Brain Death and the Law: Hard Cases and Legal Challenges

Brain Death and the Law: Hard Cases and Legal Challenges The determination of death by neurological criteria—“brain death”—has long been legally established as death in all U.S. jurisdictions. Moreover, the consequences of determining brain death have been clear. Except for organ donation and in a few rare and narrow cases, clinicians withdraw physiological support shortly after determining brain death. Until recently, there has been almost zero action in U.S. legislatures, courts, or agencies either to eliminate or to change the legal status of brain death. Despite ongoing academic debates, the law concerning brain death has remained stable for decades. However, since the Jahi McMath case in 2013, this legal certainty has been increasingly challenged. Over the past five years, more families have been emboldened to translate their concerns into legal claims challenging traditional brain death rules. While novel, these claims are not frivolous. Therefore, it is important to understand them so that we can address them most effectively. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Hastings Center Report Wiley

Brain Death and the Law: Hard Cases and Legal Challenges

Hastings Center Report, Volume 48 – Jan 1, 2018

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Publisher
Wiley
Copyright
Copyright © 2018 Wiley Subscription Services, Inc., A Wiley Company
ISSN
0093-0334
eISSN
1552-146X
D.O.I.
10.1002/hast.954
Publisher site
See Article on Publisher Site

Abstract

The determination of death by neurological criteria—“brain death”—has long been legally established as death in all U.S. jurisdictions. Moreover, the consequences of determining brain death have been clear. Except for organ donation and in a few rare and narrow cases, clinicians withdraw physiological support shortly after determining brain death. Until recently, there has been almost zero action in U.S. legislatures, courts, or agencies either to eliminate or to change the legal status of brain death. Despite ongoing academic debates, the law concerning brain death has remained stable for decades. However, since the Jahi McMath case in 2013, this legal certainty has been increasingly challenged. Over the past five years, more families have been emboldened to translate their concerns into legal claims challenging traditional brain death rules. While novel, these claims are not frivolous. Therefore, it is important to understand them so that we can address them most effectively.

Journal

Hastings Center ReportWiley

Published: Jan 1, 2018

References

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