The Catholic Lawyer Volume 18 Number 3 Volume 18, Summer 1972, Number 3 Article 7 The Time of Death - A Legal, Ethical and Medical Dilemma John E. Pearson Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Medical Jurisprudence Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. THE TIME OF DEATH-A LEGAL, ETHICAL AND MEDICAL DILEMMA Introduction On December 4, 1967 an amazed world learned that a South African physician, Dr. Christian Barnard, had transplanted the heart of one hopelessly injured patient into the body of another man who was dying of advanced cardiac disease.' This unprecedented operation brought the remarkable advances of medical technology over the pre- vious fifty years into sharp focus. The major medical obstacle to suc- cessful transplants had been the body's production of antibodies which reject the introduction of foreign substances into the system. 2 To fight this rejection process, medical scientists developed a substance known as antilymphocyteglobulin (ALG) .3 This substance performed excel- lently in preventing the rejection process. However, it created a new medical problem: ALG retards the production of lymphocytes which create the rejection process but lymphocytes are necessary to fight off infection in the body. This complication meant that doctors might be successful in preventing rejection of a transplanted vital organ only to 4 lose the patient to infection. By 1967, these difficulties were sufficiently overcome to permit the technical possibility of a human heart transplant. Scientists had been * This article is a student work prepared by John E. Pearson, a former member of the ST. JOHN'S LAW REVIEW and the St. Thomas More Institute for Legal Re- search. J.D., St. John's University Law School. 1 N.Y. Times, Dec. 4, 1967, at 1, col. 2. 2 Kutner, Due Process of Human Transplants: A Proposal, 24 U. MiAMI L. REv. 782, 783 (1970). 3 Id. 4 Weathersbee, Double-Edged Knife: Rejection/Infection, 93 Sci. NEWS 215 (1968). 244 18 CATHOLIC LAWYER, SUMMER 1972 experimenting with animals and had man- [t]he cessation of life; the ceasing to exist; aged to keep dogs alive for over a year after defined by physicians as a total stoppage of performing heart transplants on them., the circulation of the blood, and a cessa- tion of the animal and vital functions con- While the technical competence existed, no sequent thereon, such as respiration, pul- surgical team was willing to perform the sation, etcY operation on a human until Dr. Barnard did so in 1967. Other doctors were apparently Unfortunately, this definition has been 0 reluctant to begin the human experimenta- cited with approval by some state courts.' tion necessary to perfect this technique be- The problem with the definition as it in- cause of a fear that they would be compared volves heart transplants is that it requires to physicians of Nazi Germany who experi- the total cessation of the heart beat in order mented on concentration camp prisoners. 6 for one to be considered legally dead. This The tremendous respect shown Dr. Barnard requirement has led to some unusual court throughout the world allayed this fear by decisions." demonstrating to physicians that the public Obviously, for a heart to be transplanted favored transplant operations. The ensuing to a recipient, the donor must be dead or release of professional anxiety is evidenced the surgical team has committed homicide. by the fact that 101 transplants were at- The dilemma faced by medicine in this area tempted in the year following the first heart is that if the surgical team is forced to wait 7 transplant. until the donor is "legally dead" that is, until the heart has stopped, the operation is With heart transplants not only tech- useless. As mentioned earlier, medical ad- nically possible but also a reality after vances have made it possible for machines 1967, a long existing difference of opinion to maintain all a patient's vital organs, between the law and medicine came to the fore. This difference of professional opinion concerned the definition of death. Medical 9 BLACK'S LAW DICTIONARY 488 (4th ed. 1968). technology had made it possible for a patient 10 See, e.g., Smith v. Smith, 229 Ark. 579, 317 to have all his life-supporting organs, ex- S.W.2d 275 (1958); Thomas v. Anderson, 96 machines. 8 Cal. App. 2d 371, 215 P.2d 478 (1950). cept the brain, maintained by 11 In Gray v. Sawyer, 247 S.W.2d 496 (Ky. Ct. Black's Law Dictionary defines death as: App. 1952), a husband and wife were both struck by a train at a railroad crossing. The husband's body was completely mutilated and the wife was decapitated. Immediately after the 5 Smith, Someone Playing God, THE NATION, accident, a witness came upon the headless body Dec. 30, 1968, at 719. of the wife. Blood was spurting from the neck. 6 id. An action was brought by the survivors of the 7Whatever Happened to ... Heart Transplants, wife who contended that she had survived the U.S. NEWS & WORLD RPT, Sept. 14, 1970, at husband under the Simultaneous Death Statute 84. of Kentucky. The court held that the wife had 8 See Bi6rck, When Is Death?, 1968 Wis. L. indeed survived the "husband for a fleeting mo- REV. 484, 493. These machines include "artificial ment" as was "evidenced by the gushing of blood" respiration, instruments for defibrillation and from the neck. Id. at 496-97. There was, of restoration of cardiac activities, external cardiac course, no question that the wife's brain had massage, heart-lung machines and cardiac pace- ceased functioning during the time she was held makers. ." Id. to have survived her husband. THE TIME OF DEATH except his brain, when the patient himself is him continue the life to which he can for- 12 15 incapable of doing So. Thus a patient with tunately still lay claim. a fatal, irreversible brain injury may be Thus, the battle line between medicine kept "alive" indefinitely via medical ma- chines. The financial cost of this care is and the law has been drawn. Medicine 13 desires to take advantage of recent tech- awesome. It can exceed $25,000 per year. nological advances and proceed with heart Besides the financial burden, maintenance of such a patient takes up hospital room transplants. To do so safely, it needs a new definition of death. It feels it has one, that and requires staff care.' 4 These facts raise is, "brain death," and has established suf- a very important question: should the physiological or the vegetative life of man ficient proof and criteria to effectuate this need. The law, on the other hand, appears control a realistic twentieth century de- finition of death? No one would argue that to be tenaciously clinging to its outmoded definition. The stubborn position of the law a patient maintained on medical machinery with a dead brain is a whole human being. leaves the physician in a precarious posi- Yet there are those who would hold a tion: by proceeding under medicine's physician guilty of homicide if he unplugs "brain death" definition, he risks both civil life-supportive machinery. The medical pro- and criminal sanctions of the law which recognizes only "heart death." This Note fession believes that if a person's brain is will attempt to explore this difference of dead, the person is dead and the vital professional opinion and offer suggestions organs maintained by machinery are merely cellulous tissue which can and should be for a possible resolution. used to aid living human beings. "Legal Death" and the Problems it A dead brain is a dead person. If the body Causes Physicians is still alive, the social being who is a mem- ber of the human race no longer can exist As has been mentioned, Black's Law nor can he be reincarnated. Many of his Dictionary defines death as essentially organs and tissues are still alive, respiring, equivalent to the cessation of heart beat.' emitting carbon dioxide, and using oxygen, To understand more fully the meaning of burning substrates for energy. There is no reason why they should not be transplanted this definition, it is useful to examine a few into the body of another person to help cases. Most of the cases concerning the exact moment of death and its definition involve inheritance contests fought under 12 See, e.g., Problems in the Meaning of Death, the various Simultaneous Death Statutes. SCIENCE, Dec. 11, 1970, at 1235, col. 1 (AAAS The issue of the exact moment of the ces- Symposium); Collins, Limits of Medical Respon- sibility in Prolonging Life, 206 J.A.M.A. 389 sation of heartbeat arises rarely, if ever, in (1968); Death, When is Thy Sting, NEWSWEEK, other contexts. Aug. 19, 1968, at 54; Thanatology, TIME, Aug. 16, 1968, at 66. 13 Death, When is Thy Sting?, NEWSWEEK, Aug. 19, 1968, at 54. 15 Moore, Medical Responsibility for the Pro- 14 See generally Note, Scarce Medical Resources, longation of Life, 206 J.A.M.A. 384, 386 (1968). 69 COLUM. L. REv. 620 (1969). 16 See text accompanying note 9 supra. 18 CATHOLIC LAWYER, SUMMER 1972 In Thomas v. Anderson,17 two men, each holding were followed, a patient in des- of whom had willed his property and assets perate need of a vital organ could die to the other, lived together in the same needlessly while a potential donor, plugged house.