Legal and ethical issues associated with brain death.

• Author: Griniezakis, Archimandrite Makarios
• Position: Reprint

23 ETHICS & MED. 113 (2007).

The difficult issue of brain death may be tackled from a variety of perspectives, each presenting a case for or against the use of the phrase "brain death" when defining the end of human life. This article focuses on the legal and ethical concerns. Specifically, by pointing to numerous problematic issues surrounding brain death, it calls for caution when using a cortical definition of death. The medical declaration of brain death seems to overturn otherwise tested and needed medical measures and precautions, especially those of advanced medical directives and informed consent, and ethical considerations regarding autonomy and personhood.

In the definition of brain death, the law throughout the world has come up short. Surely, the law has established certain criteria for the determination of brain death as written in the Uniform Declaration of Death Act, hut in essence, it has allowed physicians the freedom to interpret and implement the law in ways that they personally deem acceptable. Most stares "require no special qualifications or training, beyond a general medical license of the individual performing brain death examinations." Most states do not specify the medical tests necessary for confirming brain death. Informed consent plays a critical role in brain death cases when the procurement of human organs comes into play. When physicians diagnose brain death, the family members have the opportunity to donate their loved one's organs if they feel that such action represents his/her desire. If those who offer consent do not adhere to a cortical definition of death, then organ procurement--even with "informed consent" from the patient...