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Can We Handle the Truth? Legal Fictions in the Determination of Death

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Can We Handle the Truth? Legal Fictions in the Determination of Death

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Advances in life-saving technologies in the past few decades have
challenged our traditional understandings of death. People can be maintained
on life-support even after permanently losing the ability to breathe
spontaneously and remaining unconscious and unable to interact meaningfully
with others. In part because this group of people could help fulfill the growing
need for organ donation, there has been a great deal of pressure on the way we
determine death. The determination of death has been modified from the old
way of understanding death as occurring when a person stops breathing, her
heart stops beating, and she is cold to the touch. Today, physicians determine
death by relying on a diagnosis of total brain failure or by waiting a short while
after circulation stops. Evidence has emerged that the conceptual bases for these
approaches to determining death are fundamentally flawed and depart
substantially from our biological and common-sense understandings of death.
We argue that the current approach to determining death consists of two
different types of unacknowledged legal fictions. These legal fictions were
developed for practices that are largely ethically legitimate but need to be
reconciled with the law. However, the considerable debate over the
determination of death in the medical and scientific literature has not informed
the public of the fact that our current determinations of death do not adequately
establish that a person has died. It seems unlikely that this information can
remain hidden for long. Given the instability of the status quo and the difficulty
of making the substantial legal changes required by complete transparency, we
argue for a second-best policy solution of acknowledging the legal fictions involved in determining death. This move in the direction of greater
transparency may someday result in allowing us to face squarely these issues
and effect the legal changes necessary to permit ethically appropriate vital organ
transplantation. Finally, this paper also provides the beginnings of a taxonomy
of legal fictions, concluding that a more systematic theoretical treatment of legal
fictions is warranted to understand their advantages and disadvantages across
a variety of legal domains.

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Can We Handle the Truth? Legal Fictions in the Determination of Death

Additional Information

Author Seema K. Shah & Franklin G. Miller
Number 4
Volume 36
Publication AJLM
Journal Year 2010

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