Rethinking Brain Death as a Legal Fiction: <i>Is the Terminology the Problem?</i>

Shah, Seema K.

doi:10.1002/hast.955

Cited by 10 publications

(5 citation statements)

References 14 publications

(9 reference statements)

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“…The critics suggest that since several integrated biologic functions are maintained in patients who are determined BD/DNC, this determination is akin to a legal category, status, or fiction. Legal fictions are devices by which the law treats 2 analogous things (in this case, biological death and BD/DNC) in the same way so that the law developed for one can also apply to the other 14 . Legal fictions can be transparent, as for example when corporations are considered persons under the law.…”

Section: Is Brain Death Real (Biologic) Death?mentioning

confidence: 99%

“…Legal fictions are devices by which the law treats 2 analogous things (in this case, biological death and BD/DNC) in the same way so that the law developed for one can also apply to the other. [14] Legal fictions can be transparent, as for example when corporations are considered persons under the law. Critics argue that for a legal fiction to be ethically justifiable, the fact that BD is a legal fiction not aligned with the standard biological conception of death must be publicly acknowledged and made transparent.…”

Section: Introductionmentioning

confidence: 99%

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Brain death: Controversies and reappraisals

Lazaridis

2024

Clinical Liver Disease

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Section: Is Brain Death Real (Biologic) Death?mentioning

confidence: 99%

Section: Introductionmentioning

confidence: 99%

Brain death: Controversies and reappraisals

Lazaridis

2024

Clinical Liver Disease

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“…39,[46][47][48][49][50][51][52] The basis of BD definitions continues to be questioned by some as being unscientific, or illogical, and contrived to facilitate organ donation. 2,39,42,[53][54][55] Others have suggested that BD determination criteria are not measuring loss that is truly irreversible. 54,64,65,68 More recently with the rise of DCDD, controversy over whether DCDD donors are really dead has become an increasing issue of debate.…”

Section: Controversies Around Brain Deathmentioning

confidence: 99%

“…Hot et al 53 Joffe 54 Miller and Truog 42 Shah 55 Shewmon 39 Truog et al 2 Belkin 56 Bernat et al 57 Shemie and Baker 35 Whether DCDD donors are really dead? Bernat 58 Bernat et al 57 Bernat 31 Shemie and Gardiner 27 Joffe 54 Shewmon 39 Truog 2…”

Section: Controversy Domain Key Proponents Key Opponentsmentioning

confidence: 99%

Healthcare Professionals’ Understandings of the Definition and Determination of Death: A Scoping Review

Zheng

Sutherland

Hornby

et al. 2022

Transplantation Direct

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Background. During the 1950s, advances in critical care, and organ transplantation altered the relationship between organ failure and death. There has since been a shift away from traditional cardiocirculatory based to brain-based criteria of death, with resulting academic controversy, despite the practice being largely accepted worldwide. Our objective is to develop a comprehensive description of the current understandings of healthcare professionals regarding the meaning, definition, and determination of death. Methods. Online databases were used to identify papers published from 2003 to 2020. Additional sources were searched for conference proceedings and theses. Two reviewers screened papers using predefined inclusion and exclusion criteria. Complementary searches and review of reference lists complemented the final study selection. A data extraction instrument was developed to iteratively chart the results of the review. A qualitative approach was conducted to thematically analyze the data. Results. Seven thousand four hundred twenty-eight references were identified. In total, 75 papers met the inclusion criteria. Fourteen additional papers were added from complementary searches. Most were narratives (35%), quantitative investigations (21%), and reviews (18%). Identified themes included: (1) the historical evolution of brain death (BD), (2) persistent controversies about BD and death determination, (3) wide variability in healthcare professionals’ knowledge and attitudes, (4) critical need for BD determination revision. Conclusions. We concluded that although BD is widely accepted, there exists variation in healthcare providers’ understanding of its conceptual basis. Death determination remains a divisive issue among scholars. This review identified a need for increased opportunities for formal training on BD among healthcare providers.

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“…First, legal fictions are known to be fictions [ 27 , 28 ]. To treat BD as a legal fiction would require that the public is aware that the patient is not really biologically dead, but can be treated as such under the law [ 27 , 28 , 211 ]. At present, both the public and medical professionals are not informed that this is a legal fiction, and this would need to change.…”

Section: Potential Ways Forward (Table 5 )mentioning

confidence: 99%

The intractable problems with brain death and possible solutions

Joffe

Khaira

Caen

2021

Philos Ethics Humanit Med

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Brain death has been accepted worldwide medically and legally as the biological state of death of the organism. Nevertheless, the literature has described persistent problems with this acceptance ever since brain death was described. Many of these problems are not widely known or properly understood by much of the medical community. Here we aim to clarify these issues, based on the two intractable problems in the brain death debates. First, the metaphysical problem: there is no reason that withstands critical scrutiny to believe that BD is the state of biological death of the human organism. Second, the epistemic problem: there is no way currently to diagnose the state of BD, the irreversible loss of all brain functions, using clinical tests and ancillary tests, given potential confounders to testing. We discuss these problems and their main objections and conclude that these problems are intractable in that there has been no acceptable solution offered other than bare assertions of an ‘operational definition’ of death. We present possible ways to move forward that accept both the metaphysical problem - that BD is not biological death of the human organism - and the epistemic problem - that as currently diagnosed, BD is a devastating neurological state where recovery of sentience is very unlikely, but not a confirmed state of irreversible loss of all [critical] brain functions. We argue that the best solution is to abandon the dead donor rule, thus allowing vital organ donation from patients currently diagnosed as BD, assuming appropriate changes are made to the consent process and to laws about killing.

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Rethinking Brain Death as a Legal Fiction: Is the Terminology the Problem?

Cited by 10 publications

References 14 publications

Brain death: Controversies and reappraisals

Brain death: Controversies and reappraisals

Healthcare Professionals’ Understandings of the Definition and Determination of Death: A Scoping Review

The intractable problems with brain death and possible solutions

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