¹ For purposes of this Note, “life” will refer to that period in which a human being is considered alive, from onset to cessation. It will not incorporate the concept of “potential life” which is used in ethical and religious debates. “Death” is used interchangeably with cessation of life. Throughout, the phrase “brain death theory of death” will refer to the theory alternately known as “brain life theory of life.” Similarly, “heart-lung definition of death” will refer to the theory alternately known as the “heart-lung theory of life.“

² See Showalter, Determining Death: The Legal and Theological Aspects of Brain-Related Criteria, 27 CATH. LAW. 112 (1982).

³ For a discussion of the medicoethical implications of adopting consistent criteria defining life, see Goldenring, , The Brain-Life Theory: Towards A Consistent Biological Definition of Humanness, 11 J. MED. ETHICS 198 (1985)Google Scholar. The Article urges the adoption of brain-life criteria to provide a consistent medical definition of the onset and the cessation of life and argues that criteria based on viability should be abandoned. See also Kennedy, & Nicolazzo, , Abortion: Toward A Standard Based Upon Clinical Medical Signs of Life and Death, 23 J. FAM. L. 545 (1984-85)Google Scholar; Note, Brain Birth: A Proposal For Defining When A Fetus Is Entitled To Human Life Status, 59 S. CAL. L. REV. 1061 (1986). These Articles propose that abandoning viability-based criteria, and adopting consistent objective criteria based on the brain-life theory, provides a more workable basis within abortion legislation for determining life in a fetus.

⁴ Showalter, supra note 2, at 114.

⁵ Singer, , Unsanctifying Human Life, in ETHICAL ISSUES RELATING TO LIFE AND DEATH 41, 44-50 (J. Ladd ed. 1979)Google Scholar [hereinafter ETHICAL ISSUES RELATING TO LIFE AND DEATH]; Tooley, Decisions To Terminate Life and The Concept Of Death, in ETHICAL ISSUES RELATING TO LIFE AND DEATH, supra, at 62, 64-66. See generally Annas, Ethical Principles for The Care of Imperiled Newborns — Toward an Ethic of Ambiguity, in WHICH BABIES SHALL LIVE? 83-135 (T. Murray & A. Caplan eds. 1987).

⁶ Roe v. Wade, 410 U.S. 113, 159 (1973); J., MOHR, ABORTION IN AMERICA: THE ORIGINS AND EVOLUTION OF NATIONAL POLICY 1800-1900 246 (1978)Google Scholar (Afterword: The Roe Decision and the End of an Era).

⁷ Roe, 410 U.S. at 162-63. See also Note, Equality for the Elderly Incompetent: A Proposal for Dignified Death, 39 STAN. L. REV. 689, 694-95 (1987).

⁸ UNIF. DETERMINATION OF DEATH ACT, § 1, 12 U.L.A. 322 (Supp. 1990).

⁹ Ladd, The Definition of Death and the Right to Die, in ETHICAL ISSUES RELATING TO LIFE AND DEATH supra note 5, at 118, 119. See also B. BRODY, ABORTION AND THE SANCTITY OF HUMAN LIFE: A PHILOSOPHICAL VIEW 187-89 (1975) (Opposition to Abortion: A Human Rights Approach); Fletcher, Indicators of Humanhood: A Tentative Profile of Man, HASTINGS CENTER REP., NOV., 1972, at 90.

¹⁰ J. MOHR, supra note 6, at 250-60.

¹¹ Id.

¹² Showalter, supra note 2, at 112.

¹³ A Definition of Irreversible Coma: Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death, 205 J. A.M.A. 337, 337-401 (1968) [hereinafter A Definition of Irreversible Coma]. See B., BRODYGoogle Scholar, supra note 9, at 187.

¹⁴ G., ANNAS, S., LAW, R., ROSENBLATT & K., WING, AMERICAN HEALTH LAW 867 (1990)Google Scholar; Baby's Grieving Parents Sue to Keep Respirator On, N.Y. Times, Oct. 17, 1989, at Bl, col. 2.

¹⁵ See infra notes 16-110 and accompanying text.

¹⁶ For the definition of “abortion,” see K., MOORE, THE DEVELOPING HUMAN: CLINICALLY ORIENTED EMBRYOLOGY 1, 46 (4th ed. 1988)Google Scholar. Abortion is defined as the birth of an embryo before it is viable (mature enough to survive outside the uterus). All terminations of pregnancy that occur or are induced before twenty weeks are called abortions. Id. About 15% of all recognized pregnancies end in spontaneous abortions, usually during the first twelve weeks. Id. Legal induced abortions are performed through a process called suction curetage, in which the embryo and its membranes are medically evacuated from the uterus. Therapeutic abortions are induced because of the mother's poor health or to prevent the birth of a severely malformed child (for example, one without a brain). Id.

¹⁷ J . MOHR, supra note 6, at 259-60. Between the 19th and mid-20th centuries, abortion was an issue debated at the state level. During the 1960s, it appeared that revision of the nation's abortion policies would proceed in the same fashion, state by state. However, the Supreme Court's decision in Roe v. Wade, 410 U.S. 113 (1973), dramatically accelerated the slow process of revision on a state-by-state basis. J. MOHR, supra note 6, at 259-60.

¹⁸ J. MOHR, supra note 6, at 250-53. In the 1950s and 1960s, overpopulation was a major concern. “[B]irth control was openly discussed in governmental forums and policymakers moved to encourage contraceptive practices among the American people.” Id. at 251. In 1962 quality of life, and not just biological life, became increasingly important when “it was discovered that women who had taken the drug thalidomide during pregnancy were quite likely to give birth to deformed children… . Abortion no longer seemed to involve a choice between absolutes — life or not life — but matters of degree — what kind of life under what kind of conditions.” Id. at 252.

¹⁹ Kasindorf, Abortion in New York, N.Y. MAG., Sept. 18, 1989, at 32, 34-35.

²⁰ Roe, 410 U.S. at 163.

²¹ Id.; J. MOHR, supra note 6, at 247.

²² Roe, 410 U.S. at 116.

²³ Id. at 163.

²⁴ Id. at 148-49. These concerns included the changing views of the hazard to a woman having an abortion; the protection of prenatal life; a woman's right to privacy; and the Catholic Church's recognition of the existence of life from the moment of conception.

²⁵ To balance the rights and interests of the mother against the rights and interests of the state, the Roe decision developed the trimester framework. From conception to the end of the first trimester, the abortion decision and its effectuation is left to the woman and her physician. From the end of the first trimester until viability — usually at 28 weeks post-conception, but possibly as early as 24 weeks — the state may regulate, but not prohibit, the abortion procedure in ways reasonably related to promotion of the state's interest in protecting maternal life. After viability the state, in promoting its interest in the “potentiality of human life,” may regulate and even proscribe the abortion procedure except where such a procedure is necessary to preserve the life or health of the mother. Id. at 163-65.

²⁶ Roe, 410 U.S. at 163-65; Webster v. Reproductive Health Servs., 109 S. Ct. 3040, 3073 (1989) (Blackmun, J., concurring in part and dissenting in part) (“The trimester framework simply defines and limits that right to privacy in the abortion context to accommodate, not destroy, a state's legitimate interest in protecting the health of pregnant women and in preserving potential human life.“).

²⁷ Roe, 410 U.S. at 162.

²⁸ See supra note 25.

²⁹ Roe, 410 U.S. at 165-66.

³⁰ Doe v. Bolton, 410 U.S. 179 (1973).

³¹ Id. at 191.

³² Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

³³ Id. at 3054. Before a physician performs an abortion on a woman the physician reasonably believes has been carrying an unborn child for 20 or more weeks, Missouri requires that the physician perform medical examinations useful in making subsidiary findings as to viability. Webster's affirmation of the requirement of viability testing after 20 weeks leads to individual medical determinations of viability, whereas Roe's strict trimester standard uniformly establishes viability at 28 weeks gestation.

³⁴ See infra notes 185-99 and accompanying text.

³⁵ Mo. ANN. STAT. § 1.205(2) (Vernon 1983 & Supp. 1990).

³⁶ Webster, 109 S. Ct. at 3042. See Tuckers Adm'r v. Lower, No. 2831 (L. & Eq. Ct., Richmond, Va. May 25, 1972); Mo. ANN. STAT. § 1.205 (Vernon 1969 & Supp. 1990).

³⁷ Strict Abortion Bill Passed, Nat'l L.J., July 9, 1990, at 6.

³⁸ E.g., Davis v. Davis, No. E-14496 (Cir. Ct. Blount County, Tenn. Sept. 21, 1989), appeal docketed, No. 180 (Tenn. App. Ct. Oct. 15, 1990). See New Divorce Issue: Embryos’ Status, N.Y. Times, Aug. 8, 1989, at A l1, col. 1; Tennessee Judge Awards Custody of 7 Frozen Embryos to Woman, N.Y. Times, Sept. 22, 1989, at A13, col. 1. In this Tennessee case involving frozen embryos, the trial judge concluded that life begins at conception.

³⁹ See, e.g., Missouri Fetus Unlawfully Jailed, Suit Says, N.Y. Times, Aug. 11, 1989, at B5, col. 3. A pregnant state prisoner has filed suit against the State of Missouri on behalf of her unborn child alleging illegal and involuntary imprisonment of the fetus. The woman contends that if life begins at conception, as stated in Missouri's abortion regulation statute, then the United States Constitution should protect the fetus from illegal imprisonment. The expectant mother's position is based on the argument that if the Missouri law grants a fetus personhood, then the thirteenth amendment protects the fetus from being forced to serve a prison sentence for another person. Farrar v. Acroft, No. 89-04327CVX5 (W.D. Mo. filed Aug. 1, 1989). At the time of this writing, the State's motion to dismiss is pending.

⁴⁰ Chambers, Are Fetal Rights Equal to Infants'?, N.Y. Times, Nov. 16, 1986, at IV-24, col. 1. Minnesota is using such a feticide law to prosecute a man accused of fatally shooting his girlfriend and killing the 28 day-old embryo she was carrying at the time of her death, despite the fact that there is no evidence that either the defendant or his girlfriend knew of the pregnancy. State v. Merrill, No. K48949 (Olmstead County Dist. Ct., Minn, filed Feb. 3, 1989). See Schmidt, Murder Trial Adds Facet to the Abortion Debate, N.Y. Times, June 15, 1990, at B5, col. 3. Although this is not the first prosecution for feticide, it is the first prosecution under a fetal homicide law that does not require the defendant's awareness that the female was pregnant at the time of the crime.

The Minnesota fetal homicide law was enacted in 1985, following the acquittal of a man charged with vehicular manslaughter in an accident that cost a woman the baby she was carrying. Schmidt, supra. Cf. Monico Campos v. Illinois, appeal docketed, No. 88CR-1161 (111. App. Ct. Apr. 28, 1990) (defendant convicted of murder under a statute requiring that a person accused of first degree fetal homicide have knowledge that the victim was pregnant).

Other states recognize fetal homicide or feticide. See, e.g., CAL. PENAL CODE § 187 (Deering 1990) (specifically includes the murder of a fetus with malice aforethought); GA. CODE ANN. § 16-5-80 (1989) (recognizes the crime of feticide); IND. CODE ANN. § 35-42-1-6 (Burns 1989) (feticide statute); S.D. CODIFIED LAWS ANN. § 22-17-6 (1990) (makes any person who “intentionally kills a human fetus by causing unauthorized injury to the mother” guilty of a Class Four felony); 1989 LA. ACTS 777 (defines feticide). But see UTAH CODE ANN. § 76-5-207 (1990) (specifically excludes the death of an unborn fetus from the definition of the “death of another” in automobile homicide).

⁴¹ MINN. STAT. ANN. §§ 609.266-609.268 (West 1987 & Supp. 1990).

⁴² Id. at § 609.266(a).

⁴³ Id. at § 609.2661. See aho S.D. CODIFIED LAWS ANN. § 22-17-6 (1990).

⁴⁴ See Cocaine Use in Pregancy Amounts to Child Abuse a Judge Rules, N.Y. Times, May 4, 1989, at A22, col. 2; Mother Charged After Her Baby Dies of Cocaine, N.Y. Times, May 10, 1989, at A18, col. 1. But see Hollis v. Commonwealth, 652 S.W.2d 61 (KY 1983) (intentionally causing the death of a viable fetus is not criminal homicide); State v. Parsons, 92 N.C. App. 175, 374 S.E.2d 123 (1988) (a living fetus is not a human being for the purpose of defining manslaugh ter); State v. Larsen, 578 P.2d 1280 (Utah 1978) (a person who causes the death of an unborn fetus by negligent operation of an automobile does not commit automobile homicide).

⁴⁵ People v. Stewart, No. M508.197 (San Diego Mun. Ct., Cal. 1987), dismissed, (Feb. 2, 1987). See Davidson, Pregnant Addicts: Drug Babies Push Issue of Fetal Rights, L.A. Times, Apr. 25, 1989, § 1, at 1, col. 1.

⁴⁶ State v.Johnson, No. E89890CFA (Seminole County Ct., Fla. July, 1989). See McNamara, Fetal Endangerment Cases on the Rise, Boston Globe, Oct. 3, 1989, at 1, col. 2.

⁴⁷ People v. Hardy, No. 9031745FH (Muskegon County Cir. Ct., Mich. Feb., 1990), appeal docketed, No. 128458 (Mich. Ct. App. June 4, 1990). See Hoffman, Pregnant, Addicted— and Guilty? N.Y. Times, Aug. 19, 1990, § 6 (Magazine), at 34.

⁴⁸ Commonwealth v. Welch, No. 90CR006 (Boyd County Cir. Ct., Ky. June 1, 1990), appeal docketed, No. 90CA00189, (Ky. Ct. App., June 4, 1990).

⁴⁹ Nightline: Jailing Pregnant Drug Users: Does It Help or Hurt? (ABC television broadcast, June 19, 1990) (transcript on file with American Journal of Law & Medicine).

⁵⁰ See, e.g., Fineman, Pro-Choice Politicking, NEWSWEEK, Oct. 9, 1989, at 36; Greenhouse, High Court Facing Fight On Abortion, Privacy and Death, N.Y. Times, Oct. 2, 1989, at Al, col. 6.

⁵¹ See Roe v. Wade, 410 U.S. 113, 132-52 (1973); B. BRODY, supra note 9, at 188; STEDMAN's MEDICAL DICTIONARY, 1183 (W. Dornette ed., 4th Unabridged Lawyers’ ed. 1976).

⁵² Roe, 410 U.S. at 160.

⁵³ See Hellegers, Fetal Development, THEOLOGICAL STUD., Mar., 1970, at 3-9.

⁵⁴ Despite this, there are still experts who assert that the threshold for fetal viability outside the uterus has been reached. Kolata, Survival of the Fetus: A Barrier is Reached, N.Y. Times, Apr. 18, 1989, at C1, col. 4.

⁵⁵ K. MOORE, supra note 16, at 13.

⁵⁶ Id. at 2, 35, 47.

⁵⁷ Id. at 38.

⁵⁸ Hellegers, supra note 53, at 7. “Embryo” is defined as an organism in the early stages of development; in humans, as the developing organism from conception until approximately the end of the second month of gestation. Developmental stages from the end of the second month of gestation until the time of birth are commonly designated as fetal. STEDMAN's MEDICAL DICTIONARY, supra note 51, at 452-53.

⁵⁹ M. FURUHJELM, A. INGELMAN-SUNDBERC & C. WIRSÉN, A CHILD IS BORN 40-41 (1986) [hereinafter M. FURUHJELM].

⁶⁰ K. MOORE, supra note 16, at 3, 60, 292.

⁶¹ Id. at 364. At that time the top of the primitive neural tube seals to form a brain, and nerve fibers begin to grow out from the brain and primitive spinal cord.

⁶² Id. at 294.

⁶³ Differentiation is defined as “specialization” or “the acquiring of character or function different from that of the original type.” STEDMAN's MEDICAL DICTIONARY, supra note 51, at 393.

⁶⁴ K. MOORE, supra note 16, at 61.

⁶⁵ Id.

⁶⁶ Id. at 292; Hellegers, supra note 53, at 7.

⁶⁷ K. MOORE, supra note 16, at 3.

⁶⁸ Id. at 321-22.

⁶⁹ M. FURUHJELM, supra note 59, at 52-56; K. MOORE, supra note 16, at 72, 352.

⁷⁰ K. MOORE, supra note 16, at 3.

⁷¹ Id.

⁷² Hellegers, supra note 53, at 7, 8.

⁷³ S. KITZINGER, THE COMPLETE BOOK OF PREGNANCY AND CHILDBIRTH 323 (1985).

⁷⁴ Id. at 4.

⁷⁵ Id.

⁷⁶ Hellegers, supra note 53, at 7, 8.

⁷⁷ K. MOORE, supra note 16, at 4.

⁷⁸ M. FURUHJELM, supra note 59, at 71. See supra note 58.

⁷⁹ K. MOORE, supra note 16, at 65.

⁸⁰ Id.

⁸¹ Id. at 88.

⁸² Id. at 89.

⁸³ Id. at 4.

⁸⁴ Id.

⁸⁵ S. KITZINGER, supra note 73, at 324; Hellegers, supra note 53, at 7, 8.

⁸⁶ Id. An electrocardiogram is a “graphic record of the heart's action currents obtained with the electrocardiograph.” STEDMAN's MEDICAL DICTIONARY, supra note 51, at 446.

⁸⁷ S. KITZINGER, supra note 73, at 325.

⁸⁸ K. MOORE, supra note 16, at 91.

⁸⁹ Id. at 91.

⁹⁰ “Quickening” is defined as the fetal movement felt by the mother. The mean interval between a patient's first detection of fetal movement and delivery is 147 days with a standard deviation of 15 days. K. MOORE, supra note 16, at 91. See supra text accompanying note 51.

⁹¹ Hellegers, supra note 53, at 8.

⁹² K. MOORE, supra note 16, at 212.

⁹³ Id. at 94.

⁹⁴ Id. at 91.

⁹⁵ Hellegers, supra note 53, at 8.

⁹⁶ S. KITZINGER, supra note 73, at 328.

⁹⁷ At this point the fetus is “breathing” amniotic fluid. The fetal lungs are not exposed to air and do not breathe air until after birth.

⁹⁸ S. KITZINGER, supra note 73, at 327.

⁹⁹ Id. at 328.

¹⁰⁰ Id.

¹⁰¹ K. MOORE, supra note 16, at 94.

¹⁰² Id.

¹⁰³ S. KITZINGER, supra note 73, at 329.

¹⁰⁴ Id. at 330.

¹⁰⁵ K. MOORE, supra note 16, at 94.

¹⁰⁶ Id.

¹⁰⁷ Id. at 94. See also Roe v. Wade, 410 U.S. 113, 125 (1973).

¹⁰⁸ K. MOORE, supra note 16, at 94.

¹⁰⁹ Id. at 94, 98.

¹¹⁰ B. BRODY, supra note 9, at 187.

¹¹¹ Showalter, supra note 2, at 112; Note, Missouri's Definition of Death: Legal Utility, 4 PUB. L.F. 179, 180 (1984). Until 1979, Black's Law Dictionary denned death according to the heartlung definition. The 1979 edition incorporated the Harvard Criteria into the definition. BLACK's LAW DICTIONARY 360 (5th ed. 1979).

¹¹² Showalter, supra note 2, at 116.

¹¹³ Id.

¹¹⁴ The Missouri Supreme Court applied the heart-lung standard in Schmitt v. Pierce, 344 S.W.2d 120 (Mo. 1961) (en banc), where it determined survivorship in a fatal car crash based on evidence of post-accident respiration in one of the spouses. See Note, supra note 111, at 185.

¹¹⁵ Note, supra note 11, at 112. Difficulties arose in homicide, transplantation, probate and tax law, as well as in other areas.

¹¹⁶ Showalter, supra note 2, at 117.

¹¹⁷ N o t e , supra note 111, at 180; Robinson, , Determination of Death Legislation, 27 CATH. LAW. 246, 248 (1982)Google Scholar; Note, Lovato v. District Court: The Dilemma of Defining Death, 58 DENVER L.J. 627 (1981) [hereinafter Note, The Dilemma of Defining Death]; Note, Medical-Legal Agreement on Brain Death: An Assessment of the Uniform Determination of Death Act, 8 J. CONTEMP. L. 97, 104 (1982) [hereinafter Note, Medical-Legal Agreement on Brain Death].

¹¹⁸ E.g., Gray v. Sawyer, 247 S.W.2d 496 (Ky. 1952) (In a fatal car crash, the wife, although decapitated, was deemed to have survived the husband since evidence of blood spurting from her body, even after decapitation, was evidence of a continued heartbeat.).

¹¹⁹ Note, supra note 111, at 181.

¹²⁰ Pallis, , Brain Stem Death — The Evolution of a Concept, 55 MEDICO-LEGAL J. 84, 95 (1987)Google Scholar (definition of death is: irreversible loss of capacity to be conscious; the loss of the upper part of the brain stem, combined with irreversible loss of capacity to breathe and hence maintain spontaneous heartbeat; and the loss of the lower part of the brain stem).

¹²¹ “Coma” is defined as “a state of profound unconsciousness from which one cannot be roused.” STEDMAN's MEDICAL DICTIONARY, supra note 51, at 302.

¹²² Pallis, supra note 120, at 95. Coma depassé patients were in very deep comas and had suffered secondary damage to the brain stem, with loss of brain stem reflexes, and their spinal cords had ceased to function. The patients also lost the ability to respond to their external environment and to control their body temperature.

¹²³ Id. at 97; Ormond, Brain Death and the Law, 7 POL'Y L. REV. 13 (1982).

¹²⁴ Pallis, supra note 120, at 97-98.

¹²⁵ Id.

¹²⁶ Note, The Dilemma of Defining Death, supra note 117, at 627; Note, supra note 111, at 180.

¹²⁷ Pallis, supra note 120, at 96; A Definition of Irreversible Coma, supra note 13.

¹²⁸ A Definition of Irreversible Coma, supra note 13, at 337-38. An electroencephalogram is the “record, obtained by means of the electroencephalograph, of the brain potentials derived from scalp electrodes.” STEDMAN's MEDICAL DICTIONARY, supra note 51, at 447.

¹²⁹ Pallis, supra note 120, at 96.

¹³⁰ Id. at 96; Note, supra note 111, at 183. Specifically, the Minnesota Criteria added to the Harvard Criteria the requirement that all underlying pathology be considered irreparable, which is an increasingly important precondition to the clinical diagnosis of an irreversibly nonfunctioning brain stem. Additionally, it reduced the 24-hour period for neurological confirmation of no spontaneous movement to 12 hours.

¹³¹ Note, supra note 111, at 183. Specifically, the Pittsburgh Criteria “refined the Harvard test for absence of spontaneous respiration by including measurement of blood gases,” and added to the Harvard Criteria “the use of heart rate response to intravenous administration of atropine sulfate.” Id.

¹³² Note, Medical-Legal Agreement on Brain Death, supra note 117, at 100; Note, supra note 111, at 183. See Guidelines for the Determination of Death: Report of the Medical Consultants on the Diagnosis of Death to the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 246 J. A.M.A. 2184, 2184-86 (1981) [hereinafter Guidelines for the Determination of Death].

¹³³ United States Trust Co. v. Pyke, 199 Kan. 1, 4, 427 P.2d 67, 71 (1967).

¹³⁴ Tuckers Adm'r v. Lower, No. 2831 (L. and Eq. Ct., Richmond, Va. May 25, 1972). See Note, Medical-Legal Agreement on Brain Death, supra note 117, at 108.

See State v. Shaffer, 223 Kan. 244, 574 P.2d 205 (1977). This case involved an unsuccessful constitutional attack on the Kansas brain death statute. There, a convicted first-degree murderer claimed that his conviction was invalid because the alternative definitions of death in the statute rendered the statute unconstitutionally vague. The Kansas Supreme Court held that the alternative test is in keeping with advanced medical technology, and that there is no constitutional requirement that a single standard be used. Id. at 249, 574 P.2d at 209.

Similarly, in People v. Vanderford, 77 Mich. App. 370, 258 N.W.2d 502 (1977), an attack on the Michigan brain death statute based on the Capron-Kass model proved unsuccessful when the Michigan Court of Appeals held that the appellant's conviction would stand even if the statute was found to be unconstitutional. The appellant, convicted of involuntary manslaughter, claimed that improper removal of the victim from a respirator was the actual cause of death. The Michigan court held that intervening medical error was not a defense. Vanderford, 77 Mich. App. at 373, 258 N.W.2d at 503. See infra note 139 (contains text of the Capron- Kass model).

¹³⁵ See, e.g., In re Children's Hosp., No. 49143 (D. Minn. July 11, 1978); State v. Fierro, 124 Ariz. 182, 603 P.2d 74 (1979) (en banc); Lovato v. District Ct., 198 Colo. 419, 601 P.2d 1072 (1979) (en banc); Commonwealth v. Golston, 373 Mass. 249, 366 N.E.2d 744 (1977); In re Bowman, 94 Wash. 2d 407, 617 P.2d 731 (1980) (en banc).

¹³⁶ Note, The Dilemma of Defining Death, supra note 117, at 628; Note, Medical-Legal Agreement on Brain Death, supra note 117, at 104.

¹³⁷ Note, Medical-Legal Agreement on Brain Death, supra note 117, at 101. See, e.g., MD. ANN. CODE art. 43, § 54F (1980); N.M. STAT. ANN. § 12-2-4 (1978).

¹³⁸ Showalter, supra note 2, at 119; Note, The Dilemma of Defining Death, supra note 117, at 633.

¹³⁹ Capron, & Kass, , A Statutory Definition of the Standards for Determining Human Death: An Appraisal and a Proposal, 121 U. PA. L. REV. 87 (1972)Google Scholar. The Capron-Kass proposal states:

Id. at 111.

¹⁴⁰ Note, Medical-Legal Agreement on Brain Death, supra note 117, at 102. See, e.g., ALASKA STAT. § 09.65.120 (1983); IOWA CODE ANN. § 702.8 (West 1979 & Supp. 1990).

¹⁴¹ Robinson, supra note 117, at 247. The American Bar Association's Model Definition of Death Act proposes that, for all legal purposes, a human body with irreversible cessation of total brain function, according to usual and customary standards of medical practice, should be considered dead. AMERICAN BAR ASSOCIATION, MODEL DEFINITION OF DEATH ACT (1975) (on file with American Journal of Law & Medicine).

¹⁴² Note, Medical-Legal Agreement on Brain Death, supra note 117, at 103. See, e.g., CAL. HEALTH & SAFETY CODE § 7180 (West Supp. 1990); IDAHO CODE § 54-1819 (1988 & Supp. 1990).

¹⁴³ UNIF. BRAIN DEATH ACT, § 1, 12 U.L.A. 16 (Supp. 1990) (superceded in 1980 by UNIF. DETERMINATION OF DEATH ACT, § 1, 12 U.L.A. 209 (Supp. 1990)). 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. Robinson, supra note 117, at 247.

¹⁴⁴ NEV. REV. STAT. § 451.007 (1979).

¹⁴⁵ Note, Medical-Legal Agreement on Brain Death, supra note 117, at 103. See, e.g., ALA. CODE §§ 22-31-1 to -4 (Supp. 1990); W. VA. CODE §§ 16-10-1 to -3 (1985 & Supp. 1990); Wvo. STAT. § 35-19-101 (1990). States judicially adopting the Uniform Death Act include Arizona, in State v. Fierro, 124 Ariz. 182, 603 P.2d 74, (1979), and Colorado, in Lovato v. District Ct., 198 Colo. 419, 601 P.2d 1072 (1979).

¹⁴⁶ Robinson, supra note 117, at 247. As approved in 1978, the American Medical Association's Model Definition of Death Statute provided that a physician, in the exercise of his professional judgment, may declare an individual dead in accordance with accepted medical standards. Such a declaration may be based solely on an irreversible cessation of brain function. The model statute was amended in 1979 to provide that an individual who has sustained irreversible cessation of circulatory and respiratory functions or irreversible cessation of functioning of the entire brain is to be considered dead. It also provided that the determination of death by a physician is to be made only in accordance with accepted medical standards. AMERICAN MED. ASS'N, MODEL DEFINITION OF DEATH STATUTE (on file with American Journal of Law & Medicine).

¹⁴⁷ Guidelines for the Determination of Death, supra note 132, at 2185. The Guidelines recognized the heart-lung criteria as accurate in some clinical situations, but recommended the use of brain death criteria in situations where life was being artificially maintained. Id.

¹⁴⁸ Robinson, supra note 117, at 248; Guidelines for the Determination of Death, supra note 132, at 2185; Note, Medical-Legal Agreement on Brain Death, supra note 117, at 104-05.

¹⁴⁹ Note, Medical-Legal Agreement on Brain Death, supra note 117, at 118-19.

¹⁵⁰ Id. at 115.

¹⁵¹ Robinson, supra note 117, at 249.

¹⁵² Swafford v. State, 421 N.E.2d 596 (Ind. 1981); In re Bowman, 94 Wash. 2d 407, 617 P.2d 731 (1980). See, e.g., Note, The Dilemma of Defining Death, supra note 117, at 628; Note, Medical-Legal Agreement on Brain Death, supra note 117, at 97 n.3.

¹⁵³ Miss. CODE ANN. §§ 41-36-1, -3 (1981).

¹⁵⁴ Robinson, supra note 117, at 248; Note, Medical-Legal Agreement on Brain Death, supra note 117, at 104-05. Both of these sources quote UNIF. DETERMINATION OF DEATH ACT, § 1, 12 U.L.A. 209 (1982).

¹⁵⁵ Robinson, supra note 117, at 248; Note, Medical-Legal Agreement on Brain Death, supra note 117, at 104-05.

¹⁵⁶ Note, The Dilemma of Defining Death, supra note 117, at 634.

¹⁵⁷ Id. at 633.

¹⁵⁸ B. BRODY, supra note 9, at 187.

¹⁵⁹ Id.

¹⁶⁰ Id.

¹⁶¹ See supra text accompanying note 125; see also Ormond, supra note 123, at 13; Note, Medical-Legal Agreement on Brain Death, supra note 117, at 99.

¹⁶² See supra text accompanying note 125.

¹⁶³ B., BRODY, The Essence of Humanity, in ABORTION AND THE SANCTITY OF HUMAN LIFE: A PHILOSOPHICAL VIEW 100, 108 (1975)Google Scholar [hereinafter The Essence of Humanity]. But see Makeshe, New Attention Focused on Infant Organ Donors, N.Y. Times, Dec. 14, 1987, at A18, col. 1 (discussing the use of anencephalic infants as organ donors). For a definition of anencephalics, see infra note 168 and accompanying text.

¹⁶⁴ See supra notes 69-72 and accompanying text.

¹⁶⁵ The Essence of Humanity, supra note 163, at 108.

¹⁶⁶ Id. at 109. See also B. BRODY, supra note 9, at 188.

¹⁶⁷ B. BRODY, supra note 9, at 187-88.

¹⁶⁸ Anencephalics are human organisms with no brains. They suffer from “congenital defective development of the brain, with absence of the bones of the cranial vault, the cerebral and cerebellar hemispheres, a rudimentary brain stem, and traces of basal ganglia.” STEDMAN's MEDICAL DICTIONARY, supra note 51, at 71. They are, therefore, never legally alive, despite delivery through the birth process.

¹⁶⁹ Makeshe, supra note 163. This article addresses the case of a couple who, after learning that their unborn child was anencephalic, arranged with Loma Linda Medical Center to maintain the baby on life support equipment after birth so that the organs could be donated.

¹⁷⁰ The Essence of Humanity, supra note 163, at 111.

¹⁷¹ See supra note 61 and accompanying text (presenting fetal development timetable).

¹⁷² B. BRODY, supra note 9, at 188. See supra text accompanying note 64.

¹⁷³ See supra notes 86-91 and accompanying text.

¹⁷⁴ See supra note 67 and accompanying text.

¹⁷⁵ See supra notes 97-102 and accompanying text.

¹⁷⁶ B. BRODY, supra note 9, at 188. Again, it should be noted that neither of these comparisons includes the concept of potential life that is the focus of moral and ethical debate. That concept adds another complex layer to the controversy and is left to others to address. See id. at 181.

¹⁷⁷ Id.

¹⁷⁸ Kolata, supra note 54.

¹⁷⁹ Mo. ANN. STAT. § 194.005 (Vernon 1983 & Supp. 1990).

¹⁸⁰ Id. See infra note 201 for the text of section 194.005. Prior to the enactment of section 194.005, Missouri courts applied the heart-lung definition of death. See, e.g., Schmitt v. Pierce, 344 S.W.2d 120 (Mo. 1961) (en banc).

¹⁸¹ Note, supra note 111, at 193. See supra note 139 for text of the Capron-Kass model.

¹⁸² Note, supra note 111, at 194-98; Note, The Dilemma of Defining Death, supra note 117, at 635. (The statute defining death should be flexible enough to keep pace with medical and technological advances, but certain enough to protect the interests of those involved.).

¹⁸³ See infra note 201 for the text of Mo. ANN. STAT. § 194.005 (Vernon 1983 & Supp. 1990).

¹⁸⁴ Note, supra note 111, at 196. As of the writing of this Note, no Missouri court has adjudicated the validity of the brain death theory as the definition of death. Note, Medical- Legal Agreement on Brain Death, supra note 117, at 109, 193. Other states have adjudicated the validity of the brain death theory of death. See, e.g., In re Bowman, 94 Wash. 2d 407, 617 P.2d 737 (1980); State v. Shaffer, 223 Kan. 244, 574 P.2d 205 (1977); People v. Vanderford, 77 Mich. App. 370, 258 N.W.2d 502 (1977); New York City Health and Hosp. Corp. v. Sulsona, 81 Misc. 2d 1002, 367 N.Y.S.2d 686 (1975).

¹⁸⁵ Webster v. Reproductive Health Servs., 109 S. Ct. 3040, 3047 n.l (1989); Danforth v. Rodgers, 414 U.S. 1035 (1973).

¹⁸⁶ MISSOURI HOUSE COMM., SUBSTITUTE FOR HOUSE BILL NO. 1211 (1974), cited in Webster, 109 S. Ct. at 3047 n. l.

¹⁸⁷ MISSOURI HOUSE COMM., SUBSTITUTE FOR HOUSE BILL NO. 1211.

¹⁸⁸ Planned Parenthood Ass'n v. Danforth, 428 U.S. 52, 63-65 (1976); Webster, 109 S. Ct. at 3047 n. l.

¹⁸⁹ Mo. ANN. STAT. §§ 188.010-.085 (Vernon 1979), cited in Webster, 109 S. Ct. at 3047 n. l.

¹⁹⁰ Mo. ANN. STAT. § 1.205-1(1), (2) (Vernon 1983 & Supp. 1990), cited in Webster, 109 S. Ct. at 3047.

¹⁹¹ Mo. ANN. STAT. § 1.205-1(1) (Vernon 1983 & Supp. 1990).

¹⁹² Id. at §§ 1.205-1(1), -3.

¹⁹³ Id. at § 1.205. The statute provides in full:

1. 1.

   1. The general assembly of this state finds that:

1. (1)

   (1) The life of each human being begins at conception;

2. (2)

   (2) Unborn children have protectable interests in life, health, and well-being;

3. (3)

   (3) The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child.

4. 2.

   2. Effective January 1, 1988, the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state, subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this state.

5. 3.

   3. As used in this section, the term “unborn children” or “unborn child” shall include all unborn child or children or the offspring of human beings from the moment of conception until birth at every stage of biological development.

6. 4.

   4. Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care.

See Showalter, supra note 2, at 114 (the Roman Catholic Church considers life sacred at the moment of conception).

¹⁹⁴ Webster, 109 S. Ct. at 3046-47; Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476 (1983); Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 444 (1983); Planned Parenthood v. Danforth, 428 U.S. 52, 52 (1976).

¹⁹⁵ Mo. ANN. STAT. § 1.205-1(1), (2) (Vernon 1983 & Supp. 1990).

¹⁹⁶ Webster, 109 S. Ct. at 3050.

¹⁹⁷ Id.

¹⁹⁸ Id.

¹⁹⁹ Mo. ANN. STAT. § 1.205-2 (Vernon 1983 & Supp. 1990) (emphasis added).

²⁰⁰ Webster, 109 S. Ct. at 3055.

²⁰¹ Mo. ANN. STAT. § 194.005 (Vernon 1983 & Supp. 1990). The statute provides in full: For all legal purposes, the occurrence of human death shall be determined in accordance with the usual and customary standards of medical practice, provided that death shall not be determined to have occurred unless the following minimal conditions have been met: (1) When respiration and circulation are not artificially maintained, there is an irreversible cessation of spontaneous respiration and circulation; or (2) When respiration and circulation are artificially maintained, and there is a total and irreversible cessation of all brain function, including the brain stem and that such determination is made by a licensed physician.

²⁰² See Roe v. Wade, 410 U.S. 113, 159-62 (1973); see also Webster, 109 S. Ct. at 3049; Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 444 (1983).

²⁰³ Mo. ANN. STAT. § 1.205-2 (Vernon 1983 & Supp. 1990). See supra note 193 for the full text of section 1.205.

²⁰⁴ Pallis, supra note 120, at 104. (“[I]t has been said that in the United States today [a person] can be dead in one State and not in the State next door, and that the surest road to resurrection is crossing a State boundary.“).

²⁰⁵ Murphy, A New Form of Medical Malpractice?: Missouri's “Living Will” Statute, J. Mo. B., Jan.-Feb., 1986, at 11, 14.

²⁰⁶ A.B.A. Group Opposes Curbs on Abortion Rights, N.Y. Times, Feb. 14, 1990, at A23, col. 1.

²⁰⁷ Cruzan v. Director, Missouri Dep't of Pub. Health, 100 S. Ct. 2841 (1990).