Legal death

Legal death

Legal death is a legal pronouncement by a qualified person that further medical care is not appropriate and that a patient should be considered dead under the law. The specific criteria used to pronounce legal death are variable and often depend on certain circumstances in order to pronounce a person legally dead. Controversy is often encountered due to the conflicts between moral and ethical values. A person by law can be pronounced legally dead no less than 7 years in most states after they have become missing. An individual may also be pronounced legally dead after going missing in a catastrophic event. Pronouncing these people legally dead may be a concern if these missing people turn up alive. Another topic of concern is the increasing demand for organs for organ transplantation. This is a major focus of concern due to the increasing technological advances in medical equipment. These advances are causing further questions on the actual definition of death. With so many questions revolving around the issues of legal death, declaring a person legally dead in many cases becomes far more than just a medical concern as it also deals a lot with ethical concerns as well.

Organ transplants

Removing organs for organ transplants from a body after death is permitted assuming that the statutory requirements are complied with. However, with technology constantly increasing in its abilities, the question of what can be done to preserve organs is an issue that is highly controversial. Organs are best preserved when left inside of a living body. Consequently, this raises many issues when dealing with patients who are physically incapable of keeping themselves alive. In many cases, medical professionals try to keep a person “alive” for the sole fact of preserving these organs. By doing this, future removal of these organs will be more effective in organ transplant patients. However, in many ways people see this as violating the rights of the organ donor. Generally, if a patient is unable to give permission for medical treatment, they are only allowed to receive treatment if it is found that the treatment would be in their best interest. This raises the question as to whether or not keeping a person alive to remove their organs is ethically correct. Another problem encountered in the topic of organ transplantation is the question of, “When is it permissible to remove an organ from the body?” There have been reported cases of a patient being pronounced dead, and after organ removal finding that the patient had a chance at surviving after all.

In the article “Education and Debate” written by Robert Francis, the ethical debate concerning the elective ventilation of an unconscious patient is discussed and by many standards is found to be unlawful. Francis states, “There is a distinction between the rights in respect of a dead body and a living patient.” According to the law, it is permitted to remove organs from a body after death assuming that the statutory requirements are complied with. But the ethical concern comes into question whenever a patient is unable to give consent to receive medical treatment. At what point can medical treatment be withheld from a patient without their consent?

In the case of a patient who is unable to give permission for medical treatment, treatment can be given to the patient if it is in his or her best interests. This permission of medical treatment comes from the legal doctrine of necessity, which states that it is lawful to intervene in the affairs of another person without their consent, granted that the intervention is intended for that person’s benefit. In many cases, however, treatment is unable to cure the patient’s condition, and consequently, according to judicial suggestions, “a doctor has a duty to discontinue the artificial prolongation of life where this ceases to have any therapeutic point”. According to this principle, elective ventilation of an unconscious dying patient is not justified because they are being medically treated, not by their consent or for their own benefit (as the principle states), but instead for the sole reason of preserving the organs for later donation.

Paragraph 22, of the 1983 Code of Practice, makes it clear that in regards to continuing medical practice on the patient, “ [Treatment] must be for the patient’s benefit”. By keeping the patient alive it is not the patient who is benefiting, but rather the person receiving the organ donation. However, medical procedures can be given to an unconscious dying patient only with valid consent. In a case where a child under the age of 16 is found unconscious and dying, valid consent may be given by the parents of the child to authorize medical treatment. But, once again, this treatment may not be granted to the child if it is found that it is not in his or her best interests. In regards to medical procedures being rendered lawful to an unconscious adult, authority cannot be granted by relatives or any other person, but instead is left up to the principle of whether or not it is in their best interest to receive further medical treatment. [Francis, Robert. "An Ethical Debate: A Legal Comment ." BMJ. 18 03 1995. 8 Mar 2008 .]

Overall, there are many issues to consider taking into account in the debate of ethical values clashing with modern science. Where some say let the patient die due to the inability to cure or help them, others plead to keep them living either in desperate hopes of improvement, or in order to preserve their organs for future donation.

Brain Death

One of the main areas where legal death is usually pronounced is when a person is considered brain dead. Brain death is considered an irreversible coma. A patient is diagnosed as brain dead when there is absolutely no brain activity going on. Brain death is legal in every state, with exceptions for New York and New Jersey. They have exceptions since some believe that a person’s lungs and heart should stop working before it can be declared they are really dead. Many people who have been deemed brain dead are in a vegetative state. A vegetative state is when a person can seem to be awake, have their eyes open, yet they are not aware of anything and their brains are not functioning. A lot of families will argue that their loved one moves, or is responding to them. It is common for younger patients to be able to live a very long time in a vegetative state, and if kept alive by artificial means, “these patients typically die of pneumonia, urinary tract infections, or sepsis related to skin breakdown.” Well known younger patients who were diagnosed brain dead are Terri Schiavo, Nancy Cruzan, and Karen Ann Quinlan. All three of these women were in a vegetative state and never regained consciousness. In each case, loved ones of the patients went to court in order for their brain dead family member to be allowed to die without being kept alive by artificial nutrition. The reason these women were allowed to die without it being considered murder was because they were pronounced legally dead. They are known as “right-to-die” cases, since they had a good reason for the right to die. [ Fine, Robert. "From Quinlan to Schiavo: Medical, Ethical, and Legal Issues in Severe Brain Injury." Baylor University Medical Center Proceedings (2005): 303-310.]

With time the definition of legal death has been reexamined and altered as our technology enhances. The definition of death use to include only cessation of heart and lungs but now after further development it has been altered so that it can include permanent and irreversible brain failure. By June 1987, 39 states had also adopted this law into action to include brain death. [Sullivan, Ronald. "FAILURE OF BRAIN IS LEGAL 'DEATH,' NEW YORK SAYS ." The New York Times. 19 Jun 1987. 4 Mar 2008 .] Changing the definition will always bring up new ethical concerns; especially when it involves organ transplants.


Another area where legal death comes into play is when it comes to cryonics. The science of cryonics is preserving humans or pets at very low temperatures, hoping that in the future they can be brought back to life and cured from old age and illnesses they may have had. It involves replacing body fluids with anti-freeze fluids, preventing the body from freezing damage. Cryonics is only legal when a person has been pronounced legally dead. Usually, a person is declared dead when their heart has stopped beating. However, most of the cells in the body and in the brain are still alive even when a person is declared dead. Human cells typically take many hours to die. People in support of cryonics believe that cryonics patients are not really dead since, “Legal death and real death are not the same thing.” [Carpenter, Meredith. "Cryonics: Cheating Death or Just Freezing It?" Hybrid Vigor. 8 Mar 2008 .]

Moral and Ethical Issues

Declaring a person to be legally dead exceeds just the lawful issues of the topic. It becomes a very controversial subject when the ethical values are taken into account. People often argue about the morals behind the definition of death; especially in the subject of organ donations. This is because (as previously stated) cases have been reported of a patient being declared legally dead who is later found to be alive. There are a few rare cases in which this has happened. There is also the ethics of keeping someone “alive” that will not come out of a coma.

In the article by Dr. Lawrence A. Howards, he talks about how people are sometimes misdiagnosed to be dead in which they wake up. He spoke of an instance where a patient was pronounced dead so they took him to the operating room to begin taking out his organs. The doctor began to remove his kidneys and liver. Once the liver was removed the patient became conscious and starting moaning in pain. It was too late since the doctor had already removed his liver. Instances like this are rare but nonetheless do happen. This brings up the controversial part of organ donations. Dr. Howards talks of instances in which people that they know are going to survive are still operated on. He also speaks of a time when a woman appeared to be unable to breathe on her own; therefore, they pronounced her legally dead. They had been scheduled to do an organ transplant that day. Later, they realized that they made an error on the medical ventilator and once that was fixed, she was able to breathe on her own once again. A few days later she was able to sit up in bed and talk to her husband. [Howards, Lawrence. "Ethics of Organ Donation." Milwaukee Journal Sentinel. 20 06 1999. 8 Mar 2008 .]

The majority of the instances, the organ transplants had been very successful. Organ donors save many lives. The way the organs are donated and the logistics used to determine when necessary and safe transplants are done can sometimes be controversial.

There is another instance in which babies are sometimes born with anencephaly which means that they have no brain cortex. These infants are expected to live about one week. This brings about the question of declaring the baby brain dead and donate the organs while the organs are still healthy or to let the baby die on its own and the organs are then sometimes not able to be used. If a couple had a baby and it had that condition, they must go through the Supreme Court to get their answer if it is legitimate to declare the baby brain dead and donate the organs. [Chartrand, Sabra. "Legal Definition of Death Is Questioned in Florida Infant Case." New York Times. 29 03 1992. 8 Mar 2008 .]

Countries have different criteria in order to declare someone dead. Most criteria involve the cessation of the heart and lungs along with no brain activity. There has been a recent development to include the absence of brain activity. This adds more to further the process for determining if one is dead or alive.

Cruzan, Schiavo, and Quinlan, as previously discussed, were all Catholic, and Catholics believe that a feeding tube is, “morally obligatory.” The pope gave many reasons as to why a vegetative patient should receive artificial nutrition and hydration (ANH). Catholics also believe that ANH is, “morally optional.” This is based on the belief that the physical life is less important than the spiritual life.

One particular problem arises when the family and the state disagree on the legal definition of death and the state issues a death certificate for a patient whom the family insists is still living, such as in the case of Jesse Koochin in Utah. [Appel, JM. Defining Death: When Physicians and Families Differ” "Journal of Medical Ethics" Fall 2005]

When it comes to justice, you have to consider the medical costs of keeping someone alive. “Can a society that cannot find enough resources to insure the 44 million persons (25% of whom are children) with no government or private health insurance really afford to maintain patients in a persistent vegetative state at a cost of $40,000 to $100,000 each per year? However, “there are 10,000 to 100,000 patients in a persistent vegetative state in the USA. [ Fine, Robert. "From Quinlan to Schiavo: Medical, Ethical, and Legal Issues in Severe Brain Injury." Baylor University Medical Center Proceedings (2005): 303-310.]

Legal/Law Aspects of Legal Death

The law calls people who disappear “missing” or “absent”, but Professor Jeanne Carriere prefers the dramatic term, “the living dead”. She wrote an article titled, “The Rights of the Living Dead: Absent Persons in Civil Law,” which was published in the Louisiana Law Review. According to her the number of cases of “living dead” in the United States is estimated to be between 60,000 and 100,000. There are several criteria for declaring someone dead by assumption. One, if he/she has been missing from his/her home or usual residence for a period of seven years (amount of years will vary state to state); or such absence has been continuous without explanation. Also, in the case if persons most likely to hear from him/her have heard nothing; and the missing person cannot be located by inquiry and by diligent search. [Carriere, Jeanne. "The Rights of the Living Dead: Absent Persons in the Civil Law." 50 La. L. Rev. 901 (1990)] Often the missing person's bank accounts will be checked for activity and possible sightings will be investigated. In England, if it is believed that there should be an inquest the local coroner will file a report; this may be done to help a family receive a death certificate that will bring some closure. This will bring any suspicious circumstances into light. The coroner will then apply to the justice secretary under the Coroners Act 1988 section 15, for an inquest with no body. The seven years rule will only apply in the High Court on the settlement of an estate. According to a spokesman for the Ministry of Justice, the number of requests received each year is less than 10 a year and very few are refused. Without a body an inquest relies mostly on evidence provided by the police, and whether the senior officers believe the missing person is legally dead. ["When is a missing person declared dead?." BBC . 05 Dec 2007. BBC News. 4 Mar 2008 .]

According to Edgar Sentell, a retired senior vice-president and general counsel of Southern Farm Bureau Life Insurance Company, almost all the states recognize the presumption of death, by statute or judicial recognition of the common law rule. However, some states have amended their statutes to lower the seven-year period to only five consecutive years missing, and some, such as Minnesota and Georgia, have reduced the period even shorter to four years. [Sentell, Edgar. "The Missing Insured and the Life Insurance Death Claim." FDCC Quarterly, Winter 2004: .]

If someone disappears, those interested can file a petition to have them declared legally dead. They will have to prove the criteria above that the person is in fact dead. There are constitutional limitations to these procedures: The presumption must arise only after a reasonable amount of time has elapsed. The absent person must be notified, court permit the claimant to be notified by publication; nobody really expects the absent person to read it. “Adequate safeguards concerning property” provisions must be made in the case that an absent person will show up. There are some states that require those who receive assets of the missing person’s to return them if the person turned out to be alive. If a person is declared dead, when missing, their estate will be distributed as if they were deceased. In some cases, the presumption of death can sometimes be rebutted, according to Sentell, courts will consider evidence that the absent person was a fugitive from justice, had money troubles, had a bad relationship, or had no family ties or connection to a community as reasons not to presume death.

A person can be declared legally dead after they are exposed to “imminent peril” and fail to return, like a plane crash, as portrayed in the movie Cast Away. In these cases courts will generally assume the person was killed even though the usual waiting time for someone to be declared dead has not elapsed yet. Sentell also says, “The element of peril accelerates the presumption of death.” This rule was enacted after the attack on the World Trade Center, so that death certificates could be established. Although people who are presumed dead sometimes turn up alive, it is not as common as it used to be. There has been one recent memorable case where this has occurred, such as in the case of John Burney who disappeared after financial problems and reappeared years after, December 1982, to Arkansas. His company and wife had already received the death benefits so upon returning the life insurance company filed a suit against him, his wife, and his company. In the end, Burney’s actions were ruled fraudulent in court, along with a $470,000 fine. ["What Happens When Someone "Legally Dead" Shows Up Alive?" The Straight Dope. 1996-2008. Straight Dope Science Advisory Board. 5 Mar 2008 .]

ee also

* Brain death
* Clinical death
* Cryogenics
* Death
* Death in absentia
* Information-theoretic death
* Missing Person
* Organ transplant


External links

* [ LegalWikiPro Article on Brain Death, Organ Donation and Civil Action for Mishandling of Dead Body under Oklahoma law]

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