Abstract
The neurologic determination of death has been debated almost since its inception. In this chapter, I explain how a legal fictions approach may be helpful for understanding and addressing persistent debates about the neurologic determination of death. Legal fictions are false statements made for some legal purpose, such as the idea that corporations are persons. Although these legal tools are not uncommon, they can be problematic when unacknowledged. Thinking of the neurologic determination of death as an unacknowledged legal fiction provides a way to understand its historical development. As a legal or policy matter, one way to reconcile seemingly intractable debates about how to determine death could be to move to acknowledge this fiction by building in reminders of its falsity, along with providing exemptions for those with deeply held views to the contrary. To the extent the terminology of “legal fictions” is unappealing, the neurologic determination of death could equally be understood as a legal status. Finally, in light of several proposals to revise the legal language for determining death by neurologic criteria, the theoretical basis for legal fictions can help warn of potential dangers in this process of revising the law.
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