to a period when hundreds of instruments and machines are available to facilitate the support and recovery of human life, the definition of death underwent a number of changes.

As technology has improved the ability of medical personnel to prolong life, the line between life and death has become increasingly blurred. Yet there have always been reasons that a sharp demarcation between the two has been desirable. For example, in 1564, a Spanish anatomist named Vesalius is said to have conducted an autopsy in front of a crowd in Madrid. When he opened the thorax of the nobleman who had been his patient, the man’s heart was still beating. As a result of this debacle, Vesalius was compelled to leave Spain (Reis n.d.). Similarly, a century ago, avoiding premature interment was the major reason people were concerned with determining an individual’s time of death. Such guarantees against burying the living as tying strings between bells and the fingers of the recently dead (so that the bells would ring if they “awoke”) and the practice of the “death watch” to make sure a person was actually dead (Congdon 1977) became unnecessary with the invention of the stethoscope in the mid-1800s. Later, the widespread practice of embalming had the unintended function of precluding premature burial, because the expulsion of blood under pressure at the beginning of the embalming process would notify the embalmer that the heart was still functioning. The certification of death, required by the state, verifies for society that one of its members is gone. This certification serves as a signal for the family to reorganize life without the deceased person and for societal institutions to do such things as pay insurance, stop social security payments, and record the death in mortality statistics.

Historical Definitions of Death

According to Black’s Law Dictionary, death is “the ending of life; the cessation of all vital functions and signs” (Garner 1999:11). This definition seems clear enough until one considers all the components of death and their implications. First, deaths can be divided into several types. Local death refers to the death occurring constantly in all parts of the living body, where individual cells are being constantly cast off and replaced by new ones. General death refers to the death of the body as a whole—that is, somatic or systemic death—and tissue death. Systemic death refers to the absolute cessation of the functioning of the brain, the circulatory organs, and the respiratory organs as well as the complete loss of all vital actions. The whole body dies first and the tissues later (see the On-Line Medical Dictionary at Today, death is as much a legal matter as a medical one (Mathieu 1988). Determining when a person is dead is not always easy, because the answers change over time.

Death occurs at a number of different levels. Somatic death, the death of the organism as a whole, usually precedes the deaths of individual organs, cells, and parts of cells. This death is marked by cessation of heartbeat, respiration, movement, reflexes, and brain activity. The precise time of somatic death is sometimes difficult to determine, because such transient states as fainting, trance, and coma can closely resemble it (Frederick 2001). Below, I discuss some of the various signs that have been taken as indicators of death, taking them in order roughly from past to present.

Soul Departure

The departure of the soul is perhaps the oldest definition of death; it is certainly one of the oldest ways of viewing death. According to this concept, death occurs when the spirit or the soul leaves the body. But what is the spirit or the soul? Some use the terms spirit and soul as synonyms, whereas some use the two words to refer to separate entities. Although some individuals working in the parapsychology tradition have recorded what they believe to be energy outbursts from bodies at the time of death, such findings are difficult, if not impossible, to verify scientifically. The question of such phenomena might best be left to religious tradition.

The idea that a soul leaves the body at death is the source of some controversy in debates between centralists and decentralists. Centralist theory focuses on the individual’s vital force, the breath and blood of the individual, and where it resides (Powner, Ackerman, and Grenvik 1996). From the centralist perspective, a single organ, the heart or the brain, is responsible for life (Veatch 1976). Decentralists, in contrast, believe that life is present throughout all organs, tissues, and cells of the body (Powner et al. 1996). Decentralist theory focuses more on the loss of the soul than on the cessation of body fluids as the major contributor to death—a view highly influenced by religious thought (Lamb 1985).


A sure sign of cell death, decay appeared as an unintentional indicator during the long wakes and delayed funerals of the past. In earlier times, bodies were kept warm through the application of mustard poultices. This practice helped to maintain life in those mistakenly identified as dead and hastened putrefaction in those actually dead. Thus living persons whose heartbeat and respiration were undetected could revive. The cool mortuaries of today make such mistakes more difficult to discover until embalming begins. As noted above, blood expelled from the body under pressure when an incision is made to begin the embalming process is a sure indicator of a beating heart. The process rarely ever gets that far, however, because current methods of detecting life (or determining death) are much more sophisticated than those of the past.


Probably the most widely recognized indicator of death used for the longest period of time was simply the cessation of breathing. A few generations ago, the term suspended animation was applied to persons who appeared to have stopped breathing for a period of time and then resumed breathing or “came back to life.” Respiration had not actually ceased in such cases; rather, it was simply so shallow that it was not easily detected with available technology. To make certain that a person had died before entombment, someone would hold a piece of glass or a feather to the individual’s nostrils to determine if breath was absent. Apparent lack of respiration is a poor indicator of death, but it was the best indicator available for many years.


The heart held central position for scientists from the 17th century into the 20th century, because observations from decapitations and other traumatic casualties confirmed that organs seemed to lose function sequentially, with the heart continuing to beat after the lungs and brain ceased to function (Pernick 1988). The traditional cardiopulmonary standard was the measure used during most of the 20th century to determine the presence of life. Because heartbeat can be faint and difficult to detect, this indicator was combined with others, such as changes in the eyes, insensibility to electrical stimuli, rigor mortis, pallor, hypostasis, and relaxation of the sphincters. That is, death would be considered to be indicated if the body has no detectable heartbeat, the eyes are dilated, there is no physiological response to electric shock, the body stiffens and is pale, blood settles in the bottom of the body, and the bowels and bladder release their contents.

Prior to the 1960s, death was understood and diagnosed primarily through these cardiopulmonary criteria (Byrne 2000). Until the 20th century, physicians had few administrable remedies for illness; some patients got well despite such “treatments” as bloodletting and prescriptions of whiskey as much as because of them. New frontiers were forged in technology during the 20th century with the development of such life-saving equipment as the defibrillator and the ventilator. For a physician to diagnose death, all forms of reanimation now had to fail (Powner et al. 1996). Many first began to question seriously the legal definition of death in 1967, the year of the first successful human heart transplant. If the heart could be bypassed or entirely replaced, it might not be the “seat of life” (Lyons 1970). The definition of death had to evolve again.

Problems Created By Past Definitions of Death

Medical definitions of death are influenced by philosophy, theology, and technology, as well as by political and social priorities (Powner et al. 1996). The medical technology available today raises many questions that were never considered a century ago, questions concerning such issues as when heroic efforts to save a life should stop, when the transplantation of tissue from a given individual becomes legal, and how some insurance claims and wills can be settled. The historical definitions of death, as discussed above, were less than adequate for addressing such issues.

Heroic Efforts

Today, physicians have many tools to use in trying to keep an individual alive, including the injection of chemicals, manual stimulation, electroshock, surgical invasion, and mechanical supports. Medical technology is improving constantly, pushing back the line of death. The first result of a determination that death has occurred is the release of the physician and the patient’s family from continuous and burdensome efforts to continue treatment. The question becomes, When should a physician stop such efforts?


Up until the mid-20th century, death determination was relatively straightforward. A person was defined as dead when his or her respiratory and circulatory function ceased. However, with the advent of modern medical technology and the ability to support individual organs even when other systems fail, death became more difficult to define. Before medicine made these technological advancements, a person died all at once. When scientists realized that the part of the brain that controls respiration might be destroyed while ventilators maintain respiration, the need to harvest organs for transplantation helped to prompt a reassessment of the legal definition of death (Freer 2001). Transplant medicine is dependent on “beating-heart cadavers” and the current definition of death. Many health care professionals like to think that the significance of death is not found in the death of the body, but in the death of the person. However, depending on the definition of death, the death of the body may precede the death of the person.


The definition of death can add to the complications faced by children in the multitude of recombined families that exist today. For example, when both parents in a “blended” family die in an automobile accident, what each of their children will inherit is frequently determined by which parent died last—particularly if there is no will. Given the growing divorce and remarriage rates, it is likely that many parents who are in their second or later marriages will die in accidents, some together with their current spouses. This is a problem that appears to be likely to increase rather than decrease in the future.


Life insurance has nothing to do with life but everything to do with death and who receives how much money after an individual dies. The line where legal death occurs becomes especially critical when injured or ill persons are placed on life support long enough to determine whether they will resume normal life functions on their own. Suppose a person’s life insurance policy expires while he or she is on life support, and the body is later determined to be nonviable and is disconnected from life support. Was the person dead when placed on life support, did he or she die while on life support, or did death occur only when the person was disconnected from the life-support machinery? The answers to such questions can make a considerable difference financially to family members and to insurance companies.

Obviously, earlier definitions of death left many questions unanswered, so with more sophisticated technology the definition of death evolved further.

New Definitions of Death

Organs to be transplanted must be alive, and, in most cases, the donor must be dead. At any given time, large numbers of persons across the United States are waiting for organ transplants. For example, according to the United Network for Organ Sharing (UNOS), which provides daily updates on its Web site (, as of June 30, 2002, more than 82,000 individuals were registered on national waiting lists for transplants. Of these, 52,686 individuals were waiting for kidney transplants; the rest were waiting for liver transplants (17,515), pancreas transplants (1,313), kidney-pancreas transplants (2,526), intestine transplants (197), heart transplants (4,161), lung transplants (3,789), and heart-lung transplants (212). Additionally, many people are waiting for transplants of blood and blood components, skin grafts, grafts of bone and connective tissue, and transplants of eye and ocular components.

The line between life and death becomes especially critical in situations involving potential organ donors. Organs die at different rates, and some can survive for some time, depending on how death is defined. Brain cells may survive for no more than 5 minutes after somatic death, whereas heart cells can survive for about 15 minutes and kidney cells for about 30 minutes (Frederick 2001). When “the life of one depends upon the death of another” (Byrne 2000), the line between life and death is especially important. Waiting too long after a donor’s death to harvest an organ can affect the quality of the organ, and the health and life of a transplant patient is directly connected to the viability of the transplanted tissue. According to the National Kidney Foundation (2002), 22,953 kidney transplants took place in the United States in 2000. These operations brought extended life to some and improved the quality of life for many more. According to data on the UNOS Web site, from 1992 through 2001, 44,288 patients on transplant waiting lists died while waiting for organs. The need to facilitate the harvesting of organs for transplantation has contributed to changes in the legal definition of death.

Brain Death

According to Black’s Law Dictionary, brain death is “the bodily condition of showing no response to external stimuli, no spontaneous movements, no breath, no reflexes, and a flat reading (usually for at least 24 hours) on a machine that measures the brain’s electrical activity” (Garner 1999:11). The cessation of brain function has become the criterion for death determination not only because it is more sophisticated than prior criteria but because it allows doctors to harvest more and better organs for transplantation. The term brain-dead was coined in 1965 when surgeons performed a renal transplant using organs donated from a patient with no recorded brain waves (Powner et al. 1996).

Incorporating brain death into consideration along with the cessation of respiration and circulation led Vincent Collins to develop the “dying score” to determine the occurrence of death (Lyons 1970). Collins stressed the importance of heart, brain, and lung functioning as a whole rather than as independent parts. According to this definition, death is caused by the failure of the main organs combined. Collins’s dying score was based on five physiological functions: cerebral, reflex, respiratory, circulatory, and cardiac. Each was scored from two to zero, according to its presence, potential, or absence. A score of five was the dividing line, with five or higher indicating life and less than five indicating possible to imminent death. This system represented a further move toward the quantification of death.

Two particular historical events have forever changed the legal definition of death. The first occurred in 1968, when a group of physicians, theologians, lawyers, and philosophers on the Harvard University faculty formed the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death (1968). This committee established the following medical criteria (known as the Harvard criteria) for a diagnosis of irreversible coma:

  1. Unreceptivity and unresponsivity, in which there is a “total unawareness of externally applied stimuli.”
  2. No movements or breathing for at least one hour while observed by physicians (this means no spontaneous respiration and no spontaneous muscle movement).
  3. No reflexes, such as eye movement or tendon reflexes. The usual reflexes are absent in response to a neurophysiological examination, such as the pupil constricting when a light is shined in the eye.
  4. A flat electroencephalogram (that is, when electrodes attached to the scalp record electrical activity on a paper printout or digital display, rather than the normal peaks and valleys, the device records an essentially flat line). There is no circulation to or within the brain (without the oxygen provided by circulating blood, the brain quickly dies).

These criteria were soon adopted widely as the criteria for brain death, and most physicians accepted brain death as equivalent to patient death. This definition became extremely important as the all-encompassing definition of death because no case has yet been found in which a person meeting all of these criteria has ever regained brain function even with continued respiration. A diagnosis of brain death allows medical personnel to turn off the patient’s respirator.

The second event occurred in 1981, when a presidential commission was created to establish a definition of death. This commission used the Harvard criteria to conclude that in order to come to a diagnosis of death, physicians must establish the absence of brain activity (Burnell 1993; Medical Consultants 1981). No bodily functions can occur spontaneously without the help of the brain, so death occurs at the moment the brain activity necessary to control autonomous biological functions ceases. Patients are medically and legally dead when these criteria are met, and no further medical treatment is required (McCuen and Boucher 1985). The current determinant of death is variously worded in state statutes as “total and irreversible cessation of brain function,” “no spontaneous brain function,” “irreversible cessation of the functioning of the entire brain, including the brain stem,” or something similar. The President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research merged all of the state statutes into the Uniform Determination of Death Act (UDDA).

For physicians to declare a person brain-dead, they must monitor the patient’s brain function for an appropriate period of time in the intensive care unit of a hospital (Mathieu 1988). The criteria for brain death are absence of eye response, absence of verbal and motor response to pain, and loss of brain stem reflexes (Campbell 1992), which include pupil responses, corneal reflexes, caloric response to stimulation, cough reflexes, and response to hypercarbia.

The two landmark reports described above moved medicine away from the traditional standards of heartbeat and respiration in defining death. Today, all 50 states and the District of Columbia follow the UDDA in recognizing whole-brain death as a legal standard of death. This standard of irreversible cessation of all functions of the entire brain does not replace the cardiopulmonary standard, however; rather, the UDDA recognizes either standard—whichever applies first (DeGrazia 1998). The consequence is that a person can be legally dead even if his or her cardiopulmonary system continues to function. If the brain is dead, any artificially induced heartbeat merely pumps blood through the dead body.

Several types of death are recognized under varying circumstances: heart-lung death, brain death, higher-brain death, and biological death (the ceasing of all cellular activity). Other permutations include irreversible loss of cellular brain structure, loss of both brain and spinal cord function, and varying interpretations of “higher-brain death,” meaning the neocortex or the sensory cortex, above the brain stem or the cerebrum, and the cerebral cortex. Youngner, Arnold, and Schapiro (1999) raise some important issues about brain death in their edited volume examining contemporary controversies surrounding the definition of death. As they point out, whatever the standards for determining death, once those standards have been met, a person is dead. Without a brain stem, the body is merely a hopeless collection of organs, incapable of human vitality. The diagnosis of brain death has been shown to be inconsistent from one hospital to another and from one physician to another, and Youngner et al. ask how the public can or should be told that the line between life and death is somewhat imprecise even for physicians, that some brain functions are important but others can be ignored, and that whole-brain death can be abandoned in favor of brain stem death.

Pronouncing Death

Only physicians can determine the success or failure of specific treatments and make diagnoses and prognoses; therefore, only physicians must determine whether death has occurred. Only competent patients can permit or refuse treatment (Childress 1981). Defining death is an important legal factor and must not deny the rights of a patient. A dying patient who does not meet the criteria for brain death but who has decided that he or she would rather die has a legal right to prepare advance directives. The most common of these is the living will—a document written by the patient and directed to his or her family members, physician, clergyman, and lawyer, describing the patient’s wishes concerning his or her treatment and death. A patient’s written request not to be kept alive by artificial means or heroic measures is not complete unless the patient has signed and dated it in front of a witness, who must also sign the document (Brody 1993). Many states have passed “natural death acts” that give legal status to living wills. However, if some members of a patient’s family are opposed to following the “no heroic measures” directions set out in a living will, some physicians will keep the patient alive, erring on the side of caution to avoid legal repercussions and lawsuits. Although the terms of a living will are not legally binding on the patient’s family members, most families respect the wishes of their loved ones as laid out in such documents.

Public attitudes toward end-of-life decisions in the United States have moved in the direction of giving individuals the opportunity to decide what should happen to them at the end of their lives. Although there are some limitations, such as denial of physician-assisted suicide in most states, persons do have the right to make decisions about their care as long as they are competent. Even if a person is no longer competent, his or her wishes will be honored if he or she has previously prepared a living will or has given durable power of attorney for health care to a surrogate who can make medical decisions.

If no such plans have been made, the decision-making responsibility for patients declared incompetent is passed on to the family, a hospital committee, or the courts. If family members are available and know the wishes of the patient, they decide; if technical expertise is needed, the committee decides; and if no one has clear responsibility, the courts decide. In this case, the “best interests of the patient” serve as the guide for making decisions.

Different people may certify death (legally declare that death has occurred) under various circumstances. Typically, when an attending physician is present, he or she pronounces the death and states the official time of death. The physician must complete and sign the death certificate, certifying the cause and place of death, and the certificate must be recorded with whichever state entity is in charge of keeping vital statistics; in many states this is the department of health. States use the registration of death certificates to calculate death rates, which are part of the archival record of particular importance to statisticians and demographers in determining population characteristics. These records, combined with data from the U.S. Bureau of the Census, allow government officials to determine needs and allocations for specific geographic areas of the population. Most important, official certification of death is needed before certain hospital procedures can be performed, such as autopsies, organ transplantation, and the removal of all medical therapy or life-support devices (Mathieu 1988).

When an individual dies at home or in some other nonmedical location, a person other than a physician may declare that death has officially occurred. Most frequently, this is the coroner or the person designated to fill a comparable position in the state or county where the death has taken place. In some states, and in certain counties in other states, this person must possess a medical degree, but in some locales this may be a person with no medical expertise who works in the sheriff’s office.

Problems Created By the New Definitions of Death

Today, the brain-death definition of death needs to be clarified, an action that has become increasingly difficult to take because of competing interests. The Uniform Determination of Death Act states that once irreversible cessation of circulatory, respiratory, and brain function has occurred, death is to be announced. The announcement of death is to be made in accordance with the standards of the hospital, which means that the determination of death is basically left in the hands of individual hospitals. Because physicians faced a problem with defining death due to controversy surrounding organ transplantations, the American Medical Association recommended an extension to the Uniform Determination of Death Act in 1996 that required at least two doctors not involved with any related transplants to pronounce a patient dead (Kress 1998).

The term brain death, however, can refer to several conditions. Whole-brain death, as discussed above, refers to the irreversible destruction of all neural structures within the brain. Neocortical death, in contrast, refers to the destruction of “the cerebral cortex—the most highly differentiated brain cells, considered to be of critical importance for intellectual functioning” (Kastenbaum 2001:39).

Higher-Brain Death

The whole-brain death discussed above is the irreversible destruction of all neural structures within the brain. This, the most conservative definition, includes both hemispheres and the cerebral cortex, the cerebellum, and the brain stem. Some have argued that the whole-brain standard is inadequate and assert that the standard should be irreversible cessation of the capacity for consciousness, which can be met prior to whole-brain death that includes the death of the brain stem. Neocortical death allows spontaneous respiration and heartbeat but not consciousness, thus, according to the higher-brain-death standard, a person is considered dead when the upper region of his or her brain is inactive. A patient in a permanent coma or a permanent vegetative state and a child with anencephaly, therefore, meet the higher-brain, but not the whole-brain, standard of death (DeGrazia 1998).

The term persistent vegetative state (PVS) refers to a clinical condition of complete unawareness of self and the environment accompanied by sleep-wake cycles. People in this state have suffered neocortical injuries; this region of the brain has been destroyed by either disease or trauma. Hypothalamic and brain stem autonomic functions are at lease partially preserved, along with cranial-nerve and spinal reflexes. Persons in a vegetative state show no sustained, purposeful responses to any stimuli—visual, auditory, tactile, or noxious. They do not comprehend language or show bladder or bowel control. A diagnosis of PVS is made if the above conditions are present 1 month after any of the following three major causes: brain injury, degenerative or developmental or metabolic brain disorders, or severe congenital malformations of the nervous system (Multi-Society Task Force on PVS 1994). The question is, When is the patient dead “enough” without having a possibility of living a complete, functional life (Smith 1993)? A person in an irreversible coma is a person who has sustained such brain damage that there is no possibility of his or her returning to any form of consciousness.

The outcome of PVS depends on its cause. It is unlikely that an individual will recover consciousness from a posttraumatic PVS after 12 months, from a nontraumatic PVS after 3 months, and from degenerative or metabolic disorders or congenital malformations after some amount of time between 3 and 12 months. Remaining life span for those with PVS usually ranges from 2 to 5 years, with survival longer than 10 years quite unusual (Multi-Society Task Force on PVS, 1994).

Using organs from those who have suffered higher-brain death would greatly benefit many individuals who are dying as they wait for organ transplantation, but persons in a persistent vegetative state can regain consciousness again at any time. Therefore, a protocol has been set according to which patients in a vegetative state cannot be declared brain-dead until they have been in this state for 12 months (Moon 2002). This may delay the availability of some organs for transplants, by pushing back the legal line between life and death, but it provides protection against the premature taking of human life. Therefore, the more conservative standard, whole-brain death, is the most frequently used biomedical definition today in regulatory documents. The certification of death is delayed as long as there is any observable functioning in any area of the brain, and this sharply reduces the possibility of error. There is a tendency to blur the distinction between “cannot recover” and “already dead,” but use of the standard of whole-brain death minimizes the possibility that anyone will have organs harvested for transplants while he or she is still alive.

If higher-brain death were the only criterion for determining death, then people in PVS and children with anencephaly would be considered dead. Anencephalic infants are those born without part of the skull and with either a dysfunctional forebrain or no forebrain at all. These babies can survive for days or even months because of their functioning brain stems, but they never gain consciousness. Many fewer anencephalic children are born than there are people in a persistent vegetative state; this is one of the reasons there are fewer organs available for transplant for babies and young children. It often takes a long time for anencephalic children to be declared whole-brain-dead, and because of this their organs are frequently not usable for transplantation. Because of the scarcity of suitable organs for transplant, half of the children waiting for transplants die before organs can be found (Kothari and Mehta n.d.).

Until a few years ago, many physicians and researchers thought that within a few weeks of brain death, the entire body system would undergo general collapse (Kastenbaum 2001). They had to revise their view, however, given the evidence provided by striking instances in which pregnant women who had suffered traumas resulting in brain death were maintained on life support for months to provide crucial time for their fetuses to develop.

Eelco Wijdicks recently surveyed brain-death criteria throughout the world and found the presence of guidelines concerning brain death in 70 of the 80 countries responding, as well as legal standards on organ donation present in 55 (cited in American Academy of Neurology 2002). Uniform agreement existed on the neurological examination used to determine brain death, but there were variations in the numbers of physicians required, their levels of experience, their specialties, and their academic ranks, as well as in the confirmatory tests to be used. The differences in existing protocols might be the results of the collective decisions of task forces. Wijdicks observes that the guidelines used in many countries seem unnecessarily complicated, and he recommends that some international standardization be considered.

Not everyone is satisfied with the way the legal definition of death has evolved; for example, some observers, such as Byrne (1988), have expressed discomfort with the variabilities involved in declarations of death. They suggest that under the current definition of death, the life of one patient is risked to benefit another. They seem to advocate an “all or nothing” approach: A person is either all dead or all alive, with no in between. They note that when organs are to be removed from the deceased, it is best to err on the conservative side. If any part of the person can be treated as alive, then that person is alive and cannot have his or her organs removed. Byrne (1988) asserts that brainrelated criteria for death are not based on valid scientific data, because the Harvard Medical School’s committee published its criteria without making any reference to scientific reports or patient data. He notes that the Harvard criteria deal only with the cessation of function, not the destruction of the brain or the organism, and he concludes that death should not be declared until the entire brain and the respiratory and circulatory systems are destroyed (see also Evers and Byrne 1990).

On the other end of the debate is the question of whether medical personnel improperly subject the relatives of brain-dead organ donors to the prolonged living-death existence of their loved ones until potential recipients can be located. As medical technology has advanced, the numbers of possible donor sources have increased; these now include live human donors, cadavers, animals, and fetuses along with anencephalic infants and brain-dead donors (Banks 1995). However, the use of each kind of source presents its own unique ethical problems. How to maintain viable body parts while assuring that the donor is dead is only one of many issues. For example, the FBI recently investigated charges that the University of Texas Medical Branch was selling donated body parts and was not testing body parts used for surgical study or transplant for infectious diseases (Lozano 2002). Clearly, many factors must be balanced in the life-and-death equation represented by organ transplantation.


Although the legal definition of death has been comparatively stable for more than 20 years now, new technological advances and philosophical conflicts will require that the definition be more exact in the future, resulting in individuals’ being pronounced legally dead a little earlier or a little later. No matter which way the legal line between life and death moves, the intent will be to protect not only the lives of dying persons but the lives of those who may benefit from their deaths.