Legal Issues Leading to the Notion of Neocortical Death

Abstract

All human beings know the fact and reality of death, yet like Alice, our existence is in many ways a search to understand death. As Samuel Johnson observed to Boswell, “the whole of life is but keeping away the thoughts of it.” Theologians, philosophers, and poets struggle with the meaning of death. Saint Augustine asks what type of death did God intend to enforce His commands. “Was it the death of the soul, or of the body, or of the entire man, or the so-called second death?”1 Yet for Dylan Thomas, “After the first death, there is no other.” The law, too, must face death, particularly the dilemma created by advances in medical science that permit the artificial maintenance of heart, lung, and nourishment functions. This article examines the law’s approach to death by inquiring into the legal issues raised by cardiopulmonary, whole-brain, and neocortical definitions of death. The term “cardiopulmonary death” means the irreversible cessation of heart and lung functions.2 “Whole-brain death” means the irreversible cessation of all functions of the entire brain, including the brain stem. “Neocortical death” means the irreversible loss of consciousness and cognitive functions.3 Several arguments and a proposal emerge from this inquiry. The law should and does define criteria for death.