Proposing a Cortical Criteria for Determining Death: A Legal Inquiry

Author:Lauren Harper
Position:BA (University of King's College), BCL/LLB Candidate, McGill University Faculty of Law
Pages:97-123
© 2016 Lauren Harper and Dublin University Law Society
PROPOSING A CORTICAL CRITERIA FOR
DETERMINING DEATH: A LEGAL INQUIRY
LAUREN HARPER*
To die, to sleep
To sleep perchance to dream: ay, there's the rub,
For in that sleep of death what dreams may come
When we have shuffled off this mortal coil,
Must give us pause.
William Shakespeare, Hamlet
Introduction
What is death? Or at least how do we determine it? Is it the final act of
sloughing off the mortal coil as described by Hamlet? Lawyers, ethicists,
philosophers, physicians and Shakespeare alike have struggled with this
seemingly simple question. Although we are no closer to understanding
“what dreams may come” in the afterlife, the medical and legal communities
have defined the criteria necessary for determining when death occurs. The
definition of death though, is not static. Today we determine death using
somatic, cardiac and neurologic criteria.1 However, with the continued
progress in medical and scientific research, new criteria for determining
death have become necessary.
This article will examine the determination of brain death from an
international legal perspective. Current criteria include either whole brain
death or brain stem death alone, and primarily focus on the irreversible loss
of consciousness coupled with the loss of all regulatory functions of the
brain stem. Canada will be used as a case study to establish a proposal for
adopting a cortical criteria of death. As it stands there is no national, unified
understanding of brain death in Canada. It will be proposed that the
Canadian legislature amend the Criminal Code to allow the determination
* BA (University of King's College), BCL/LLB Candidate, McGill University Faculty of Law.
The author would like to dedicate this article to her parents, Byrne and Laura, and to her
brother, Kale; their continued guidance and support is inspiring.
1 Dale Gardiner et al, “International Perspective on the Diagnosis of Death” (2012) 108 British
J Anesthesia 14.
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of death under cortical standards. A cortical criterion would allow
physicians to determine death based on the irreversible loss of function of
the cortical region of the brain, independent of the brain stem.
The cortical region of the brain is the location of what the author will
term “the sentient-self.” It will be argued that the sentient-self encompasses
all aspects of what it means to be living. At present, the law does not take
this sentient-self into consideration and focuses on public, rather than
medical conceptions of death. This proposed amendment is a novel
suggestion which anticipates the rapid advancements in technology that are
currently occurring within the medical community.
This article is divided into five sections. Section I will review the
current criteria for brain death by conducting a comparative analysis of the
differing perspectives taken in Canada, the United States, Denmark, the
United Kingdom and Ireland. Section II will propose a cortical definition of
death and will examine case law in the area which represents support for
our ever evolving understanding of death. Section III will outline a proposed
legislative amendment to the Canadian Criminal Code, noting that the
suggested approach could serve as a prototype for other jurisdictions in
making similar advancements. Section IV will consider the beneficial effect
of the proposed criteria on the supply of organs. Finally, Section V will
outline the current criticisms surrounding a cortical definition of death,
resolving that the proposed amendment negates these concerns. It will be
concluded that there is sufficient support and advancement in the medical
community to introduce a new criterion for death based on the irreversible
and complete loss of functioning in the cortical regions of the brain.
I. Current Criteria of Brain Death
Due to technological advancements, both the conceptions of death, and the
criteria necessary for determining death, has evolved over time. Until the
mid-20th Century, death was determined using somatic or circulatory
criteria.2 Under this criteria the determination of death was focused largely
on whether the individual had a functioning heart. With the invention of
mechanical ventilation in the 1940’s, the medical community realised that
the inevitable cessation of the heart, which follows the cessation of
respiration, could for the first time, be avoided.3 Patients who were
2 Ibid., at 14.
3 Robert M Kacmareck, “The Mechanical Ventilator: Past, Present, and Future” 56(8)
Respiratory Care 1170, at 1173.

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