Is brain death a legal fiction?

Abstract

Summary Franklin Miller, Robert Truog, and Seema Shah claim that brain death is not really death and that interest in organ transplantation was the primary motivation behind its acceptance as a criterion for determining death. Since it is unlikely that these “facts” can remain hidden from the public much longer, they are concerned that, if the truth becomes widely known, the public may reject transplantation from brain-dead donors as a violation of the “dead donor rule.” However, in their view, transplantation from brain-dead donors should continue, since no harm is done to the donors and the recipients of the organs benefit greatly from the transplantation. They therefore propose that we accept brain death as a kind of “legal fiction” and become more transparent about how this fiction may be useful and ethically appropriate in permitting vital organ transplantation. In this paper, I maintain that Miller, Truog, and Shah's view is seriously flawed. I argue that, because brain death (total brain failure) is a true criterion for determining death, it is not a fiction at all and therefore cannot be a “legal fiction.” Organ transplantation from brain-dead donors should continue because those donors are really dead.