1 In the Matter of Quinlan, 137 N.J. Super. 227, 348 A.2d 816 (1975); 70 N.J. 10, 355 A.2d 647 (1976). The Superior Court’s decision was appealed to the New Jersey Supreme Court, which reversed the Superior Court. Id. The appeals court decided that Karen Quinlan’s father, as her guardian acting on her behalf, could, under the “peculiar circumstances” of the case, assert her right to privacy by withdrawing her mechanical respirator—a step which Karen could have requested had she been able to express herself—even if such withdrawal would accelerate her death. The peculiar circumstances referred to by the court were a vegetative condition “with no reasonable possibility of returning to any semblance of cognitive life,” and Karen’s inability, due to her condition, to express her wishes concerning her treatment. It should be noted here that the court did not consider Karen dead under the Harvard Criteria or any other criteria.

2 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 (1968)CrossRefGoogle Scholar [hereinafter cited as the “Harvard Report” or the “Report”]. For the operative provisions of the Report, see note 31 infra.

3 Id. at 337. Text is quoted in note 34 infra.

4 Id. at 337-339. Text is quoted in notes 31 and 35 infra.

5 An informal survey of American physicians indicates that the Harvard Criteria are widely known and have been widely used to declare death on a significant number of occasions.

The Report of the Special Committee on Organ Transplantation, Brit. Med. J. (March 21, 1970) at 750, indicates that the Harvard Criteria are suitable for use in England.

It also appears that the Harvard Criteria may soon be evaluated judicially as criteria for diagnosing death. In a case in Boston, Massachusetts, Commonwealth v. Golston, Crim. Nos. 945-32, 945-33, 945-34 (Super. Ct. Mass., filed Oct. 17, 1975), 964-46 (filed Dec. 11, 1975), the defendant stood trial for the murder of Ronald Salem of Medford. The state introduced evidence to the effect that the defendant had clubbed the deceased on the head, thereby causing his death. The defense attempted to prove that the defendant had not clubbed the deceased and also that the deceased had not been killed by his initial injuries but by the act of the physicians who took him off his artificial respirator a week after his admission in a comatose state. The state argued that the deceased was already dead according to the Harvard Criteria when removed from the respirator, and introduced expert testimony that the Harvard Criteria are a valid diagnosis of death and are widely accepted by physicians. The defense argued that the Harvard Criteria are not valid for declaring death. The defendant was found guilty of murder. The defense has indicated that it will appeal, with the legal status of the Harvard Criteria among the issues. See K. Longcope, Murder Case Involving Respirator May Settle Question of When Death Occurs, Boston Globe, May 12, 1976, at 8, cob 1.

6 See notes 34 and 35 infra.

7 A French EEG specialist has stated that “the Harvard requirements have to be rectified.” G. Arfel, Brain Death, in 24 Handbook Of Clinical Neurology 765 (P.J. Vinken, M.D., and G. W. Bruyn, M.D., eds., Amsterdam, 1976) [hereinafter generally cited as HANDBOOK]. (HANDBOOK, written in English, is being distributed by the American Elsevier Publishing Company of New York City. See note 9 infra.) The Danish neurosurgeon P. B. Jørgensen, M.D., and others “subscribe to the Harvard Criteria with reservations.” Jørgensen, P. B., et al., Brain Death Pathogenesis and Diagnosis, 49 Acta Neurol. Scandinav. 305 (1973)Google Scholar. The Belgian and German medical authors cited in Parts II through VI of this Article implicitly regard the Harvard Criteria as unreliable for diagnosing death in comatose patients receiving resuscitation treatment. Some legal authors are quite explicit. See Skegg, P. D. G., Irreversibly Comatose Individuals: Alive or Dead?, 33 Camb. L.J. 130 (1974)CrossRefGoogle ScholarPubMed; and G.Geilen, Rechtsfragen der Todeszeitbestimmung, in Die Bestimmung Des Todeszeitpunktes (W. Krosl and E. Scherzer, eds., Vienna, 1973) [hereinafter cited as Die Bestimmung], at 287 and 290-293. Die Bestimmung is the report of a congress held in Vienna in 1972 on “The Moment of Death.” The report contains thirty medical, four legal, and three theological papers, and two discussions, nearly all of which should be of interest to lawyers. The legal authors writing in this important report are: Prof. P. Bockelmann (Dr. Jur., Dr. Med. h.c., Criminology, Munich, West Germany, at 277-283 and 340-342); Prof. G. Geilen (Dr. Jur., Criminal Law, Ruhr-University, Bochum, West Germany, at 285-298 and 351-352); Prof. R. Grassberger (Dr. Jur., Criminology, Vienna, Austria, at 295-298, 348, and 360); and Prof. C. Roxin (Dr. Jur., Criminal Law, Munich, West Germany, at 299-301).

8 In the Matter of Quinlan, 137 N.J. Super. 227, 348 A.2d 816 (1975); 70 N.J. 10, 355 A.2d 647 (1976). For a summary of the decision, see note 1 supra.

9 H. A. H. van Till, Legal Aspects of the Definition and Diagnosis of Death, 24 Handbook Of Clinical Neurology 787-828 (P. J. Vinken, M.D., and G. W. Bruyn, iVl.D., eds., Amsterdam, 1976). HANDBOOK, written in English, is available from the American Elsevier Publishing Company, Inc., 52 Vanderbilt Avenue, New York, N.Y. 10017, and presumably from libraries at the major American medical schools and centers.

10 See discussion at Part IV, Sections D and F of this Article.

11 See Dorland, Illustrated Medical Dictionary (25th ed. 1974).

12 For those readers who are interested in investigating Anglo-American discussions on the definition of death, on criteria for establishing that death has occurred, and on other death-related issues, a list of materials appears following note 68, p. 33 infra.

13 See Skegg, supra note 7.

14 See Editorial, Death of a Human Being, The Lancet, 1971, Vol. II, 590-591.

15 See C. Käufer, et al., Richtlinien zur Feststellung des Hirntodes mit EEG und Angiographie, 3 Ius Medicum 183 (in print for 1976); see E. Kotz, Bewusststeinstörungen in der Neurologie, 30 PRAXIS 1081 (1970).

16 See P. Bockeimann, Rechtsfragen beim Hirntod, at 281; G. Geilen, Rechtsfragen der Todeszeitbestimmung, at 290; and K. Hormann, Moraltheologische überlegungen zum Todeszeitpunkt, at 331; all three in DIE BESTIMMUNG, supra note 7.

17 See van Till, supra note 9; see Bockelmann, supra note 16; see Geilen, supra note 16; see P. Jørgensen, supra note 7; see E. Bücheier, et al., Karotis und Vertebralis Angiographie beim Himtod, 13 Acta Radiol. Ser. (Diag.) 301, 302, 309 (1973); C. Käufer, et al., Himtod und Organtransplantation, in Die Bestimmung, supra note 7, at 77; see G. A. Neuhaus, Die Bestimmung des Todeszeitpunktes aus Kardiologischer Sicht, in Die Bestimmung, supra note 7, at 60; see H. Penin, et al., Kriterien des Zerebralen Todes aus Neurologischer Sicht, in Die Bestimmung, supra note 7, at 19-26; see H. A. H. van Till, Medisch-juridische aspecten van het einde van het menselijk leven, Dissertation Leiden Law Faculty 1970 (Kluwer, Deventer, Netherlands, 1970), summarized in English in H. A. H. van Till, Medicolegal Aspects of the End of Human Life, 24 Excerpta Medica Neurol. Neurosurg. 991-992, no. 5637 (1971); see California Health and Safety Codes, nos. 7180-7181 (1974).

18 From this point on in this Article, the word “person” is used in its psychological meaning only: a human mind-body entity. The body need not be complete to constitute a person; a human trunk with arms and legs missing, but with a head and a functioning brain, is a person in the psychological sense, a “someone” with his own thoughts, joys, and frustrations. Even an isolated human head with a functioning brain in it, and even an isolated but functioning human brain, would be “a person in the psychological sense” because psychic activity is located exclusively in the brain. A someone, not a something. Whether or not society is prepared to give even an isolated functioning brain or head legal rights, thereby recognizing it as a person in the legal sense (i.e., a human entity having legal rights) remains to be seen, but the author finds no ethically acceptable reason for refusing to do so.

This reasoning has consequences for the problems concerning abortion and biomedical research. As soon as the human embryo, inside the womb or in a “test tube,” has a functioning brain, it should be recognized as a person in the legal sense, having constitutional rights. If this were the case, fetal experiments of the type mentioned in note 26 infra definitely would be criminal. The author’s conclusion from studying recent medical literature is that in the human embryo neuronal brain function is impossible until the embryo is eight weeks old (gestational age) because no synapses are found until that time. See M. E. Molli ver, et al., The Development of Synapses in Cerebral Cortex of the Human Fetus, 50 Brain Research, 403-407 (1973); see W. F. Windle, Development of Neural Elements in Human Embryos of Four to Seven Weeks Gestation, 5 EXP. NEUROL. SUPPL. 44-83 (1970). A viable fetus obviously has a well-developed brain function, otherwise the fetus would not be viable outside the mother.

19 See Dorland, Illustrated Medical Dictionary (21st ed. 1948; 24tn ed. 1965; and—somewhat ambiguously—25th ed. 1974).

20 See Korein, J., Cerebral, Brain, and Systemic Death in Current Concepts of Cerebrovascular Disease, 8 J. Amer. Heart Assoc, no. 3 at 9-14 (1973)Google Scholar.

21 See International Federation of Societies for EEG and Clinical Neurophysiology (IFSECII), Report of the Committee on Cerebral Function, 37 EEG AND CLIN. NEUROPHYSIOLOGY 530 (1973); see also Council for International Organization of Medical Sciences (Cioms), Sur la g^reff^e du coeur, 76 Presse Medicale 1390 (1968); and Dorland, Illustrated Medical Dictionary (25th ed. 1974), at 2992 on “cerebrum.”

22 See Bockelmann, supra note 16, at 283; Roxin, Zur rechtlichen Problematik des Todeszeitpunktes, in Die Bestimmung, supra note 7, at 299.

23 See C. Käufer, supra note 17, at 77.

24 See Jørgensen, supra note 7. S. Kubicki and a group of other neurological specialists discussed this rather disconcerting phenomenon (spinal reflex) during a congress in Vienna (in 1972) on “The Moment of Death.” The congress’s report, Die Bestimmung,supra note 7, is cited frequently in this Article. The neurological discussion about spinal reflexes (in Die Bestimmung, at 240-244) is fascinating to read. It shows that the body of a deceased (that is, one whose brain function has ceased totally and forever) may still move and react to stimuli.

The author believes that legally an important conclusion can be drawn from the neurological discussion. Once brain death (as defined in Part II, Section B of this Article) is accepted as identical with the death of the person, the presence of reactions of the trunk, arms, and legs to painful stimuli, regarding a patient under resuscitation treatment, does not prove that the person still is alive. Neither does the absence of such reactions prove that the person is dead. The same is true for a beating heart and functioning kidneys under identical circumstances.

25 See Summers, R. W., et al., Acute Hepatic Coma Treated by Cross Circulation with Irreversibly Comatose Donor, 214 J.A.M.A. 2297-2301 (1970)CrossRefGoogle Scholar.

26 See White, , et al., Primate Cephalic Transplantation: Neurogenic Separation, Vascular Association, 3 Transplant. Proc. 602-604 (1971)Google Scholar. In this experiment the heads of six rhesus monkeys were separated from their bodies, while a circulation of oxygenated blood was artificially maintained within each head. These heads were called “cephalic preparations.” Each head was then “transplanted” onto another monkey-body. Quoting the report: “While no preparation has been maintained beyond 24 hours, their neurological, behavioral, and electroencephalographic function during this period have been graded as excellent.” In other words, these disembodied monkey-heads were alive in the normal sense. Quoting again: “These preparations were capable of vocalizing, accepting and chewing food, tracking with their eyes, and biting if orally stimulated.”

There is no reason why similar experiments would be impossible with heads of persons declared dead according to the Harvard Criteria; since those criteria leave a margin of error (see Part IV infra), some brain function still could exist within the head. Similar experiments have already been performed on eight living “cephalic preparations” of aborted human fetuses 12-17 weeks old (gestational age) to investigate human metabolism. Citation withheld.

27 Harvard Report, supra note 2, at 338-339.

28 Id. at 337.

29 See note 5 supra.

30 See Editorial, Bram Damage and Brain Death, The Lancet, 1974, Vol. II, 341-342. Bui see H. R. Richter, M.D., in Die Bestimmung, supra note 7, at 353.

31 The operative provisions of the Harvard Report, supra note 2, are as follows (at 337-338):

32 Harvard Report, supra note 2, at 337. Text is quoted in note 34 infra.

33 This contradiction in the Harvard Report has been pointed out elsewhere. See Skegg, supra note 7, at 136-137.

34 The Harvard Report, supra note 2 at 337 reads:

Our primary purpose is to define irreversible coma as a new criterion for death. There are two reasons why there is need for a definition: (1) Improvements in resuscitative and supportive measures have led to increased efforts to save those who are desperately injured. Sometimes these efforts have only partial success so that the result is an individual whose heart continues to beat but whose brain is irreversibly damaged. The burden is great on patients who suffer permanent loss of intellect, on their families, on the hospitals, and on those in need of hospital beds already occupied by these comatose patients. (2) Obsolete criteria for the defintion of death can lead to controversy in obtaining organs for transplantation.

35 The Harvard Report, supra note 2 at 339 reads:

It should be emphasized that we recommend the patient be declared dead before any effort is made to take him off a respirator, if he is then on a respirator. This declaration should not be delayed until he has been taken off the respirator and all artificially stimulated signs have ceased. The reason for this recommendation is that in our judgment it will provide a greater degree of legal protection to those involved. Otherwise, the physicians would be turning off the respirator on a person who is, under the present strict, technical application of law, still alive.

36 See World Medical Association, Declaration Of Geneva, London (1948); repeated in the International Code Of Medical Ethics, London (1949), and in The World Medical Association Code Of Ethics, Helsinki (1964). The 1949 Code also states, among other points: “A doctor owes to his patient complete loyalty and all the resources of his science.”

37 See discussion at Part IV, Section F infra.

38 See Part V infra.

39 On the subject of “apparent death,” see van Till, supra note 9, at 788 and 809, and see Giitgemann, A., et al., Der Schelntod, 95 Deutsch. Med. Wschr. 702-706 (1970)Google Scholar.

40 Harvard Report, supra note 2, at 337 and 338.

41 The EEG suggested in the Harvard Report and in most other writings about brain death is a “scalp-EEG,” which presumably is harmless, in contrast to a “depth-EEG,” which provides information about deeper brain structures but may cause serious harm to the patient and therefore is unavailable for diagnosing death.

42 See S. Kubicki, et al., Beitrag der Elektroenzephalographie zur Feststellung des Hirntodes, in Die Bestimmung, supra note 7, at 105 and 112. Kubicki at 112 and many other authors in Die Bestimmung state that a truly isoelectric EEG permits one to proceed to angiography of the brain arteries, the only way to diagnose brain death. See Part V infra for a discussion of angiography.

43 Harvard Report, supra note 2, at 337. Text quoted in notes 31 (par. 1) and 34 supra.

44 To “accept 15 minutes as correct” means that this amount of time is open to correction as medical knowledge on this point progresses. Some persons demand that for security’s sake an extra safety margin should be added to the revival time for brain neurons. Smith, et al., Cerebral Blood Flow and Brain Metabolism as Indicators of Cerebral Death, 133 Johns Hopkins Med. J. 107, 110 (1973). The mean estimate of 15 minutes already includes a 50% safety margin relative to the 10 minutes mentioned by Frowein, supra note 45. Therefore, the author believes that for purposes of this Article—which is primarily to communicate continental West European legal thinking on (1) the definition and diagnosis of death, and (2) the legal permissibility of ceasing artificial respiration before death—it is acceptable to use 15 minutes as provisionally correct and already including a sufficient safety margin. It is not the purpose of this Article to decide what laboratory results give the more reliable time limit.

One researcher states that in experiments on healthy animals, after a total and sudden cessation of oxygen supply, a revival time of 30 minutes can be obtained under certain controlled conditions. These conditions do not exist concerning human patients; therefore, in this context his report is irrelevant. See Hossmann, , et al., The Role of Cerebral Blood Flow for the Recovery of the Brain after Prolonged Ischemia, 204 Z. Neurol, at 281-299 (1973)Google Scholar.

45 See IFSECN Report, supra note 21.

46 See note 46 supra.

47 See note 46 supra.

48 See Käufer, et al., supra note 17, at 77-80; see Kubicki, et al., supra note 42, at 112; see Jacqui, et al., Les critères de la mort cerebrale, 54 Brux. Med. 385-386 (1974); see Bücheler, et al., supra note 17, at 310 (English summary); see Jørgensen, et al., supra note 7, at 355-367; see the IFSECN Report, supra note 21.

49 The IFSECN Report, supra note 21, considers a clinical diagnosis accompanied by two isoelectric scalp EEGs of 60 minutes each, with an interval of 24 hours, to be sufficient evidence of death, provided the etiology is known. The author’s opinion is that even with such knowledge this procedure cannot demonstrate reliably the existence of brain death according to the IFSECN’s definition—“an irreversible cessation of function of all cerebral structures including the cerebellum and brainstem down to spinal segment CI” (quotation from the IFSECN Report)— because the EEG reputedly does not give reliable information on the functioning of the deeper brain structures.

50 See note 46 supra.

51 See van Till, supra note 9, at 820.

52 See note 41 supra.

53 See Braunstein, , et al., A Simple Bedside Evaluation for Cerebral Blood Flow in the Study of Cerebral Death—A Prospective Study on 34 Deeply Comatose Patients, 118 Amer. J. Roentgenol. 757-767 (1973)CrossRefGoogle Scholar.

54 Personal communication from Prof. Dr. H. Penin, professor of neurology at Bonn Medical School, West Germany. See also Käufer, supra note 17, at 78-79.

55 See the IFSECN Report, supra note 21.

56 See remarks concerning the relationship between uncertainty about the definition of death and the availability of donated organs, in note 62 infra, especially the articles: How Did Samuel Moore Die? and Dearth of Donor Organs Is Traced to Doubt About Definition of Death.

57 “Apparent death” was an item in Dorland, Illustrated Medical Dictionary in the 23rd edition (1948), but not in the 24th edition (1965), where it was absorbed into the definition of death. See van Till, supra note 9, at 788-789. It reappeared in the 25th edition (1974) as a reversible state, that is, as a state in which the person seems dead but from which he will recover to a state of being obviously alive. The author, as should be clear from the arguments presented in this Article, believes that apparent death could also be irreversible, that is, the person could appear to be dead, be still alive according to the definitions presented in Part II of this Article (i.e., have some brain function left), and never recover to a state of being obviously alive. See Gutgemann, A., et al., Der Scheintod, 95 Deutsche Med. Wschr. 702-706 (1970)CrossRefGoogle Scholar; see A. Manuila, et al., Dictionnaire Francais De Medecine Et De Biologie (Paris, 1971) under “mort apparente.”

58 See MEDICAL DEFENSE UNION, ANNUAL REPORT, 1974 (London), at 96.

59 See note 44 supra.

60 The extent of the confusion is clear if one reads the medical literature about death in English, French, and German. For example, the Harvard Report, supra note 2; Special Committee on Organ Transplantation, Report, Brit. Med. J., (March 21, 1970), at 750; Brierly, , et al., Neocortical Death After Cardiac Arrest,— The Lancet 560-565 (1971)Google Scholar; Transplantation Society, Statement of the Committee on Morals and Ethics of Transplantation, 75 Ann. Intern. Med. 631-633 (1971)Google Scholar; Silverman, Problems in the Diagnosis of Brain Death, 3 lus Medicum 169-176 (R. Dierkens ed., Ghent, Belgium, 1973); Jørgensen, et al., Brain Death Pathogenesis and Diagnosis, supra note 7; Gerlach, Defining Death and the Process of Dying in Medicine, Forensic Medicine, and Jurisprudence, 3 lus Medicum 163-168 (Ghent, Belgium, 1973); International Federation of Societies for EEG and Clinical Neurophysiology (IFSECN), Report of the Committee on Cessation of Cerebral Function, supra note 21; C. Gros, La Mort du Cerveau—Les Critères Circulatoires et Biologiques, 2 Nouv. PRESSE MED. 307-309 (1973); Jacqui, et al., Les Critères de la Mort Cérébrale, supra note 50; Geilen, Rechtsfragen der Todeszeitbestimmung, in Die Bestimmung, supra note 7, at 285-293 and 351-352; Kâufer, et al., Hirntod und Organtransplantation, in DIE BESTIMMUNG, supra note 7.

The confusion has made evaluation of physicians’ actions by courts of justice, or even by medical peers, impossible, and has made legal protection of the rights of patients and physicians an illusion; it leaves a wide margin for arbitrary decisions and elastic, rather than ethical and legally acceptable, death criteria. (At present it is an absurd reality that American physicians might declare a patient dead, while, under identical circumstances, German physicians would not.) The legal and ethical uncertainty leads to distrust of physicians, and aggravates the shortage of donated organs. See Institute of Society, Ethics, and the Life Sciences, Task Force on Death and Dying, Refinements in the Criteria for the Determination of Death, 221 J.A.M.A. 48 (1972)Google Scholar at 52-53; Editorial, How Did Samuel Moore Die?, New Scientist, Nov. 1973, at 487; Editorial, Dearth of Donor Organs is Traced to Doubt About Definition of Death, Med. World News, March 22, 1974, at 14-15; Capron and Kass, , Statutory Definition of the Standards for Determining Human Death: An Appraisal and a Proposal, 121 U. Pa. L. Rev. 37 (1972)Google Scholar.

The author agrees with most of the Capron and Kass article, but disagrees with their proposal (at 111) because it is limited to loss of “spontaneous” brain functions only. When diagnosing death the question is not why there is brain function but if there is brain function. The fact that brain function exists in some cases as a result of outside assistance (such as a respirator) is as irrelevant morally and legally as the fact that someone’s heart beats because he wears a pacemaker. In neither case is the function truly “spontaneous,” and in neither case is the person dead.

This “spontaneous” versus “artificially supported” issue has been surrounded by confusion. In 1957 Pope Pius XII stated: “. . . que la vie humaine continue aussi longtemps que se fonctiones vitales—a la différence de la simple vie des organes—se manifestent spontanément ou même a l’aide de procédés artificiels.” Original French text in Acta Apostolica SEDIS XXXIX, 17, 1033, and in Ethics In Medical Progress (G.E.W. Wolstenholme and M. O’Connor eds., London). The correct English translation is found in The Prolongation of Life, 4 THE POPE SPEAKS 393-398 (1958), which is the only reference given by the Harvard Report (at 340), although it contradicts the Report. The Pope has been misquoted in the well-known article by M. M. Halley and W. F. Harvey entitled Medical vs. Legal Definitions of Death, 204 J.A.M.A. 103-105 (1968). Halley and Harvey give the following translation of the Pope’s statement: “Human life continues for as long as its vital functions, distinguished from the simple life of the organs, manifest themselves without the help of artificial processes.” [Emphasis added.) The correct translation would have been “without, or even with, the help of artificial processes,” or, alternatively, “spontaneously or even with the help of artificial processes.” The Halley and Harvey mistranslation, along with American physicans’ fear of malpractice suits, may have combined to influence the authors of the Harvard Report.

61 Physicians often need to turn off a respirator temporarily to see if the patient can be weaned to breathe on his own. This procedure is generally regarded as legally acceptable so long, as it is done for a short enough period so that it causes no harm—nor, of course, death—to the patient who cannot breathe independently. (This practice shows, incidentally, that to turn off a respirator is not in itself the same as “to cause death.”) If the patient is capable of breathing on his own, his physicians generally will attempt to wean him from the machine, as was recently done successfully in the Karen (quinlan case. Termination of artificial respiration to check on the patient’s breathing capacity need not be discussed further in this Article.

62 See Geilen (criminal law) at 288-289; Roxin (criminal law) at 300-301; Kubicki (clinical neurophysiology) at 355; and W. Ruff (theology and medicine) at 313, all in Die Bestimmung, supra note 7; see van Till, supra note 9, at 797-798; see the Committee on Medical Ethics, National Health Council of the Netherlands, Advice on Euthanasia (Staatsdrukkerij, the Hague, the Netherlands) at 15 and 25 (1973); see J. F. Rang (Professor in Health Law, Leiden university). Salus aegri suprema lex, in no. 2 and no. 3 Tijdschrift Privaatrecht at 403-404 (1974); see Foundation for Voluntary Euthanasia, De dood komt sows te laat, Tijdstroom, Lochem, the Netherlands, at 18 (1975); the Committee on Euthanasia, installed by the Royal Netherlands Medical Association, Report, in 1 Medisch Contact 7-16 (1975).

63 As stated in the Introduction to this article, the opinion of the New Jersey Supreme Court regarding Karen Quinlan, In the Matter of Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), was widely published in the Netherlands. The full text of the Court’s decision is not available to the author at the time of this writing. It will be interesting to compare the author’s arguments for lawful cessation of resuscitation treatment (see van Till, supra note 9, at 797) with those of the New Jersey Supreme Court. Many German and Dutch lawyers agree with the conclusion that resuscitation treatment may be stopped for irreversibly comatose patients, but very few explain their reasons for agreeing.

64 The issue of termination of resuscitation treatment in irreversibly comatose patients is but one aspect of euthanasia, a complex subject which is beyond the scope of this Article. The author currently is preparing a discussion of West European views on euthanasia for future publication. For a short review of current German and Dutch opinion, see van Till, supra note 9, at 797.

65 See note 64 supra.

66 See H. A. H. van Till, How Dead Can You Be?, 15 MED. SCI. & LAW 133, 135-136 (Bristol, England, May, 1975) and a correction by the author in 16 MED. SCI. 8C LAW 148 (April, 1976).

The following material may be of interest to readers who wish further to explore Anglo-American thinking on the subject of death. These materials have been categorized into six areas: (1) state statutes; (2) judicial decisions; (3) books; (4) law journal articles; (5) medical journal articles; (6) other periodical articles; and (7) The American Bar Association’s recently-published definition of death.

1. 1.

   1. Selected state statutes which attempt to define death include the following (note that several of these statutes rely heavily on the word “spontaneous” despite the confusion that surrounds this word, as explained in paragraphs two and three of note 62 supra):

   • (a) California—Anatomical Gift Act, Cal. Health & Safety § 7180, which provides as follows:

     A person shall be pronounced dead if it is determined by a physician that the person has suffered a total and irreversible cessation of brain function. There shall be independent confirmation of the death by another physician. Nothing in this chapter shall prohibit a physician from using other usual and customary procedures for determining death as the exclusive basis for pronouncing a person dead.

   • (b) Illinois—Ill. Anno. St., c. 3, § 552 (b), which provides as follows:

     Death means for the purposes of the Act, the irreversible cessation of total brain function, according to usual and customary standards of medical practice.

   • (c) Kansas—K.S.A., § 77-202 (Supp. 1974), which provides as follows:

     A person will be considered medically and legally dead if, in the opinion of the physician, based on ordinary standards of medical practice, there is the absence of spontaneous respiratory and cardiac function and because of the disease or condition which caused, directly or indirectly, these functions to cease, or because of the passage of time since these functions ceased, attempts at resuscitation are considered hopeless; and, in this event, death will have occurred at the time these functions ceased; or a person will be considered medically and legally dead if, in the opinion of a physician, based on ordinary standards of medical practice, there is the absence of spontaneous brain function; and if based on ordinary standards of medical practice, during reasonable attempts to either maintain or restore spontaneous circulatory or respiratory function in the absence of aforesaid brain function, it appears that further attempts at resuscitation or supportive maintenance will not succeed, death will have occurred at the time when these conditions first coincide. Death is to be pronounced before artificial means of supporting respiratory and circulatory function are terminated and before any vital organ is removed for purposes of transplantation. These alternative definitions of death are to be utilized for all purposes in this state, including the trials of civil and criminal cases, any laws to the contrary notwithstanding.

   • (d) Virginia—V.C., c.19, § 32-364, 3.1, which provides as follows:

     A person shall be medically and legally dead if, (a) in the opinion of a physician duly authorized to practice medicine in this State, based on the ordinary standards of medical practice, there is the absence of spontaneous respiratory and spontaneous cardiac functions and, because of the disease or condition which directly or indirectly caused these functions to cease, or because of the passage of time since these functions ceased, attempts at resuscitation would not, in the opinion of such physician, be successful in restoring spontaneous life-sustaining functions, and, in such event, death shall be deemed to have occurred at the time these functions ceased; or (b) in the opinion of a consulting physician, who shall be duly licensed and a specialist in the field of neurology, neurosurgery, or electroencephalography, when based on the ordinary standards of medical practice, there is the absence of spontaneous brain functions and spontaneous respiratory functions and, in the opinion of the attending physician and such consulting physician, based on the ordinary standards of medical practice and considering the absence of the aforesaid spontaneous brain functions and spontaneous respiratory functions and the patient’s medical record, further attempts at resuscitation or contained supportive maintenance would not be successful in restoring such spontaneous functions, and, in such event, death shall be deemed to have occurred at the time when these conditions coincide. Death, as defined in subsection (b) hereof, shall be pronounced by the attending physician and recorded in the patient’s medical record and attested by the aforesaid consulting physician. Notwithstanding any statutory or common law to the contrary, either of these alternative definitions of death may be utilized for all purposes in the Commonwealth, including the trial of civil and criminal cases.

   • (e) Michigan—M.C. L.A., c. 16, § 326.8b, which provides as follows:

     (1) A person will be considered dead if in the announced opinion of a physician, based on ordinary standards of medical practice in the community, there is the irreversible cessation of spontaneous respiratory and circulatory functions. It artificial means of support preclude a determination that these functions have ceased, a person will be considered dead if in the announced opinion of a physician, based on ordinary standards of medical practice in the community, there is the irreversible cessation of spontaneous brain functions. Death will have occurred at the time when the relevant functions ceased. (2) Death is to be pronounced before artificial means of supporting respiratory and circulatory functions are terminated. (3) The means of determining death in subsection (1) shall be used for all purposes in this State, including the trials of civil and criminal cases.

2. 2.

   2. State court decisions which attempt to define death include the following cases:

   People v. Lyons,_______ Cal. Super._______ (1974); Tucker v. Lower, No. 2831 (Ct. of

   Law and Eq. Richmond, Va., May 25, 1972), cited in 51 N.C.L. REV. 172 (1972); Evans v. Halterman, 31 Ohio App. 175, 165 N.E. 869 (1968); In Re Estate of Schmidt, 261 Cal. App.2d 262, 67 Cal. Rptr. 847 (1968); United Trust Co. v. Pyke, 199 Kan. 1, 427 P.2d 67 (1967); Douglas v. Southwestern Life Ins. Co., 374 S.W.2d 788 (Tex. Civ. App. 1964); Smith v. Smith, 229 Ark. 579, 317 S.W.2d 275 (1958); Gray v. Sawyer, 247 S.W.2d 496 (Ky. Ct. App. 1952); Thomas v. Anderson, 96 Cal. App. 2d 371, 215 P.2d 478 (1950); Sauers v. Stolz, 121 Colo. 456, 218 P.2d 741 (1950); Gugel’s Adm’r. v. Orth’s Ex’r., 314 Ky. 591, 236 S.W.2d 460 (1950); Telefilm Ink v. Superior Court, 194 P.2d 542 (Cal. Ct. App. 1948); Vaegemast v. Hess, 203 Minn. 207, 280 N.W. 641 (1938); Noller v. Aetna Life Ins. Co., 142 Kan. 35, 46 P.2d 22 (1935); In Re Stuertz Estate, 245 N.W. 412 (Neb. 1932); In Re Louck’s Estate, 117 P. 673 (Cal. 1911); Sanger v. Butler, 45 Tex. 427, 101 S.W. 459 (1907).

3. 3.

   3. Books which treat the subject of death include the following: E. Kluge, The Practice Of Death (1975); R. Russell, Freedom To Die (1975); M. Heifetz, The Right To Die (1975); D. Maguire, Death by Choice (1974); M. Mannes, Last Rights: A Case for The Good Death (1974); D. Hendin, Death as A Fact Of Life (1974); R. Trubo, an Act of Mercy: Euthanasia Today (1973); B. Schoenberg, Psychological Aspects of Terminal Care (1972); M. Schur, Freud Living And Dying (1972); A. Weisman, On Dying And Denying (1972); D. Dowd, Medical Moral And Legal Implications Of Recent Medical Advances (1971); M. Houts, Courtroom Medicine: Death (1971); A. Strauss & B. Glaser, Anguish (1970); P. Ramsey, The Patient As Person (1970); Aranson & C. Wecht, Medical-Legal Ramifications Of Human Tissue Transplantation (1969); E. Kubler- Ross, On Death And Dying (1969); Wm. Poe, The Old Person In Your Home (1969); R. Porgio, The Transplant Age 17 (1969); A. Rosenfeld, The Second Genesis (1969); The Moment Of Death : A Symposium (A. Winter ed. 1969); L Wright, Who Should Make The Decisions In The Moment Of Death (1969); A. Toynbee, Man’S Concern With Death (1968); J. Fletcher, Morals And Medicine (1960); K. Eissler, The Psychiatrist And The Dying Patient (1955); H. Jones, Legal Medicine—Pathology And Toxicology (1954); Power & Sedgewick, The New Sydenham Society’S Lexicon Of Medicine And The Allied Sciences (1882); Dorland, Illustrated Medical Dictionary (24th ed. 1965); T. Gonzales, et al., Bladiston’S New Gould Medical Dictionary (1949).

4. 4.

   4. Selected recent law journal articles which treat the subject of death include the following: Note, Uniform Anatomical Gift Act: Death Construed by Court Consonant with Medical Standard of Brain Death, 29 RUTG. L. REV. 485-498 (1976); H. A. H. van Till, How Dead Can You Be?, supra note 68; Byrn, Compulsory Life Saving Treatment for the Competent Adult, 44 FORD. L. REV. 1-36 (1975); Friloux, Death, When Does it Occur?, 27 BAILER L. REV. 10-19 (1975); Hirsch, Brain Death: MedicallLegal Fact or Fiction?, 3 N.Y.S.L.F. 16-41 (1975); Saunders, Determining the Presence of Death—A Medical Legal and Ethical Question, 6 MAN. L.J. 291-380 (1975); Note, But When Did He Die?: Tucker v. Lower and the Brain Death Concept, 12 SAN DIEGO L. REV. 424-435 (1975); Weigel, Dying Patient’s Rights—Do They Exist?, 16 S.T.L.J. 153-172 (1975)Google Scholar; Stoop, Law in Australia, Relating to the Transplantation of Organs from Cadavers, 48 aust. L.J. 21-28 (1974); Compton, , Telling the Time of Human Death by Statute: An Essential and Progressive Trend, 31 Wash. Lee L. Rev. 521-543 (1974)Google Scholar; Conway, , Medical and Legal Views of Death; Confrontation and Reconciliation, 19 st. Louis U.Lj. 172-188 (1974)Google Scholar; Note, Legislation: The Need for Effective Statutory Definition of Death, 27 Okla. L. Rev. 729-735 (1974); Skegg, Irreversibly Comatose Individuals: Alive or Dead?, 33 Camb. L.J. 130-144 (1974); Wasmuth, The Medical, Legal and Ethical Considerations of Human Organ Transplantation, 11 WM. & mary L. Rev. 636 (1974); Hillman, Towards a Legal Definition of Death, 116 SOL. J. 323 (1972); Note, Statutory Definition of the Standards for Determining Human Death, 121 U. Pa. L. Rev. 87 (1972); Note, Organ Transplant, 122 New L.J. 1078 (1972); Dukeminier, Supplying Organs for Transplantation, 68 Mich. L. Rev. 811 (1970); Gravenor, Medicine and the Law: The Legal Definition of Death, Chitty’S L. J. (1971); Kutner, Due Process of Human Transplants: A Proposal, 24 U. Miami L. REV. 782 (1970); Ford, Human Organ Transplantation: Legal Aspects, 15 CATH. L. 136 (1969); Halley & Harvey, On an Interdisciplinary Solution to the Legal-Medical Definitional Dilemma in Death, 2 Ind. Legal Forum (1969); Spector. Legal Implications of Cryonics, 18 Clev. Man. L. Rev. 341 (1969); Gurny, The New Biology and the Future of Man, 15 U.C.L.A. L. REV. 273 (1968); Halley and Harvey, Law-Medicine Comment: The Definitional Dilemma of Death, J. Kan. Bar. Assoc. (1968); Note, Hemodialysis and Kidney Transplant, 15 U.C.I.A. L. Rev. 357 (1958)Google Scholar.

5. 5.

   5. Selected medical journal articles which reter to the subject of death include the following: Crane, Decisions to Treat Critically III Patients: A Comparison of Social Versus Medical Considerations, 53 Milbank Mem. Fund Q. Health Soc’y, 1-33, (1975)Google Scholar; Jonsen, et al., Critical Issues in Newborn Intensive Care: A Conference Report and Policy Proposal, 55 Pediatrics 756-768 (1975); Griffin, Family Decision: A Crucial Factor in Terminating Life, 75 AM. J. NURS. 794-796 (1975); Black, Criteria of Brain Death: Review and Comparison, 57 Postgrad. Med. 69-74 (1975); Delmonico & Randolph, Death: A Concept in Transition, 51 Pediatrics 234-239 (1975); Fletcher, Abortion, Euthanasia, and Care of Defective Nezrborns, 291 New Eng. J. Med. 78-80 (1975); Hirsch, Brain Death, 21 Med. Trial Tech. Q. 377-405 (1975); Banowsky, Brown & Magnusson, The Medical and Legal Determination of Death—Its Effect on Cadaveric Organ Procurement, J. Legal Med. 44-48 (1974); Harp, Criteria for the Determination of Death, 40 Anesthesiology 391-397 (1974); Mills, Statutory Brain Death, 229 J.A.M.A. 1225-1226 (1974); Modell, Will to Live, 290 New Eng. J. Med. 907-908 (1974); Reed, Legal Impediments to Medical Progress, J. Legal Med. 38-39 (1974); Epstein & Benson, The Patient’s Right to Refuse, 47 Hospitals 39 (1973); Group for the Advancement of Psychiatry, The Right to Die: Decision and Decision Makers: Proceedings of a Symposium, 8 Group For The Advancement Of Psychiatry 1 (1973); Refinements in Criteria for the Determination of Death: An Appraisal, 22 J.A.M.A. 48-53 (1972); Hedgepeth, Court Order for Minor’s Surgery Reversed, 1 Hosp. Med. Staff 9 (1972); Curran, Legal and Medical Death: Kansas Takes the First Step, 284 New Eng. J. Med. 260-261 (1971); Fermaglich, Determining Cerebral Death, Annals Fam. Prac. 1 (1971); Kennedy, The Kansas Statute on Death, 284 New Eng. J. Med. 946-950 (1971); Mills, The Kansas Death Statute: Bold and Innovative, 285 New Eng. J. Med. 968-969 (1971); Mohandas & Chou, Criteria of Brain Death, J. NEUROLOGY (Aug. 1971); Taylor, A Statutory Definition of Death in Kansas, J.A.M.A. 1 (1971); Toole, The Neurologist and the Concept of Brain Death, 14 Perspective Biol. Med. 599-607 (1971); Kansas Statute of Death: An Appraisal, 285 New Eng. J. Med. 947 (1971); Silverman, Masland, & Saunders, Irreversible Coma Associated with Electrocerebral

   Silence, 20 Neurology 525-533 (1970); Silverman, Saunders, Schwab, & Masland, Cerebral Death and the Electroencephalogram, J.A.M.A. (1969); Arnold, Martin, & Zimmerman, Public Attitudes and the Diagnosis of Death, £06 J.A.M.A. 1949 (1968); Cooley, Minutes of the Capetown Meeting, 9 Med. World News 21 (1968); Moore, Medical Responsibility for the Prolongation of Life, 20 J.A.M.A. 384 (1968); Sadler, Sadler, & Stason, The Uniform Anatomical Gift Act: A Model for Reform, 206J.A.M.A. 2501 (1968); Editorial, What and When Is Death?, 204 J.A.M.A. 539 (1968); 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. 337-340 (1968); Biorck, On the Definition of Death, 14 World Med. J. 137-139 (1967); Muller, Legal Medicine and the Delimitation of Death, World Med. J.—(1967); Voigt, The Criteria of Death, 14 World Med. J. 137-319 (1967); Williamson, Life or Death—Whose Decision,—J.A.M.A. (1966); Hamlin, Life or Death by EEG,—J.A.M.A.—(1964); Woodruff, The Ethics of Organ Transplantation,—Brit. Med. J.—(1964); Thomson, The Role of Physicians in the Humane Societies of the Eighteenth Century,—Bull. Hist. Med.—(1963); Herold, Signs and Tests of Death, New Orl. Med. & Surg. J. (1899).

6. 6.

   6. Selected general periodical and newspaper articles which relate to the subject of death include the following: Barnard, Right to Die: Doctors are The Only People Qualified to Decide, 79 U.S. News & World Rpt. 53 (Nov. 3, 1975); Culliton, Intensive Care for Newborns: Are There Times to Pull the Plug?, 88 SCIENCE 133-134 (Apr. 11, 1975); Pellegrino, Right to Die: Give the Physician Too Much Power, and It Can Be Abused, 7$ U.S. News & World Rpt. 53-54 (1975); Fletcher, New Definitions of Death, 2 Prism 13 (1974); Skillman, Ethical Dilemmas in the Care of the Critically III, 2 Lancet 634-637 (1974); Rustein, The Ethical Design of Human Experiments, 98 Daedalus 523-541 (1969); White, ed., Care of Patients with Fatal Illness, 164 Annals N.Y. Acad. SCI, 1 (1969); Durdin, Physicians Adopt a Code on Death, New York Times, Aug. 19, 1968, p. —, col. —; Am.A. Sets Guide on Heart Implants, New York Times, Dec. 5, 1968, p. 1, col. 2; Defining Death,—Sci. News Mag.—(Aug. 24, 1968); Death, When Is Thy Sting?,—Newsweek—(Aug. 19, 1968); Texas Heart Transplant Raises Legal Questions, New York Times, May 13, 1968, p. —, col. —; Transplants: Hopes and Anxieties, The London Times cited in A.M.A. News, June 10, 1968, p. 4, col. 2; Back from the Dead, Newsweek (NOV. 13, 1967); What is Life? When is Death?, TIME (May 27, 1966).

7. 7.

   7. The American Bar Association (ABA) recently conducted an extensive study of the definition of death. The ABA study committee surveyed 180 lawyers and 20 professionals holding both legal and medical degrees (among them Cyril Wecht, an Associate Editor of the American fournal of Law and Medicine). The ABA’s Committee on Medicine and Law proposed a “Current Defintion of Death,” which was voted and approved by the ABA’s House of Delegates on February 24, 1975. The Definition and the Resolution of which it was a part read as follows:

For all legal purposes, a human body with irreversible cessation of brain function, according to usual and customary standards of medical practice, shall be considered dead.

American Bar Association, Report of the Committee on Medicine and Law, 11 FORUM 300, 311 (1976).

The ABA Committee made it clear that it was not offering the definition as a statute. Id. at 301. The “Prologue and Procedure’’ in the Committee’s Report emphasizes that a new definition of death is needed “to establish a point at which the donation of an organ for transplantation, may be done or the withdrawal of sustaining devices from an unconscious patient, or the initiation or termination of resuscitative measures.” Id. at 305.