Inconsistency between the circulatory and the brain criteria of death in the Uniform Determination of Death Act

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Abstract
Since 1968, a brain-based criterion of death has been adopted in medical practice and passed into law or national guidelines in most countries worldwide. In some countries, such as Australia, Spain, and the United States, death can be determined by either the circulatory and respiratory criterion or by the neurological criterion. This practice corresponds to recommendations by the World Health Organization and the World Medical Association. In the USA, the Uniform Determination of Death Act (UDDA) provides that “an individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.” We show that the UDDA contains two conflicting interpretations of the phrase “cessation of functions”. By one interpretation, what matters for the determination of death is the cessation of spontaneous functions only, regardless of their generation by artificial means. By the other, what matters is the cessation of both spontaneous and artificially supported functions. Because each UDDA criterion uses a different interpretation, the law is conceptually inconsistent. A single consistent interpretation would lead to the conclusion that conscious individuals whose respiratory and circulatory functions are artificially supported are actually dead, or that individuals whose brain is entirely and irreversibly destroyed may be alive. We explore solutions to mitigate the inconsistency.
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Archival date: 2022-05-12
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