Legal Responses to Religious and Other Objections to Declaration of Death by Neurologic Criteria

Abstract

The concept of death by neurologic criteria has achieved wide, but not universal, acceptance. Disputes arise in the legal context in the form of claims that consent is required for testing for determination of death by neurologic criteria, that these determinations are incorrect, that the tests are unable to satisfy the legal criteria, and that the right to freedom of religion requires that religious objectors be exempted or accommodated. In this chapter, I describe briefly how these challenges have been framed and received by the courts, with a focus on religious objection. Legislators have responded to religious and cultural objections in different ways, occasionally providing statutory exemptions and accommodations. The chapter offers a description of the analysis in McKitty v Hayani (2018), a recent Canadian case that raised a constitutional right to the accommodation of religious objections to death by neurologic criteria. The question remains to be settled legally in Canada.