All states should enact legislation redefining the conditions under which a person may be declared legally dead.
In place of the current definition of "whole brain" death, we should substitute "cortical brain" death in order to recognize the facts of being human that separate us from plants and from most other animals.It has been almost two decades now since many states enacted brain-death statutes. These laws, generally, state that death occurs when a person shows complete and irreversible loss of spontaneous brain and respiratory functions.
The purpose and effect of this legislation was to narrow the gap between the law and modern medical technologies, to prevent the useless and harmful application of sophisticated medical procedures.
There are three reasons for further narrowing that gap by enacting a cortical definition of death (by which a person would be declared dead when the brain's cortex, not the entire brain, is completely and irretrievably lost).
First, that act would recognize and recover the ancient wisdom of what it means to live a distinctly human life, to be a person.
To be a person one must, at least in rudimentary ways, be able to love and be loved, to entertain thoughts, to have hopes and desires, to be aware of oneself.
When those rudiments are no longer possible, the "person" has ceased to be, has "died." That has long been recognized by religious traditions that most of us share.
This means that when the cortex dies, so does the person. What is left is merely the shell of the body in which the person used to live. The only proper action remaining is to dispose of it respectfully.
In an earlier day people used appropriate organic indicators of a person's death, cessation of breathing and heartbeat.
With modern medical techniques, chiefly the respirator and "artificial" feeding through tubes, those indicators now fail us.
We simply need more accurate organic tests for determination of the death of a person. Cortical death is that test. It recovers respect for persons and abandons respect for mere physical organisms.
Second, most people who have thought about it do not want their body preserved in a vegetative state. Many have now declared so through "living wills" and durable powers of attorney for health care.
Most of us believe that a person should be able to determine what happens when life is over, that organic death should not be postponed against our will.
Third, by adopting a cortical definition of death we would avoid prolongation of grief for those who care about us, and we would avoid the waste of valuable resources - time, energy and money.
In achieving those gains we would not place a burden on the patient; the cortically dead patient cannot suffer. Because the patient's needs have ceased, the patient has no interests to be protected.
Why, then, do we persist in maintaining organic life in those whose cortex has died and whose human existence has ceased? The usual reason given is that we must guard against both mistaken judgment (diagnostic error) and deliberate abuse (killing).
Mistaken diagnosis can lead to failure to treat someone whose life might be usefully maintained. But we do not insist upon, and indeed cannot have, absolute certainty in most of our truly important decisions. Why this one? And what about abuse? Answer: We can create adequate safeguards both medically and legally.
I suspect that there is another reason (dare I utter it!): hospitals take in from $30,000 to $50,000 annually from each of the more than 10,000 vegetative patients in the country. And some physicians fear lawsuits more than they eschew inhumane medical practice.
To be a person, we have to have a functioning cortex. We need legislation that acknowledges that fact.