Death before Dying

3

The Law

“We take judicial notice that one breathing, though unconscious, is not dead.”

—SMITH V. SMITH, 1958

“The extraordinary definition of death is tending toward recognition of “life” as neurological in form, and that an interruption of the cerebral function should be the determining point in deciding that death is present, regardless of the continued function of other organs.”

—M. MARTIN HALLEY AND WILLIAM HARVEY,

Indiana Legal Forum, 1968

The differences between Beecher’s Committee and its critics over what sort of fact death should be, as discussed in the prior chapter, reflected a tangle over what were actually shared problems that could not easily or most usefully be reduced to a contest between ethics and medicine. Rather, such conflicts arose from differing experiences with ethical and medical facts. Self-described ethicists were not the only ones concerned about whether death was properly framed as a fact by medical practice. Lawyers and judges were also explicitly concerned with what kind of fact death was, and with what concepts and experiences were relevant to its definition. They tended to consider these issues with a pragmatism that was similar to that of Beecher and the Committee.

William Curran’s job was to address the legal standing of death based on irreversible coma. Beecher circulated an early draft of Curran’s section of the Report to Committee members in April 1968. It was a verbatim reproduction of “Notes” Curran had prepared apparently for the Committee meeting of March 14.1 The task of that section, as it finally appeared in the published Report, was to argue that there was legal sanction for the shift from regarding breathing and circulation as the fundamental signs of life, to the “recognition of ‘life’ as neurological in form,” and, furthermore, “that an interruption of the cerebral function should be the determining point in deciding that death is present.”²

The legal authority for such a shift was not obviously supported in the Report. Courts had regularly referred, mantra-like, to the authoritative Black’s Law Dictionary, which specified the loss of respiration, circulation, and pulsation as the definition of death. Case law that had ventured into the question of when death occurred had relied on that description of the end of life for decades, if not centuries. But a shift, the Report argued, was not as exceptional as it appeared, because the durable principle in Black’s was itself less about lungs and hearts than about how the judiciary generally deferred to medical consensus. The law, the Report asserted, would adopt shifts in medical opinion and in the conditions of medical practice. Others argued that as well. And essentially that is what happened.

Interpreting this shift merely as an example of “medicalization,” as most commentators have, can deter curiosity as to how this change happened—from defining life as breathing and beating to “neurological in form”—and exactly what was changing in this process. While judicial (and legislative) deference to medical judgment was certainly the overall trend in the case of defining death, the motor of that trend was arguably more than simply the power of physicians or medically defined ends. The increasing adoption of a view of ourselves as “neurobiological selves” over the past half-century is too superficially laid at the feet of assertive medical professionals. A confluence of larger conceptual, economic, technological, and biopolitical changes are needed to explain this change, one that carries risks of objectification, but also possibilities to enrich and accelerate social, medical, and ethical ways of knowing.³ Early in this shift toward a more neurological definition of death, before the criteria appeared several legal scholars called for such reconsideration of how to define death. The intrusion of medicine-speak into judicial fact finding has always had complex purposes and results. It could advance democratization and empowerment in fact finding, but could also increase reliance on expert authority.4 Where was legal opinion on brain death coming from?

CURRAN’S NOTES

In his “Notes,” Curran reviewed “the few modern court decisions involving a definition of death.” He detailed three cases, widely described in legal medicine circles, in which there was a question as to the relative timing of death of two persons who died in the same accident, or as to the cause of death when kidneys were removed from a “brain dead” individual. Should a woman be considered to have died after her husband, given the fact that her death was declared at the time of cardiac arrest while unconscious on a respirator some time after the accident that also “instantly” killed him? Did a man die when his breathing spontaneously ceased? Or, when subsequently placed on a respirator, was it the later removal of both of his kidneys for transplant that claimed his life?⁵

Curran selected cases that closely matched the facts of brain death so as to anticipate judicial response to the use of the Report’s criteria. These cases involved people whose conditions resembled the ones that the Committee was trying to define. Several physicians instrumental in establishing the biology and care of the severely comatose, such as Fred Plum, C. Miller Fischer, and several of their contemporaries (whose work I will explore further) had been making decisions to turn off respirators at least since the latter 1950s without recalling significant concern at the time for legal barriers or lawsuit.⁶ What role, then, did this review of legal cases play in the Report?

Curran’s memorandum predicted what to expect from a judge if the brain death criteria were brought before a court. Not surprisingly, Curran found that no precedent existed for legal recognition of brain death. What he found were cases that, despite the appearance of factual similarities, did not directly address the relevant issues. Much of Curran’s memorandum explained how these cases presented legal questions not directly germane to what he saw as the question facing the Committee; that is, whether brain death would be recognized within the common law as death. The inquest case, for example, was widely quoted, as it seemed perhaps the only case up to that time to rule on the legal validity of brain death. In that case, a man who was knocked unconscious in a fight was brought to the hospital, placed on a respirator, and determined unsalvageable due to brain injury. His wife gave permission to remove his kidneys for the purpose of transplantation. They were removed and then the respirator turned off. A coroner’s inquest found that the cause of death was the original injury, not the kidney removal. But it was unlikely that this case offered a reliable precedent to support use of the brain death criteria. As Curran pointed out in his memorandum, a coroner’s jury could not make law and, more to the point, the legal issue in this case was the cause, not the criteria, of death. The surgeon was found not to have changed the outcome. Indeed, if any criteria of death were endorsed in this case, it was that of the loss of heart-lung function, since doctors testified that the patient was already dead, as in not breathing, before being placed on the respirator. He died first. This logic set up precisely the dilemma that concerned the Committee and that the inquest thought it avoided—namely that by relying on that traditional definition, logical consistency required that this individual be understood to have been reanimated, brought back to life when put on the respirator, a point which contradicted the premise that the surgeon did not cause the death. The inquest offered no legal clarity for this dilemma, despite the apparent opportunity to do so. It may have instead opened the door to further confusion.

The two simultaneous death cases Curran cited were, similarly, not directly germane to the legal legitimacy of brain death. Smith v. Smith received most of Curran’s attention because the opinion explicitly endorsed the notion that one who is “breathing, though unconscious, is not dead.”7 That opinion would appear to reject brain death. But the legal significance of this statement, Curran opined, was not as it appeared. The judge in Smith took “judicial notice” that continued breathing ruled out death, meaning that he described death as a fact enjoying a consensus such that he would not entertain evidence to the contrary. “Consensus” generally meant the Black’s Law Dictionary’s definition of death as a “total stoppage of the circulation of the blood” and a “cessation of the animal and vital spirits consequent thereupon, such as respiration, pulsation, etc.”8 But Curran explained that the “notice” was less a ruling on one definition as opposed to others than it was a statement to the effect that the law assumed there was a background consensus as to what criteria for death were. These near-miss judicial encounters with brain death led Curran to conclude that there was a pervasive legal attitude that death had a settled definition and was not controversial. It was a biological fact, with a broad consensus. Most of this analysis remained in the final Report.

But in the legal section, the Report included three closing paragraphs that were not found in Curran’s original draft, and that took a direction Curran did not originally go. Pushing Curran’s point about consensus, the Report essentially argued that legal notice could be won for a new definition if it reflected a new consensus. Acknowledging the frequent deference to the Black’s definition, the Report continued:

In this report, however, we suggest that responsible medical opinion is ready to adopt new criteria for pronouncing death to have occurred in an individual sustaining irreversible coma as a result of permanent brain damage. If this position is adopted by the medical community, it can form the basis for change in the current legal concept of death.⁹

Since prior cases had not ruled on the specific question the Committee was asking, the Committee chose to interpret widespread deference to Black’s as a reflection of the way courts generally approached the issue of the definition of death, rather than a commitment specifically to the heart/lung functioning enshrined in Black’s. The cases were used to conclude that when it came to defining death, courts were concerned with process (to acknowledge settled background consensus on this fact of biology as consensus developed), rather than specific content (to acknowledge only heart-lung definitions or concepts). Judges wanted to know if there was a clear consensus, not what that consensus was.

This emphasis on arguing for a new background consensus was different from Curran’s original idea. The background consensus, after all, was one of a heart-beating-and-breathing notion of death, so a change had to have a legal reason other than that some people had changed their minds. So, Curran’s initial advice for how to effect change was not to appeal to the authority of a new background consensus but to seek the recognition and leeway that courts often gave to the adaptation of legal definitions when faced with markedly changed circumstances, needs, and consequences.

Why did the Committee choose the change-of-consensus route, rather than the changed-circumstances approach that was initially proposed by its lawyer? Curran, for his part, referred in the Notes to growing legal commentary over the conflict between transplantation and existing statutes. He considered this a major part of the new needs and consequences for which brain death represented a response. Curran advised that broaching such conflicts would require more than redefining death in terms of brain death. Death definitions, however derived, could resolve only some legal problems of transplantation. The law left large holes that medical consensus on the definition of death—and legal recognition of the controlling authority of such consensus—would not fill:

The question before this committee cannot be simply to define brain death. This would not advance the cause of organ transplantation since it would not cope with the essential issue of when the surgical team is authorized … in removing a vital organ. It would not, of itself, answer the question of when there is justification (in whom?) to turn off the respirator. It also does not cope with the question of the reason for placing the person on the respirator in the first place. Separate issues of law are raised by all of these questions … Courts of law will not be satisfied to find that definitions of terms prepared for other purposes and under other assumptions are being used to prevent the saving of lives without preserving other important values. The conflicting values here may be the “vegetable existence” of one person as against the full life of another. The courts may well be willing to find greater value in saving the life of the one. A deeper analysis of the meaning of life seems to me necessary here. This deeper meaning would be concerned with the quality of life, not mere “existence,” which is the key term in the definitions in the law dictionaries … of the values which make human existence worthwhile and tolerable this side of the veil of tears.10

Curran invited the Committee to delve into a comprehensive agenda needed to advance and respond to a range of new medical practices, and to describe norms for justified treatment withdrawal more broadly.

This direction was not taken. In correspondence with Beecher following review of his initial draft, Curran acknowledged that the Committee’s consensus called for a more narrowed task, and thus that his draft “should not be included. It was prepared only as background.”¹¹ Rather than argue and comprehensively address the ways that meanings of life and imperatives for transplantation had changed—and, consequently, the ways that judicial logic ought to change as well—the Report would identify a change in medical logic and conditions of care that deserved judicial notice. Curran agreed his section would therefore focus on the more restricted purview likely settled on after the meeting, as outlined in this letter to Beecher:

(1) A complete and comprehensive set of guidelines for the determination of irreversible brain damage … (2) Guidelines and procedures for the handling of such persons on respirators and other extraordinary means of prolonging life. It may also be necessary for us to make suggestions concerning the “certifying” of death and the signing of death certificates.¹²

Curran’s draft of the legal section underwent the most revisions and was explicitly edited to argue that while the definition of irreversible coma itself couldn’t (and shouldn’t) resolve decisions about handling the body for the purposes of transplantation, the definition could in and of itself clarify a medical consensus on the nature and consequences of this type of coma.

Thus the Report concluded that “responsible medical opinion was ready to adopt new criteria for pronouncing death to have occurred in an individual sustaining irreversible coma.” This conclusion empowered physicians to “declare the person dead, and then turn off the respirator.”13 Curran’s initial advisement that the definition alone would not justify turning off the respirator was resisted in the final Report. The Report also described an assumed protective power of “shared responsibility,” despite Curran’s skepticism in this matter. Curran shared with Beecher a criticism of a paper by Schwab and Rosoff, that argued that shared responsibility by more than one physician when declaring brain death would offer legal protection.¹⁴ Curran wrote Beecher that “I really don’t see how they could ‘share’ his legal responsibility by consultation.”¹⁵ But the Report drew the opposite conclusion.

The final Report, in Curran’s eyes, could not have resolved the issues surrounding transplantation. It severely stretched, if not broke, much of his original advice and purposes. The Report’s editorial choices instead underscored a narrower focus on the issue of cessation of brain function and how this affected the ways in which doctors performed their recognized task of declaring death. In one of the most widely quoted sentences to appear in later newspaper descriptions, the Report emphasized that “no statutory change in the law should be necessary since the law treats this question essentially as one of fact determined by physicians.”¹⁶ The implications of this conclusion would follow in due course, but not in the Report or by the Committee. The Report more closely resembled the Schwab paper that Curran criticized. Schwab’s concern was not transplant, or the meaning of life, but generally recognizing that removing care from an artificially maintained corpse be seen for what it was, and not be mistaken as an action causing death.

Two aspects of legal opinion up until the late 1960s are worth reviewing here in some further detail, as they underscore the Committee’s purpose to describe the consequences of neurological death, rather than to write policy to facilitate transplant. The first aspect was how the Report’s conclusion about the significance of a new medical consensus compared with the body of case law that was selectively represented by Curran. The second was how other legal literature and opinion engaged these issues.

TIMING DEATH

The two simultaneous death cases explored by Curran were a very small sampling of a rather large volume of legal opinion that addressed how to determine the timing of death. Smith v. Smith was a relatively late addition to a thick fabric of judicial reasoning over disputes as to whether two deaths did or did not occur simultaneously. Resolution of such disputes over timing was often critical for the purposes of determining the disposition of wills and property. Curran correctly saw in Smith no ruling on the specific question of the validity of brain death. He and the Committee instead emphasized how the case spoke to the kinds of authority and evidence used by courts to determine the time of death. These cases, then, provide some access to how evidence and facts were used in legal proceedings to describe death before 1968.

When Hugh and Lucy Coleman Smith had a car accident while driving together on April 19, 1957, Hugh was considered dead at the scene, but Lucy remained “unconscious” in a coma for seventeen days until she “died.” Both had prepared wills that bequeathed their estates, and the executor functions of those estates, to each other. Petitioners asked the court to construct the wills since they died simultaneously. The court denied the request. The court’s opinion joined this case to a tradition of other cases dealing with the methods and burdens of proof necessary for a finding of simultaneous death. State and local courts frequently reviewed situations in which joint deaths of spouses or of parents with their children occurred and, further, in which the precise sequence of those deaths was often crucial to how a will and associated property were disposed. By the time the Smiths died, at least thirty-seven states had adopted some form of the Uniform Simultaneous Death Act of the National Conference of Commissioners on Uniform State Laws. This Act was developed to address such dilemmas, and significant case law had emerged to interpret those statutes.

Interpretations turned on how to define the burden of proof needed to show that deaths were simultaneous. State laws included various versions of language from the Uniform Act that approached the problem in a negative way. That is, if there was “no sufficient evidence” that the deaths were other than simultaneous, then they would be assumed to be simultaneous. Depending on how stringently this sufficient evidence standard was construed by courts, or redefined by some state legislatures, the burden for finding nonsimultaneity ranged between needing to prove simultaneity or, conversely, needing to assume and then disprove it. The opinion in Smith v. Smith clarified the sufficient evidence standard for proof in Arkansas. In doing so, this case and similar others provide a revealing look at judicial understanding of the practice and evidence for defining death.

A patient who was “breathing, though unconscious, is not dead,”17 argued the opinion. While Curran took pains to underscore such a conclusion as procedural—that is, as clarifying the process for determining simultaneity—the opinion revealed clear assumptions on the part of the judiciary about what constituted relevant evidence. The opinion in Smith v. Smith went to great lengths to cite case law that accepted the authority of “common sense” in making such determinations. The court found that it stretched such sense to say that Mrs. Smith, though without consciousness and thus “power to will,” could still be “breathing” yet at the same time be considered dead as of the onset of her unconsciousness, as petitioners claimed. The court characterized this claim as “a quite unusual and unique allegation.”¹⁸ The petitioners added to this confusion by originally arguing that before Mrs. Smith “died,” she had since “remained in a coma” and, further, that it would “probably be several months before she would be considered competent.” Thus, the petitioners argued, an appointed estate administrator was necessary until “she will be able … to manage her own affairs.”¹⁹ First she was described by her attorneys as temporarily incompetent but very much alive, while weeks later they argued that she had been dead all along. Common sense was indeed offended.

In a world of death before dying, a world that Curran and his colleagues were starting to create and inhabit, this construction was not surprising. But in case law and the very tangible and consequential sorts of problems it tried to order and characterize, it was. An indication of this breach in experience was that, in several places, the opinion described the patient as “breathing.” In a 1968 presentation at an American Neurological Association (ANA) meeting, Schwab described this court case and stated that Mrs. Smith was supported by a respirator.20 Given the timing of the ANA meeting (at which Schwab announced that the Ad Hoc Committee was still deliberating), it is most likely that Schwab’s knowledge of the case came from Curran and his Notes. However, Curran’s summary of the case did not suggest that the patient was on a respirator but instead used the word “breathing” as used in the opinion. The opinion itself made no such reference to a respirator, only to breathing. The question of which characterization was correct is as interesting as the confusion itself. If the patient was indeed on a respirator, then the opinion regarded this circumstance as no different than usual “breathing.” If not, then possibly Curran, or more likely Schwab, upon reading about the case, interpreted “breathing” to mean a respirator, or simply assumed that she required a respirator. “Breathing” contained newly murky meanings and projections that could be associated with no voluntary or independent action but still mark relevant, human, estate-owning life. On the other hand, breathing could be assumed to describe a spurious artifice in a dead body.

The judicial review of the contested wills of Otho and Lois Pierce in Schmitt vs Pierce was one of a host of cases further detailing this gap between case law and the experiences of some physicians as to the consequences of the persisting mechanics of the body. “The collision occurred about 1:05 p.m. on a cold day, about 10 miles south of Poplar Bluff on Highway 53.”²¹ This was the second marriage for both Pierces, and each had children with their prior spouse. They had each bequeathed portions of their estate to their respective children, as well as to each other. Who died first was important as it determined whose estate was transferred to whom. Parsing prior case law and the Uniform Act, the court reviewed the burden of evidence necessary to find that the deaths had not occurred simultaneously. What is particularly worth highlighting about this case and about many other simultaneity rulings was the evidence itself: “Link testified Mrs. Pierce was bleeding from the ears before they moved her, and he distinctly heard her moan or groan, when they moved her, Barker and Wilburn each … did not hear Mrs. Pierce moan or groan while moving her.”22 Link and Mrs. Metcalf saw blood pumping from her ears; Bridewell said it would “ooze”; some witnesses described a “trickle”; still others saw only “a little dry blood.” Barker recalled holding her head and stating, “ ‘she is gone,’ ” as Trooper Link stood over him, nodding his head in agreement. And yet, according to the case “Link did not remember this.” Clark said her eyes were open, “ ‘with a glare look’ ”; Mrs. Davis that they were closed; and Mr. Davis took the moderate path and said that they were “open a little bit; not too much.” Some saw regularly changing bloody air bubbles getting larger and smaller, and bursting about the nose; another did not observe Mrs. Pierce breathing but said that “she did gasp in a manner a person still breathing would.” Mr. Askew observed “some kind of movement, ‘enough to notice it.’ ” Mrs. Pierce’s pulse was not taken. Mr. Pierce had dried blood and no movement. He had no pulse in the car. “He was lying there lifeless.”²³

Expert medical testimony argued that all these movements described in Mrs. Pierce could have been present in a dead body as the result of collapsed blood vessels, expiration of air by collapsing lungs, and the final twitches of muscles. The mélange of disorganized gurglings, oozings, and movements had to be organized coherently by the court. As with the Smiths’ deaths and numerous other cases, this kind of information was sifted to balance the legal status of “common sense” on the question of defining death on the one hand, and the burden of sufficiency of evidence to negate simultaneity on the other. Expert medical testimony in this particular case took a back seat to the “common sense” of movement and blood. Despite inconsistent and conflicting renderings, blood was there, physically moving, as Black’s quoted definition seemed to emphasize. The opinion concluded that “the trial court could find plaintiffs met the burden resting upon them by substantial evidence of survivorship.”²⁴

The status of background expert opinion in these cases seemed far less dominant or certain than Curran and the Committee concluded it was. As one court found, whether someone appeared dead or alive was “something within the common knowledge of mankind.” Expert testimony insisted on the need for a stethoscope to determine death, since lack of movement or variable pulse or sounds from a body could be misleading. But that insistence did not sway the court’s confidence in a lay witness’s conclusions, formed from visual impression at a distance by lantern-light and “based on his having previously seen dead people.”25 There was, as Curran stated, a general background consensus as to what death was. But whatever deference judges gave to “background consensus,” that consensus was not commonly attributed to physicians or their expertise. The Black’s definition, while frequently quoted, was rarely engaged as a definition, as this definition itself was vague and contradictory, and was used in different ways. With a clarity reminiscent of the well known “duck” of obscenity, the judiciary in this case did not need to establish a formal definition or attempt to parse a definition out in order to recognize death when they saw it.

When courts did turn to physicians, they often did so in ways that reinforced the semiotics of movement, flow, and blood. In one case, a couple was run over by a train. Physicians argued that the primary importance of blood flow and movement led to the conclusion that wife survived husband because a witness saw spurts of blood from the site of her decapitated head, but not from his more intact body. Her body was not dead as long as the heart beat, even though her head was completely severed.²⁶ This interpretation of physical signs could locate and justify, in an apparent one-second difference between two deaths, space enough for the transfer of an estate.²⁷ A child’s gurglings for a one- to two-minute period right after birth met the burden to prove its survivorship.²⁸ A feeling of warmth to the touch and some minutes of persistent breathing could satisfy a burden of proof for survivorship of one body beyond that of a cool fellow victim in a house fire, despite that fact that the latter received artificial respiration.²⁹

While there seemed to be a backdrop of consensus, when death was revealed in its particulars in these legal rulings it was shown to be tightly connected to the whirring and color of the body. This backdrop of consensus was not founded in consciousness, or even in actual confirmed heart or lung functioning. This is not to say that the issue of consciousness wasn’t debated. A draft of the Uniform Simultaneous Death Act reportedly specified that “a priority of time shall not be deemed to be sufficiently evidenced unless [during] such an interval of time between the deaths is shown to have elapsed … the survivor had a clear period of consciousness.”30 But this provision—which potentially introduced the idea of the capacity for consciousness as a factor in timing of death—was not adopted as standard. Physical movement and tangible signs, accessible to “the common man” and consistent with centuries of practice in listening and looking for movement, were the preferred tools.

Quite different from this standard, and more commonly used on hospital wards, was an alternative understanding of the body—one that instead highlighted the functions of its brain and its capacity for consciousness. The differences between these approaches to understanding life or death lay in experiences more than in clear descriptions or concepts. As concepts, these approaches were much more easily reconciled. But as experiences, the emotional, tactile, and practical tasks presented by each were farther apart. One experience was physical, palpable, textured, and colored, closely identifying the superficial appearances of the mangled body with its humanity. The other was in some ways more distant from the emotion and meaning stirred by the physical changes and dynamism of the body. But in other ways, this second type of experience provided a more penetrating way to search for possible awareness, communication, and engagement—to search, in essence, for deeper and less overt evidences of physiological capacity using specific planned provocations of the nervous system in search of a patterned response.

These were, and are, differences not readily reduced to definition. The concept of either brain death or of a circulatory, heart/lung death made sense first depending upon the adequacy with which it joined an experience of the body to relevant circumstances. Brain death became a workable and “obvious” concept within and because of the conditions of death before dying. Under these conditions death was comprehensible as a dynamic category that could be suspended, considered. The movement from person to corpse became more elaborately negotiated and managed, such that the presence of death preceded dying.

New hospital practices meant changes in the experienced signs of life and death, signs that would move death determination further away from the view of the “common man.” On several occasions Beecher noted that any change in consensus required broader social agreement and confidence. In subsequent writings and talks, he stressed how physician consensus on defining death as brain death required public acceptance in order to work and be legitimate. Even if courts were to acknowledge this new practice, it might avoid the need for statute but not the need for broad consensus. The Report offered criteria around which to build that consensus. And in law journals and proliferating panels and forums, there are some signs of just such a point of view beginning to appear among legal scholars in the 1950s and 1960s. In part as a response to address the new and growing gap between the medical and case law experiences of the dying body, these ideas—that death criteria were a matter of physician judgment, not law, and that brain death provided the right medical criterion—enjoyed support. When Curran wrote his Notes, a discernible legal literature pursued that goal.

LEGAL LITERATURE

Curran’s Notes appeared at the end of at least a decade of writing in law review journals about whether physicians could transplant organs without being in violation of the law or vulnerable to suit. The tenuous legal position of transplantation—which according to critics was the reason physicians rushed into a definition of brain death—alarmed legal scholars. Soon after Joseph Murray completed the first human kidney transplant in 1954, a study in the University of Detroit Law Journal went in search of the legal basis that permitted a family member or any conscious individual to authorize the use of organs for transplant.31 It found no such basis. Even so, by that time no instance of transplant had resulted in proceedings, in an American court, to charge a physician with battery, murder, or violation of rules regarding the handling of a corpse. Nor did any occur up to the final draft of the Uniform Anatomical Gift Act by the Commissioners on Uniform State Laws in July of 1968. Nonetheless, legal observers and advocates found that while the common law and statute could perhaps be read as providing justification for kin-approved or willed use of organs for transplant at the time of death, the legal basis for such authorization was not clear.

The Detroit paper mapped out an analysis and list of precedents that would be regularly referred to over the next decade in reviews of the legal environment for transplant. These included judicial rulings on the prerogatives of family members with respect to disposal of the body of a deceased person, limits on autopsy, and evolving statutes and case law regarding the ability of a person or family to permit use of the body for scientific purposes (usually for dissection and the teaching of anatomy). What emerged from these analyses was a claim to a somewhat uniquely American, common law, “quasi-property” interest that a family had in the dead body, thus granting family members some prerogative around its disposal, the means of which could also be established through a will. This diverged from British common law deference to ecclesiastical interest in the body that curtailed both testamentary prerogatives over the body and rights of the family. Legal scholarship during the following decade continued to highlight the ways in which the law was unprepared to regulate, let alone permit, transplantation. A perceived risk of criminal prosecution of transplant surgeons was attributed to laws such as those that prohibited unauthorized dissection of a corpse. Some lawyers searched the dense history of cases regarding the handling of corpses for a possible common law grounding that would allow people to will or instruct that upon death their body part(s) could be used for transplant or, similarly, to sanction next of kin to do likewise on their behalf.32 The latter authorization had perhaps the least firm justification, as it was based in contested and complex rules about familial possession of the body.³³

With the exception of the few jurisdictions which have legislation concerning this problem [as of then, 1956, four states], the matter is one of the common law, which unfortunately affords no clear cut answer to the legal effect of a donation of tissue … This nebulous area of the law needs clarification. The reasonable wishes of the deceased concerning the final disposition of his body should be paramount to all other interests … The same interest in medical and scientific progress which made possible the anatomical laws augurs social approval of the donation of one’s body for the purposes of research or transplantation.34

Thus, in 1955 “it would seem fair to conclude that a person at the present time in the United States probably has the right to control the disposition of his body after death as long as no public policy is contravened, and it would seem to follow that an individual in his lifetime can give permission for the taking of tissue from his body after death.”³⁵

Commonly cited justifications for this conclusion in subsequent law review treatments of the topic rested on nineteenth-century adjudication of willed disposal of corpses; in particular, cases such as Pettigrew v. Pettigrew and Pierce v. Swan Point Cemetery reached back to the nineteenth century.³⁶ In the latter, it was argued that:

Although, as we have said, the body is not property in the usually recognized sense of the word, yet we may consider it as a sort of quasi property, to which certain persons may have rights, as they have duties to perform towards it arising out of our common humanity. But the person having charge of it cannot be considered as the owner of it in any sense whatever; he holds it only as a sacred trust for the benefit of all who may from family or friendship have an interest in it.

This case, and this particular section of it, was frequently cited as authority for extending numerous rights usually exercised over other property to include rights over a dead body. These rights included the ability to recover damages for mutilation and unauthorized disposal, or the authority to follow pre-decedent wishes regarding use.³⁷ But Pierce actually restricted the prerogatives of a surviving spouse over the corpse, as it emphasized the ways in which the corpse was a quasi-property, and thus recognized multiple claims at stake. Earlier in the opinion, the court described this “quasi property” right as the following:

That there is no right of property in a dead body … may well be admitted … [However]. … There is a duty imposed by the universal feelings of mankind to be discharged by some one towards the dead; a duty on the part of others to abstain from violation; it may therefore be considered as a sort of a quasi property.38

Specifically the court ruled here that a wife could not disinter her husband and relocate his remains against the daughter’s wishes, as that seemed “improper conduct.” The following one hundred years of jurisprudence in the United States regularly reexamined this tension between individual and community interest in the corpse and, over time, inched further toward regarding the corpse as an extension of the previously living person. Yet these cases seemed to provide particularly slim legal footing for families to secure the ability to give permission for organ removal for the purposes of transplant. The inference that legal difficulties would be avoided with familial consent—since such consent removed the only ones (i.e., family members of the deceased) with legal standing to challenge the procedure—was hardly firm ground.

The perception that case law was probably not hostile, but was still dangerously nonspecific with respect to lawful disposition of the body for transplantation purposes, persisted through the 1960s. Physicians became more concerned as increasing numbers of legal scholars wrote of these persistent gaps in the law. The CIBA Foundation–sponsored symposium on Ethics in Medical Progress in March of 1966 was an unprecedented gathering of individuals involved in transplantation worldwide, who met to discuss the legal and ethical aspects of the practice. It is, and was, often quoted for revealing how practices that resembled the brain death criteria were already followed in several medical centers in Europe. Its published deliberations appeared more preoccupied, though, with whether transplant was in fact legal in any jurisdiction, either in Europe or the United States. That doubt was primarily cast by existing law, not about death-defining, but about the disposition, dissection, and bequeathing of bodies.39

One active CIBA participant, law professor and surgeon Carl E. Wasmuth, continued to try to mine possible sources for a legal ability to transplant from common law and statute on burial and autopsies. Concluding that removal of organs for autopsy or scientific study required consent “by the person or persons who have the right of burial,” it seemed logical to take the next step: “The right to remove organs for the purposes of transplantation into another person, therefore, depends upon the consent for the removal of such organs by the person who possesses the right of burial.”⁴⁰ But even if this inductive leap would satisfy a judge, it was inadequate to the circumstances of transplantation. Actually relying on burial rights or medical examiner autopsy disposal prerogatives would involve decision making that was too slow for the time frame needed for removing tissues for transplant. While states passed statutes establishing methods for families and individuals to authorize tissue donation for the specific purpose of transplantation, by the time the Harvard Committee met the legal climate was still wanting, for reasons similar to those described in 1955. Alfred and Blair Sadler, who had been consultants in the effort by the National Conference of Commissioners on Uniform State Laws to draft the Uniform Anatomical Gift Act, reviewed much of the same legal precedent explored in the prior decade and found similarly that:

The paucity of cases dealing with donation of tissue, by either the decedent or next of kin, and the conflicting judicial treatment of the questions dealing with the place and manner of burial, provide little assurance that an individual has the authority to control the disposition of his body.⁴¹

Legal commentators closely examining potential and longstanding legal impediments to transplant generally acceded to medical authority over new criteria but also to the view that such a definition was hardly sufficient to address obstacles to transplantation that required the Uniform Anatomical Gift Act and other statutory changes to fill in where the common law on autopsies and cadavers had not. And as with concerns voiced by Curran and Beecher these links between brain death and transplant were also often made in order to police transplantation practice. The widely publicized case of kidneys retrieved from a brain-injured woman at the Karolinska Institute by Swedish surgeon Clarence Crafoord, for example, involved a patient with spontaneous breathing and circulation despite presumably irreparable loss of consciousness. Without clear medical consensus on stricter criteria, Wasmuth and others feared that dangerous unpredictability would reign in the use or abuse of medical technology, and they made reference to Nazi practices to underscore the point.

“We should distinguish,” Keith Simpson, Professor of Forensic Medicine at Guy’s Hospital in London, argued before the 1966 Fourth International Meeting of Forensic Medicine, “between being alive and a live state that can be maintained artificially … we can say that death has occurred if the brain is no longer in a living state, even if it can be maintained as living tissue by artificial means.”43 Despite assertions like this, the law as yet did not recognize this vocabulary of death before dying wherein “being alive” or in an “alive state,” or being “no longer in a living state” but having “a living tissue” were key determinants.

Increasingly, however, other legal scholars advocated for this new sensibility and for physicians to standardize reliable criteria to bring the law more in line with this reality:

With these illustrations, it becomes evident that death is no longer determined by the lack of respiration or the lack of a heartbeat or the lack of circulation. Death is determined by several factors but primarily by the state of unconsciousness. When the chances of recovery of consciousness have been totally eliminated, brain death has occurred … The question then is, “When is the brain so damaged that consciousness cannot be regained?” Medicine and the law then must define it upon medical principles that have been well established … The definition of death must fit within the modern concept of life as it is defined by the physiologist.⁴⁴

This advocacy took place not only in the context of examining legal hurdles to transplantation but also in meeting broader reasons for a revised definition of death. As one law review article observed, a clear, revised definition of death was necessary for a variety of legal purposes, including assuring patients of the restraints that would be placed on physicians against unwarrantedly using their organs, and resolving legal ambiguities caused by the imprecision of the cardiopulmonary definition of death. It was heart-lung death that was too legally vague, imprecise, and thus dangerous. Pacemakers, cardiac resuscitation, and life support all created legal quagmires if cardiopulmonary death remained as the definition of death itself:

If we continue to hold fast to the present legal definition of death as a cessation of perceptible heartbeat and respiration, in many instances we can not only ask when a man died but how many times as well. The current definition presents many problems to both the legal and the medical world, for because of advances in medicine, it is no longer an event taking place at a precise time but rather is often a continuing event.45

Examining much of the same evidence as Curran, others drew less circumscribed conclusions than he did. Jeffrey C. Baker reviewed nearly all of the same simultaneous death cases, along with the 1963 Newcastle inquest, to conclude, as did the Committee, that the law would defer to physician criteria. But he went further, using these cases to show how awkward and problematic legal goals were—such as determination of the time or cause of death—in a world of life support, a world of death before dying. A revised legal understanding of death was needed to correct both “the disparity between medical and legal definitions of death” and to remedy the law’s failure to address “the uncertainty that exists in present legal doctrine concerning the fact of death and when death occurs. In the absence of any case or statute in point, the law must then turn to medicine.”⁴⁶ After reviewing medical evidence regarding the necessity of brain function for consciousness and autonomous life, along with the posited ability of EEG to assess brain activity, Baker concluded that “there is probably no malpractice liability if EEG recording time periods used are justified medically.”⁴⁷ These features of medical practice, coupled with the limited guidance from case law, provided an argument for standardized consensus over new criteria for death. It was medicine’s task to provide the details. Baker felt Schwab’s criteria were conservative and actually a likely obstacle to transplantation. He mentioned other approaches—such as that of Peter C. Kellaway, Director of EEG at Houston’s Methodist Hospital—which relied on EEG readings only. In contrast, Schwab, and eventually the Committee, required the absence of specific reflexes, responsiveness, and spontaneous respiratory activity.⁴⁸

Starting over a decade before brain death appeared, then, a number of legal scholars had already described in similar ways the need for the law to catch up with changes in medical practices in terms of defining death. These predecessors also argued that brain death facilitated but did not solve the legal minefield that needed to be cleared for transplant while also providing other needed legal remedies. At a conference sponsored by Villanova University School of Law soon before the Report appeared, brain death was understood as a corrective so that the law could be more relevant to the challenges faced in hospitals. Clear consensus on the clinical description of brain death was needed to solve pressing problems above and beyond transplantation, such as the need to distinguish between ordinary and extraordinary treatment.49

Along these lines, George P. Fletcher, then on the law faculty at the University of Washington, published in 1967 a lengthy and widely quoted paper on the enduring issue of the differences between the omission, commission, and interruption of treatment. Even though no claims against a physician for removing respirator support had occurred up until then, it had been a common opinion that removal of treatment opened up physicians to charges of homicide.⁵⁰ Fletcher argued that turning off the respirator was not, in a legal-liability sense, a removal but an omission. He based this opinion “not so much on policy and analysis, as on acceptance of the received premises of the law of homicide.”⁵¹ Within the logic of homicide adjudication, such a removal of treatment by a physician would fall into the category of an omission rather than an act. This being established, the legal standard of defensible omissions would then hold sway in judging physician conduct. The standard was that in order to be legally permissible, the omitted behavior had to fall within the standard of care expected of a doctor toward a patient: “If it is an act, the relationship between the doctor and patient is [in the eyes of the law] irrelevant. If it is an omission, it is all controlling.” This is where brain death came in. In this legal framework, brain death was a needed statement of professional care standards within which omissions were distinct from offensive, actively committed, acts: “The conclusion of our circular journey is that doctors are in a position to fashion their own law to deal with cases of prolongation of life. By establishing customary standards, they may determine the expectations of their patients and thus regulate the understanding and the relationship between doctor and patient.”52

This was essentially the conclusion of the Committee itself. Legal journals and conferences in the years before the Report argued that brain death could close existing gaps in the law. It would appropriately and primarily address complications, presented by new technologies, that clouded consensus as to the limits and expectations of care for the seriously ill and that resonated within the familiar categories of omissions, commissions, and extraordinariness. It would not solve the legal impediments to transplant, for which Schwab’s criteria were thought too narrow a response anyway. However representative this brief sampling of legal consensus of the time may be, it at a minimum captures the presence of a line of legal scholarly thinking about authority to redefine death and the ways in which this thinking was part of broader efforts around evidence-based standard-setting that mirrored the Committee’s. Historical characterization of the Committee as an almost rogue operation of medical overreach needs to be revised, and the potential value of medical calculus and contexted knowledge reconsidered in historical context.

These examples also put into perspective later criticism of the Report for defining as “death” what could have simply been a good set of conditions for withdrawal of care. Such a position may not have had the maturity of acceptance and legal justification to qualify as a credible position to take at the time—even leaving aside the very different sorts of reasons that did lead Beecher, Schwab, and colleagues to see brain death as more than just a compelling cause for withdrawal but as death itself.

CASE LAW RESPONDS

The conclusions of the legal section of the Committee Report thus mirrored ongoing discussions in at least some parts of the legal literature, though not yet the case law that Curran cited. Courts and cases would soon follow that lead. Note, for example, a survivorship case appearing soon before the Report appeared. In a seemingly familiar narrative of possible simultaneous deaths, a couple in their second marriage—each with distinct heirs from their first—were found dead after a head-on car collision. A slumped and silent husband was compared to his unresponsive wife, who bled from her ears and in whom a bystander asserted he could feel a pulse, albeit one incompatible with survival as it was timed at five beats over one and a half minutes. Groans were audible, unclearly purposeful, and perhaps indicated the physical mechanics of demise. But other signs vied for relevance with these movements and sounds when a parade of experts juggled autopsy and witness observations:

As indicated above, there was almost no conflict among all of the experts concerning the cause of Max’s death and that he died almost instantaneously. As to Patricia, appellants’ experts surmised that she also died instantaneously of an injury to her brainstem or a crushed spinal cord, basing their opinions on the condition of her pupils and the mediastinal hemorrhage. However, they admitted there was nothing in the testimony of the lay witnesses or the autopsy reports that was inconsistent with Patricia’s survival and breathing for 10–20 minutes after the impact … Respondent’s medical experts, basing their opinions chiefly on the uncontroverted heavy bleeding … surmised that Patricia did not suffer a brain stem severance or spinal cord injury, but died more slowly from a severe basal skull fracture.53

The court felt that the lower Superior Court’s ruling in favor of the respondent was a reasonable one in light of the expert disagreement, but survivorship case law here includes inference and expanded literacy about brain function in its weighing of sufficiency of evidence for simultaneity—a legal viewpoint that would only grow.

Forward to 1987, when Cecil A. Hughes shot and killed his wife Suzanne Duperier Hughes and then turned the gun on himself with a fatal shot to the head. Suzanne was deemed to have lived longer based on the testimony of Suzanne’s (not Cecil’s) son. The son testified that after he found a motionless Cecil, Suzanne appeared to take some breaths for ten to twenty minutes after the shots. Because of this finding, their respective estates went to Suzanne and her heirs. Cecil’s heirs challenged this finding in the Court of Appeals of Missouri. Much of the opinion reads like a 1950s survivorship case—indeed, many such cases are cited therein—with review of detailed testimony in the circuit court regarding who was breathing or bleeding. But the court paused as follows:

One of the problems inherent in this case is that the development of medical technology has complicated the definition of that condition called “death.” Many of the older precedents simply accepted the definition found in Black’s Law Dictionary, i.e., “The cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc.” Nowadays, the development of “life-support systems” and the increasing use of human organ transplants have made the definition of “death” more complex.54

The appeal was denied, with the court finding it reasonable that the initial ruling not only found persistent life in Suzanne’s movement but also that in Cecil’s wound it found instant death through injury to the brain. Quickly, many courts started to sift through the minute details of brain death criteria, just as they had split hairs between gurglings and groans. In an example of how life can be tragically stranger than fiction, the Illinois Appellate Court heard an appeal of a simultaneous death ruling that involved spouses who collapsed together at home after taking Tylenol that was later discovered to have been laced with cyanide as part of a broader distribution of poisoned Tylenol that captured wide public attention at the time. The reason the couple sought pain relief was because they were distraught over the collapse and death that same day of the husband’s brother—a death later found out to have been the result of exposure to the same tainted medication.

Wheeled into the emergency room, Stanley Janus died soon after his arrival there, as the presence of electrical heart activity could not be translated into effective heart movement and blood pressure, and he was declared dead some hours later. His wife Theresa never regained consciousness, and vying expert testimony disagreed as to whether she was brain dead at admission (she had no discernible heart activity on admission, but her heart was able to be revived and she was placed on a respirator) or two days later when death was specifically “declared.” Expert witnesses disputed whether an EEG tracing showed “minimal electrical activity” or merely artifact in a portion of her brain, or whether one pupil briefly responded to light, as a nurse noted at 2:30 one morning.55 While the court felt enough uncertainty to allow the finding that Theresa survived her husband, the world of whirring bodies was receding to one of neurological detail.

The narrow window for timing death as an event, and not a process—so crucial to the adjudication of simultaneity disputes and so central to the criticism and discomfort over Beecher’s “arbitrariness”—opened up widely. Changes in the early 1990s to The Uniform Simultaneous Death Act departed from decades of adherence to an assumption of simultaneity simply in the absence of “contrary evidence” or “sufficient evidence.” The suspended, prolonged parsing of death from dying was reflected in revisions requiring survival of 120 hours or more, as well as “clear and convincing evidence” of such survival in order to defy simultaneity.⁵⁶

Post-Report survivorship cases departed from the blood and breathing concreteness of Black’s upon which they had previously relied. According to a 1977 case:

Moreover, although Black’s Law Dictionary does not have the force of statute or even a judicial decision, we accept its definition of death as “cessation of life” or “ceasing to exist.” But its assertion that death is defined by physicians in a certain way does not freeze the medical definition for all time, and its references to respiration and pulsation must be taken to refer to spontaneous rather than artificially supported functions.⁵⁷

In 1960s legal literature, and in the assessment and legal advice of the Committee’s distinguished scholar, legal barriers to transplantation were problems worth solving, but brain death was no panacea. Curran made clear the limited value of brain death to solving obstacles to transplant, and the Committee restricted its purview to where at least some early legal literature on this topic was urging it to go. From this medical-legal perspective, then, the Committee’s work is hard to characterize as a backdoor effort to make an experimental procedure normal, or to primarily advocate for transplant, let alone avoid legal scrutiny or protections over transplantation.

This background more interestingly opens up for consideration the degree to which brain death was aligned with a very different historical narrative: the use of medically derived knowledge and standards to stabilize legal frameworks. In the conversations and cross-talk between case law, physicians, and legal scholars, the meanings or concepts of death or duties that would later engage brain death critics seemed peripheral to the attention instead given to the contexts of the work and outcomes of medical care itself. The Committee was not alone in how it identified and predicted changes in case law, or in how it sought to close the gap between the experience of newer capabilities and older practices by making clear criteria for deciding when the brain was dead.

The neurological criteria themselves now get our attention. As with Beecher’s justification, the Harvard definition emerged from a broader and deeper set of practices and historical developments than have generally been attributed to it. The story of the criteria similarly challenges assumptions about the relative importance of ethical concepts—as opposed to complex medical facts themselves—as the key tools for describing values and establishing consensus over hard choices in medicine.

NOTES

1. William Curran, “Some Notes on the Legal Meaning of Death,” photocopy manuscript, Box 11, Folder 18, Beecher Papers.

2. M. Martin Halley and William Harvey, “On an interdisciplinary solution to the legal-medicine definitional dilemma in death,” Indiana Legal Forum 2, no. 69 (1968): 219–37, 237.

3. Nikolas Rose, Joelle M. Abi-Rached, Neuro: The new brain sciences and the management of the mind (Princeton: Princeton University Press, 2013).

4. Ian A. Burney, Bodies of Evidence: Medicine and the Politics of the English Inquest, 1830–1926 (Baltimore: Johns Hopkins University Press, 2000).

5. Curran, “Some Notes on the Legal Meaning of Death,” 2. He specifically cited Thomas v. Anderson (96 Cal. App. 2d 371, 211 P. 2d, 478), and Smith v. Smith (229 Ark. 579, 317 S.W. 2d, 275), cases questioning the simultaneity versus sequential timing of deaths of family members in fatal accidents, and a British coroner’s inquest in Newcastle in 1963. A good account of the latter case is in Medicine, Science and Law 4 (1964): 77. The inquest involved the question of whether a kidney donor was dead when his kidneys were removed.

6. Interviews with the author, Fred Plum, April 20, 1998; C. Miller Fisher, December 9, 1996. See also interview with Vincent Perlo, July 30, 1991, and MGH Medicine Chair. Perlo was a fellow of Fisher’s and closely involved in the latter’s efforts to establish an examination of the comatose patient useful in advising when to end treatment.

7. Smith v. Smith, 317 SW2d, 275, 276.

8. Curran, “Some Notes on the Legal Meaning of Death,” 1. Curran is quoting from the Fourth Edition, 488.

9. Ad Hoc Committee, “A Definition of Irreversible Coma,” 339.

10. Curran, “Some Notes on the Legal Meaning of Death,” 8–9.

11. Curran to Beecher, May 8, 1968, Box 11, Folder 17, Beecher Papers.

12. Curran to Beecher, April 22, 1968, Box 11, Folder 24, Beecher Papers.

13. Ad Hoc Committee, “A Definition of Irreversible Coma,” 339.

14. Sidney D. Rosoff and Robert S. Schwab, “The EEG in Establishing Brain Death. A 10-Year Report with Criteria and Legal Safeguards in 50 States,” manuscript copy, Abstract, American Electroencephalographic Society presentation, Atlantic City, NJ, June 8, 1967. I am grateful to Dr. Schwab’s surviving widow, Joan Schwab, for access to and permission to use this copy. This presentation is discussed further in Chapter Four.

15. Curran to Beecher, April 22, 1968, Beecher Papers, 2.

16. Ad Hoc Committee, “A Definition of Irreversible Coma,” 339.

17. Ibid., 276.

18. Ibid., 277.

19. Ibid., 278.

20. J. F. Alderete, F. R. Jeri, E. P. Richardson Jr., S. Sament, R. S. Schwab, and R. R. Young, “Irreversible coma: A clinical electroencephalographic and neuropathological study,” Transactions of the American Neurological Association 93 (1968): 16–20. See discussion of this paper in Chapter Five.

21. Schmitt v. Pierce 344 SW 2d, 120, 124.

22. Ibid., 125.

23. Ibid., 126–127.

24. Ibid., 133.

25. Prudential Insurance Co. of America v. Spain, 90 NE 2d, 256, 259, 258.

26. Gray v. Sawyer, 247 SW2d, 496. For similar reasoning privileging mechanical movement to brain function, see the 1938 case Vaegermast v. Hess, 280 NW, 641.

27. In re Di Bella’s Estate, 199 Misc. 847, 100 NYS 2d, 763, 777.

28. Taylor v. Cawood 211 SW, 47, 51.

29. Salingman’s Estate 13 Pa Dist. & Co. R. 2d, 432–34.

30. Glover v. Davis.

31. Allan D. Vestal, Rodman E. Taber and W. J. Shoemaker, “Medico-legal aspects of tissue homotransplantation,” University of Detroit Law Journal 18, no. 3 (1955): 171–94.

32. Ibid., 185.

33. Again, much of the justification for this view was in nineteenth-century cases. See Meagher v. Driscoll, 99 Mass, 281 (1868); Larsen v. Chase 47 Minn, 307, 301, 50 NW, 238, 239 (1891).

34. Marvin I. Barish, “The law of testamentary disposition—A legal barrier to medical advance!”, Temple Law Quarterly 30 (1956): 40–46, 45–46.

35. Vestal, Taber, and Shoemaker, “Medico-legal aspects of tissue homotransplantation,” 187.

36. Pettigrew v. Pettigrew, 207 Pa 313, 56 Atl 878, 64 LRA 179 (1904) and Pierce v. Swan Point Cemetery, 10 RI 227 (1872).

37. In O’Donnell v. Slack 123 Calif. 285 (1899) it was declared: “It is recognized that the individual has a sufficient proprietary interest in his own body after his death to be able to make a valid and binding testamentary disposition of it.” This was a case whereby a man expressed to his wife his wish to be buried in Ireland, where he was born. The estate administrator balked at funding such a trip for the body and his widow, but was ordered by a court to do so. For summaries of much of the case law behind finding pre-decedent disposal rights and the extent of the property right to care for a corpse, see the 1905 Koerber v. Patek, 102 NW 40 and the 1950 Kirsey v. Jernigan 17 ALR 2d 766.

38. Pierce v. Swan Point Cemetery, 238.

39. G. E. W. Wolstenholme and Maeve O’Connor, eds., CIBA Foundation Symposium—Ethics in Medical Progress: With Special Reference to Transplantation (Boston: Little, Brown, and Co., 1966).

40. Carl E. Wasmuth and Bruce H. Stewart, “Medical and legal aspects of human organ transplantation,” Cleveland-Marshall Law Review, 442–71, 464.

41. Alfred M. Sadler Jr. and Blair L. Sadler, “Transplantation and the law: The need for organized sensitivity,” The Georgetown Law Journal 57, no. 5 (1968): 5–54, 13.

42. Ibid., 14.

43. Quoted by Ayd in his manuscript “What is Death,” 5, for the American Medical Association Second National Congress on Medical Ethics, Chicago, October 5, 1968, and in O. Ruth Russel, Freedom to Die: Moral and Legal Aspects of Euthanasia (New York: Human Sciences Press, 1975).

44. Wasmuth and Stewart, “Medical and legal aspects of human organ transplantation,” 166.

45. Betty Wolf, “The need for a redefinition of death,” Chicago-Kent Law Review 45, no. 2 (1968): 202–206, 203.

46. Jeffrey C. Baker, “Liability and the heart transplant,” Houston Law Review 6 (1968): 85–112, 85, 91.

47. Ibid., 96.

48. Schwab also commented on how persistent brain death and life support for more than twenty-four hours significantly compromised organs for transplant. Yet, both the Report and Schwab recommended a minimum wait of twenty-four hours between serial EEGs.

49. “The medical, moral and legal implications of recent medical advances: A symposium,” Villanova Law Review 13 (Summer 1968): 732–92.

50. See for example the remarks of Charles Orth, former Assistant State’s Attorney: “The law states that if there is a duty to act, an omission to act is the same as a positive act … If there were a discontinuance of the efforts to prolong life on the part of the doctor, knowing that the discontinuance of thus effort would result in death, then he is guilty of murder in the first degree.” Charles E. Orth Jr., “Symposium on Euthanasia,” Medico-Legal Committee of the Medical and Chirurgical Faculty, the Bar Association of Baltimore City and the Maryland State Bar, Maryland State MJ 2 (March 1953): 120–40.

51. George P. Fletcher, “Prolonging life,” Washington Law Review 42 (1967): 999–1016, 1012.

52. Ibid., 1015–16. For a similar argument see George P. Fletcher, “Legal aspects of the decision not to prolong life,” JAMA 203, no. 1 (Jan. 1, 1968): 65–68.

53. “Estate of Max Schmidt,” 67 Cal. Rptr. 847, June 11, 1968, 853.

54. “In the Matter of the Estate of Cecil A. Hughes,” 735 S.W. 2d 787 (1987), 790.

55. Janus v. Tarasewicz, 482 N.E. 2d, 418 (1985).

56. “Uniform Simultaneous Death Act,” Uniform Laws Annotated-Volume 8B Estate, Probate and Related Laws with Annotations from State and Federal Courts (West Group, 2001): 147–58.