Brain Death - Legal History

Legal History

Traditionally, both the legal and medical communities determined death through the end of certain bodily functions, especially respiration and heartbeat. With the increasing ability of the medical community to resuscitate people with no respiration, heartbeat, or other external signs of life, the need for a better definition of death became obvious. This need gained greater urgency with the widespread use of life support equipment, which can maintain body functions indefinitely, as well as rising capabilities and demand for organ transplantation.

Since the 1960s, laws on determining death have therefore been implemented in all countries with active organ transplantation programs. The first European country to adopt brain death as a legal definition (or indicator) of death was Finland in 1971. In the United States, Kansas enacted a similar law earlier.

An ad hoc committee at Harvard Medical School published a pivotal 1968 report to define irreversible coma. The Harvard criteria gradually gained consensus towards what is now known as brain death. In the wake of the 1976 Karen Ann Quinlan controversy, state legislatures in the United States moved to accept brain death as an acceptable indication of death. Finally, a presidential commission issued a landmark 1981 report – Defining Death: Medical, Legal, and Ethical Issues in the Determination of Death – that rejected the "higher brain" approach to death in favor of a "whole brain" definition. This report was the basis for the Uniform Determination of Death Act, which is now the law in almost all fifty states. Today, both the legal and medical communities in the US use "brain death" as a legal definition of death, allowing a person to be declared legally dead even if life support equipment keeps the body's metabolic processes working.

In the UK the Royal College of Physicians reported in 1976 and 1977, rejecting the whole brain death criterion as scientifically worthless, and adopting the notion of irreversible brain stem dysfunction as an indicator of death.