Digital Commons @ Touro Law Center Scholarly Works Faculty Scholarship 1998 Fragments on the Deathwatch Louise Harmon Touro Law Center, [email protected] Follow this and additional works at: https://digitalcommons.tourolaw.edu/scholarlyworks Part of the Health Law and Policy Commons Recommended Citation 77 Minn. L. Rev. 1 (1993) This Book is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ Touro Law Center. It has been accepted for inclusion in Scholarly Works by an authorized administrator of Digital Commons @ Touro Law Center. For more information, please contact [email protected]. Fragments on the Deathwatch Louise Harmon* TABLE OF CONTENTS Section I: Deathwatches ................................... 1 Section II: Paintiffs, Procedure, and the Limits of Law W ishes .............................................. 35 Left Hemisphere Interlude ............................ 84 Section III: Moving up the Brainstem ..................... 86 Section IV: Death Thought, Death Talk, and the Eviden- tiary Implications of Taboo .............................. 91 Section V: Law and the Architecture of Ritual Space .... 129 Right Hemisphere Coda ............................... 160 I. DEATHWATCHES The other night I saw a documentary on television about some elephants in Botswana.1 The herd was in trouble. Water was scarce, and the elephants were on the move. They trav- elled north to the Linyanti River, following the ancient paths of their ancestors. An elderly cow staggered behind the others, weakened from starvation, dehydration, and advanced age. Suddenly she slipped in the sand. The wind blew so fiercely across the hot, dry land that when she fell only a muffled cry could be heard over the white howl of air in motion. It was like * Associate Professor of Law, Jacob D. Fuchsberg Law Center, Touro College. I would like to thank the following students for their excellent re- search assistance: Irwin J. Berkowitz, Nancy Ellis, Margie Forbes, and Leslie Ann Rosenstein. I would also like to express my gratitude to Charles B. Wheeler for his editorial assistance and to Marsha L. Freeman, Susan J. Goss, Beth Mobley and Geraldene Roselle of the Touro Law Center Library for their dogged and cheerful pursuit of arcane materials. This piece is dedicated to my father, John E. Harmon, Jr.-to his soul and to the trillium in the ravine. 1. Journey to the Forgotten River (PBS television broadcast, Mar. 14, 1990). In Botswana, the animals had relied on the Linyanti River and the Savuti Channel for water. In 1982, seismic shifts and a severe drought oc- curred. The rainwater pans dried out and drained the Savuti, forcing the ani- mals to retreat 70 miles north to the Linyanti. Thousands of buffalo, zebra, elephants and other animals trudged through the dust in the searing heat. Id- MINNESOTA LAW REVIEW [Vol.[ 77:1 watching a silent movie. Her legs sprawled and dangled; her parched body almost rolled over, propelled by her weight and the speed of her fall. Her head arched back; her trunk curled; her mouth opened wide in a protest of pain. But the sound of her body as it hit the ground could not be heard over the unre- lenting wind. At least I could not hear it as I drank a cup of coffee and watched her die from my cozy kitchen on Long Island. As she lay there panting on the ground, the narrator com- mented in his neutral male voice, the voice of science and rea- son, "They wait, clearly reluctant to leave her. In the blazing sun, she became dehydrated. Because the survival of the herd is more important than the life of an individual, the old cow is left to die-alone."2 Then, because the medium of film forces us to see the world through the eyes of another, I too, like the elephants, had to move on, following the herd as it crossed the wheat- colored land in search of food and water. And I too, like the elephants, wanted to stay with her. I did not want her to die alone. Elephants attend the births and deaths of members of their species. When an elephant calf is born, some of the herd will encircle the mother, acting as midwives and sentries. When the calf is delivered, the attendants will trumpet loudly, swaying their bodies and flapping their ears. Then they will fondle and caress the dark, damp baby and help it to stand. After the cele- bration is over, a hush will descend upon the herd.3 Perhaps the elephants fall silent out of respect for the new family; per- haps out of fatigue; perhaps out of wonder, if there is such a thing as elephant wonder. I see no reason why there should not be. At the end of life, an elephant rarely dies alone. The same research team that filmed the fallen cow in Botswana also doc- umented the death of an old bull. After the elephant had fallen, the other members of the herd huddled around him. Four hours later, when he died, they approached his body in twos and threes, sweeping their trunks slowly over him, not touching him for the most part but maintaining an inch of distance between his skin and the moist tips of their trunks. The ritual was more impressive for its si- lence. Not a rumble was uttered, and no scraping of skin or sand 2. Id. 3. RAMEsH BEDI, ELEPHANT: LORD OF THE JUNGLE 19 (1969). 1992] 9]DEATHWATCH 4 broke the afternoon stillness. There is beauty in their gestures, in their shared silence, in the very fact that they attend. When I first learned about the complex social behavior of whales and dolphins, it occurred to me that, in many ways, 5 6 these cetaceans were just like wet elephants. Like elephants, whales and dolphins exhibit what animal behaviorists call "epimeletic" behavior, the succorant behavior of the adult members of a group toward another adult that is in distress or dying.7 There are different kinds of epimeletic behavior. One kind 4. Dereck Joubert, Eyewitness to an Elephant Wake, 179 NAT'L GEO- GRAPHIC, May 1991, at 39, 40. Elephants are particularly vigilant when their young die, for they are loath to let go. One African cow carried about her calf that had been dead for two days. She would put it down to eat or drink, but then would pick it up again when she moved on. BEDI, supranote 3, at 62. Elephants also mourn their dead. Lakshmi, an elderly circus cow, died of grief after the death of her longtime mate. 'Lakshmi continued to walk around the empty post of her departed companion and would not be consoled." Id at 64. She stopped eating when he died and, within two weeks, was dead as well. Id 5. '"The order Cetacea is divided into three suborders: the Archaeoceti, all of which are extinct and known only from fossil remains; the Odontoceti or toothed whales, containing the majority of the living species forming the or- der, and the Mysticeti, the whalebone or baleen whales." L. HARRISON MAT- THEWS, THE NATURAL HIsTORY OF THE WHALE 25 (1978). "Most of the members of the Odontoceti are comparatively small porpoises and dolphins, though some, such as the Beaked whales and the Killer whale, reach a length of 30 feet and one, the Sperm whale, reaches 60 feet or more." Id at 28. While the number of species of whalebone whales, the Mysticeti, is small, each animal is enormous individually. The Mysticeti include such mammoths as the Humpback whale, the Blue whale and the Fin whale. The Blue whale can measure one hundred feet or more. Id. at 43-46. 6. There are many documented instances of elephants helping a member of the herd in distress or appearing unwilling to desert an injured member. In one account, a bull, wounded by a gunshot, fell to the ground. His three adult male companions "closed in on him, one on either side and one behind, and they just boosted him on to his feet and, in that formation, supporting him on either side, set off, wheeling gradually round to the left and back to the for- est." RICHARD CARRINGTON, ELEPHANTS 83 (1958) (quoting DAvID E. BLUNT, ELEPHANT 97-98 (1933)). Another elephant watcher reported that most accounts described the ef- forts of cows to assist a stricken bull. While bulls have on occasion helped an- other bull, there are few reported instances of other elephants trying to help a stricken cow. Id 7. See generally Melba C. Caldwell & David K. Caldwell, Epimeletic (Care-giving) Behavior in Cetacea, in WHALES, DOLPHINS, AND PORPOISES 755 (Kenneth S. Norris ed., 1966) (discussing research involving odontocetes). MINNESOTA LAW REVIEW [Vol. 77:1 is called "standing by," although the old whalers used more nautical terms such as "heaving to" or "bringing to." When a cetacean companion is distressed or wounded, the entire school remains close, or "stands by," even at the risk of danger." In a second kind of epimeletic behavior, called "excitement," the succorants approach the distressed animal and make a display of extreme agitation, sometimes even attempting a rescue.9 A third kind of epimeletic behavior is called "supporting behav- ior." Cetaceans exhibit supporting behavior when an animal is rendered unable to break surface; members of the group will push him towards the light and air so that he can breathe.10 There have even been reported instances of dolphins pushing a drowning human swimmer to the surface." The urge to render aid may even extend to other species. 2 What motivates cetaceans to care for one another? Animal behaviorists do not agree. Some argue that epimeletic behavior is nothing more than an instinctive reaction-it is all a matter of ancient chemistry.