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.