The Definition of Death

• Date: 01 January 2012
• Author: John Lombard

The Definition of Death

JO HN L OMBA RD

Introduction

In “Aubade” the poet Philip Larkin wrote “[m]ost things may never

happen: this one will”.1This simply sets out that death is something which

cannot be escaped from and is a reality which is to be accepted. However, it

is a reality which is bundled with much philosophical analysis, as wel l as

religious and so cial mores.2Hanafin suggests that, as a result of death

becoming increasingly medicalised, this signals the first move towards “the

need for legal intervention in this area.”3At present, there is no legislative

definition of death in I reland but there have been moves towards the

introduction of such a definition, as seen by the inclusion of a definition of

death in the Draft Proposals for the Human Tissue Bill 2009.4This article

considers whether the definition contained in the Draf t Proposals for the

Human Tissue Bill 2009 is appropriate. Furt hermore, this article aims to

identify a suitable legal framework for defining death.

The background to the definition of death is the first point discussed in this

article. This will set out the development of the cardiopulmonary standard

as well as demonstrating the impact and imp ortance of the definition of

death. For example, the definition has a significant impact on organ

transplantati on, decisions in relation to various aspects of medical

treatment, as well as signalling th e point at which end-of -life care c eases.

The discussion of such issues also serves to demonstrate that medical

technology has advanced to the point where biological indicators of death

are no longer the ulti mate sign of death, a point demonstrated by the

development of transplant surgery where the heartbeat may be stop ped

intentionally. In order to avoid this problem, brain function has been relied

on to inform alternative definitions of death. The relevant Irish reports on

defining death will be set out to demonstrate the evolution of the definition.

1 P. Larkin, “Aubade” in 100 Poems by 100 Poets (London: Methuen, 1986), p.93

2 Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain

Death, “A Definition of Irreversible Coma: Report of the Ad Hoc Committ ee of the

Harvard Medic al School to Examine th e Definition of Brain D eath” (1968) 205(6)

Journal of the American Medical Asso ciation 337, p.337 [hereinafter Harvard

Committee]. More than a medical issue, it also includes “moral, ethical, religious and

legal issues.”

3 P. Hanafin, Last Rights: Death, Dying and the Law in Ireland (Cork: Cork University

Press, 1997), p.7

4 Draft Proposal for General Scheme of the Human Tissue Bill 2009

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However, in order to critically assess the definition contained in the Draft

Proposals for the Human Tissue Bil l 2009 it is necessary to consider the

experience of other jurisdictions in identifying an appropriate definition of

death. In particular, this involves drawing on the experience of the United

States, which has had a number of reports addressing both the medical and

legal aspects of the definition. The final point this article will address is

whether there i s a need for legislation to be introduced in this area or

whether a more flexible approach, which may rely on medical guidelines, is

more appropriate. Again, this point will involve comparison of the Irish and

US experiences in order to identify a suitable legal framework. The overall

effect of this is to question all aspects of the definition in the Draft Human

Tissue Bill 2009.

Background to the Definition of Death

Black’s Medical Dictionary defines death as “[t]he ending of life; cessation

of all vital functions and signs.”5These vital functions inclu de respiration

and heartbeat, which is known as the cardiopulmonary standard. Although

the cessation of respirati on and heartb eat seem like obvious indic ators of

death, it is only relatively recently that they ha ve become recognised and

accepted signs of death. The defin ition of death can only become widely

acceptable when the medical technology exists to support the criteria. It was

with the development of the stethoscope6that the cardiopulm onary

standard was trusted. Howeve r, developments in medical technology also

resulted in unintended problems in other regards. This is demonstrated by

the fact that the cardiopulmonary standard is no longer a definitive sign that

a person has died.7The development of the mechanical ventilator allows for

artificial respiration of a person who is unable t o breath e withou t assis -

tance. However, not all patients who are relying on a mechanical ventilator

for continued respiration have the same level of incapacitation. In 1959, it

was proposed by the French neurologists Pierre Mollaret and Ma urice

Goullon8that patients who had “maximal incapacitation”9were in a state

5H. Marc ovitch (ed ), Black’s Medical Dictionary, 41st edn (London: A & C Black

Publishers, 2005), p.458 [hereinafter Marcovitch]

6 M. Alexander, “‘The Rigid Embrace of the Narrow Hous e’: Premature Burial & the

Signs of De ath” (1980) 10(3) The Hastings Ce nter Report 25, p.30; A. Sakula,

“R.T.H. Laënnec 1781–1826: His life and work: a bicentenary appreciation” (1981)

36 Thorax 81, p.81. The Stethoscope was invented by René Laënnec in 1816.

7 Airedale N.H.S. Trust v Bland [1993] A.C. 789, p.878. “In medicine, the cessation of

breathing or of heartbeat is no longer death. By the use of a ventilator, lungs which in

the unaided course of nature would have stopped breathing, can be made to breathe,

thereby sustaining the heartbeat.”

8President’s Council on Bioethics, “Controversies in the Determination of Death”

(Washington: U.S. Government, 2008), p.3 [hereinafter President’s Council]

9 Ibid

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