1 Russell Scott, The Body as Property (New York: Viking Press, 1981).Google Scholar

2 Fost, Norman, Research on the Brain Dead, 96 J. Pediatrics 54 (1980).Google Scholar

3 John A. Robertson, Surrogate Motherhood: Not So Novel After All, Hastings Center Report (forthcoming).Google Scholar

4 Klein, Russell C., Brain Death with Prolonged Somatic Survival [letter to the editor], 306 New Eng. J. Med. 1361, 1362 (1982).Google Scholar

5 Robin Cook, Coma (New York: New American Library, 1977).Google Scholar

6 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Defining Death: A Report on the Medical, Legal and Ethical Issues in the Determination of Death (Washington, D.C.: Government Printing Office, 1981).Google Scholar

7 Dead UW Official Blinks as Doctors Start to Operate, Capital Times (Madison, Wis.), Feb. 13, 1975, at 1.Google Scholar

8 Kouewenhoven, W. B., Jude, James R., & Knickerbocker, G. Guy, Closed-Chest Cardiac Massage, 173 J.A.M.A. 1064 (1960).Google Scholar

9 Alexander S. Nadas & Donald C. Fyler, Pediatric Cardiology (3d ed. Philadelphia: W. B. Saunders co., 1972).Google Scholar

10 A Definition of Irreversible Coma: Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death, 205 J.A.M.A. 337 (1968).Google Scholar

11 The degree to which the committee was muddled in its purposes has been noted elsewhere. Veatch, Robert M., The Whole-Brain-oriented Concept of Death: An Outmoded Philosophical Formulation, 3 J. Thanatology 13 (1975). The title of the committee's report, A Definition of Irreversible Coma, suggests that the purpose was to present medical criteria for predicting which patients would never regain con sciousness. That is a proper function for medical experts, one achievable by reviewing empirical data, but it is a purpose which is different from that stated in the committee's name—“to examine the definition of brain death.”Brain death is generally understood to refer to death of the whole brain, including those parts that serve only vegetative functions. It is a different matter from death of the part responsible for consciousness, which is implied by “irreversible coma” in the title. The real confusion, however, begins with the first sentence of the text, quoted above, which in effect claims that the purpose is not to define coma or even brain death—eminently medical questions—but to take on the philosophical and legal question of death itself and, with minimal argument, to equate it with brain death.Google Scholar

12 Dworkin, Roger B., Death in Context, 48 Ind. L.J. 623 (1973).Google Scholar

13 Indeed, to this day no physician in the United States has been found criminally or civilly liable for discontinuing life support for any patient, brain dead or otherwise.Google Scholar

14 Towers, Bernard, Irreversible Coma and Withdrawal of Life Support: Is It Murder If the IV Line Is Disconnected?, 8 J. Med. Ethics 203 (1982). The patient in this case was not brain dead but in a “persistent vegetative state.”CrossRefGoogle Scholar

15 It was not necessary in those cases to find that the victim was dead at the time the brain became irreversibly dead. The homicide charge could have been sustained by finding that there was an inseparable causal link between the attack that caused the brain injury and the ultimate death of the patient, even if death were assumed not to have occurred until the traditional criterion of cessation of cardiorespiratory function had been met. As noted above, withdrawal of life support resulting in such cessation did not, by anyone's judgment, constitute criminal or negligent conduct; ambiguity about that could be resolved through the clarifying or immunity statutes.Google Scholar

16 Human Life Bill: A Bill to Provide That Human Life Shall Be Deemed to Exist from Conception: Hearings on S. 158 Before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 97th Cong., 1st Sess. (1981).Google Scholar

17 Leon Rosenberg, in id. Google Scholar

18 Daniel Callahan, The Role of Science in Moral and Societal Decision Making: The Human Life Bill as a Case Study, in Margery W. Shaw & A. Edward Doudera, eds., Defining Human Life: Medical, Legal and Ethical Implications (Ann Arbor, Mich.: Health Administration Precs, AUPHA Press, 1983).Google Scholar

19 This latter entity could be called very dead, or truly dead, or dead dead. I will use dead dead. Google Scholar

20 Fost, supra note 2, at 1; Smith, D. H., On Being Queasy, 2 IRB: A Review of Human Subjects Research 6 (1980).Google Scholar

21 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Resarch, Protecting Human Subjects: First Biennial Report on the Adequacy and Uniformity of Federal Rules and Policies, and Their Implementation, for the Protection of Human Subjects in Biomedical and Behavorial Research (Washington, D.C.: Government Printing Office, 1981); id., Implementing Human Research Regulations: 2nd Biennial Report on the Adequacy and Uniformity of Federal Rules and Policies, and Their Implementation, for the Protection of Human Subjects in Biomedical and Behavioral Research (Washington, D.C.: Government Printing Office, 1983).Google Scholar

22 45 C.F.R. 46.102.f (1982).Google Scholar

23 Robertson, John A., Research on the Brain Dead, 2 IRB: A Review of Human Subjects Research 4 (1980).Google Scholar

24 Robertson, John A., Involuntary Euthanasia of Defective Newborns: A Legal Analysis, 27 Stan. L. Rev. 213 (1975).Google Scholar

25 Green, Michael B. & Wikler, Daniel, Brain Death and Personal Identity, 9 Phil. & Pub. Aff. 105 (1980).Google Scholar

26 Whether or not a headless chicken running around the barnyard is really dead is certainly open to debate. I do not wish, any more than Scott did, to use this space for exploring that question, but it is not so settled as to justify Scott's dismissal of all opposing views.Google Scholar

27 Morison, Robert S., Death: Process or Event? 173 Science 694 (1971); Kass, Leon R., Death as an Event: A Commentary on Robert Morison, 173 Science 698 (1971).Google Scholar

28 This notion that death is defined as passing an irreversible point in the progress from a state of living to a state of nonliving is novel and raises further problems. All of us pass such irreversible points from the moment of conception. The differences between the living and the dying are, by this criterion, quantitative: some are chronologically closer to a state of nonliving. Also there are differences between lives close to nonliving in the quality of the life that remains, and these may partly justify policies of discontinuing life support, but that is separate from the question of whether the patient is dead or alive.Google Scholar

29 Roe v. Wade, 410 US. 113 (1973).Google Scholar

30 McFall v. Shimp, No. GD 78–17711 (Eq. Ct. C. P., Allegheny County, Civ. Div., Pa., July 26, 1978).Google Scholar

31 William L. Prosser, Handbook of the Law of Torts (4th ed. St. Paul, Minn.: West Publishing Co., 1971).Google Scholar

32 One could also point out that such intrusions as blood tests before marriage and compulsory vaccinations have benefits for the compelled individual as well as for society, but there is little doubt that the intent and justification of these laws is societal protection rather than a paternalistic concern for the individual under compulsion.Google Scholar

33 Lacey v. Laird, 166 Ohio St. 2d 12, 139 N.E.2d 25 (1956).Google Scholar

34 Bonner v. Moran, 126 F.2d 121 (D.C. Cir. 1941).Google Scholar

35 Fost, Norman, Children as Renal Donors, 296 New Eng. J. Med. 363 (1977). The psychological benefits include avoiding the grief attendant on death of a sib or loved one, the pleasures of the continued company of the recipient, the avoidance of guilt on discovering later in life that one had not rescued a loved one, and the extremely good feeling, sometimes exhilaration, from knowing that one has succeeded in saving the life of a loved one or has tried to.Google Scholar

36 Hart v. Brown, 29 Conn. Supp. 368, 289 A.M 386 (Super. Ct. 1972).Google Scholar

37 Strunk v. Strunk, 445 S.W.2d 145 (Ky. 1969).Google Scholar

38 In re Richardson, 284 So. 2d 185 (La. App. 1973).Google Scholar

39 In re Guardianship of Pescinski, 67 Wis. 2d 4, 226 N.W.2d 180 (1975).Google Scholar

40 There were other issues involved in these decisions, particularly the question of whether legal principles pertaining to the disposition of an incompetent's property could be used to make unconsented gifts of parts of his body. It is nonetheless true that all cases can be seen as consistent with the principle that benefit for the donor is a prerequisite.Google Scholar

41 Baron, Charles H., Botsford, Margot, & Cole, Garrick F., Live Organ and Tissue Transplants from Minor Donors in Massachusetts, 55 B.U.L. Rev. 159 (1975).Google Scholar

42 See note 30 supra. Google Scholar

43 Prosser, supra note 31.Google Scholar

44 Raleigh Fitkin-Paul Morgan Mem. Hosp. v. Anderson, 42 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985 (1964).Google Scholar

45 Jefferson v. Griffin Spalding County Hosp. Auth. 247 Ga. 86, 274 S.E.2d 457 (1981).Google Scholar

46 This case has become famous not only for its legal importance. After the court order, in what is considered by some to be an act of God, the placenta appeared to have migrated from its abnormal position to one consistent with safe, vaginal delivery, which was carried out with salutary results. Berg, R. N., Georgia Supreme Court Orders Caesarean Section—Mother Nature Reverses on Appeal, 70 J. Med. A. Ga. 451 (1981).Google Scholar

47 Bowes, W. A. & Selgestad, B., Fetal Versus Maternal Rights: Medical and Legal Perspectives, 58 Obstet. & Gynecol. 209 (1981).Google Scholar

48 247 Ga. 86, 274 S.E.2d 457 (1981).Google Scholar