Brain Death Forsaken: Growing Conflict and New Legal Challenges

37(3-4) Journal of Legal Medicine 265-324 (2017) (published Feb. 23, 2018)

Posted: 26 Jun 2017 Last revised: 23 Feb 2018

See all articles by Thaddeus Mason Pope

Thaddeus Mason Pope

Mitchell Hamline School of Law; Queensland University of Technology - Australian Health Law Research Center; Saint Georges University; Alden March Bioethics Institute

Date Written: June 23, 2017


Thomas Paine wrote The American Crisis during the American Revolution. He made the following observation: “To argue with a man who has renounced the use and authority of reason... is like administering medicine to the dead.” Like much of Paine's writing, this was powerful rhetoric. Paine wanted to metaphorically illustrate futility. But the metaphor does not seem quite as cogent, today. Not only is “death” a far fuzzier concept than it was in 1778, but many advocate that administering medicine to “the dead” may have some value.

The determination of death by neurological criteria, commonly known as “brain death”, has been legally settled for nearly forty years. However, that consensus has become increasingly unraveled. On the one hand, one might think that a “backlash” to brain death is nothing new. After all, a medical and ethical academic debate over the conceptual coherence and ethical legitimacy of brain death has been stewing for decades. On the other hand, recent developments are materially different. Particularly over the last two years, the slow simmer of an academic debate has now begun to boil over into a legal conflagration.

The eminent neurologist and ethicist, James Bernat, estimated that “critics and skeptics have not gained much traction with lawmakers.” While true for decades, that assessment is no longer accurate. Critics and skeptics of brain death have moved their arguments from the pages of books and journals to the pages of complaints and motions. They have been using the courts to successfully challenge prevailing and long-standing brain death principles. In other words, what has long been an intellectual and scholarly debate is now increasingly framed as a question of law and public policy. The legal status of brain death is no longer merely a subject for more scrutiny and deliberation. It is now a target for fundamental reassessment of settled practices.

In his classic 1897 essay, The Path of the Law, Oliver Wendell Holmes, Jr. warned against blind imitation of the past and called for enlightened skepticism toward the law. He described the first step of this critical examination as pulling “the dragon out of his cave and on to the plain and in the daylight,” so that “you can count his teeth and claws and see just what is his strength.” The purpose of this article is to get the brain death dragon further out of his cave by summarizing and analyzing three legal attacks on brain death.

Section I establishes the legal status of brain death. As codified in the Uniform Determination of Death Act (UDDA), brain death is legal death everywhere in the United States. Moreover, the implications of this status are clear. Clinicians have no treatment duties after brain death, except for: (1) a religious opt-out in New Jersey, and (2) temporary duties to accommodate objecting families in three other states. While the law is settled, family resistance is growing. Section II describes the leading reasons for family-clinician conflict.

The rest of the Article describes three new court challenges to the legal status of brain death. Section III describes a challenge that contends that prevailing medical criteria do not measure what the law requires. Laws in every state provide that an individual is dead, if that individual has sustained “irreversible” cessation of “all” functions of the “entire” brain, including the brain stem. But the diagnostic tests that clinicians now normally use are not designed to, and cannot, evaluate or ascertain the satisfaction of these rather categorical and absolute standards.

Section IV describes a challenge that contends that clinicians need surrogate consent to administer the apnea test. The apnea test is a key component of brain death assessment. While families have almost no rights to demand treatment after death, they have effectively used their rights before death. Families that have successfully objected to the apnea test have been able to prevent clinicians from determining brain death. Consequently, they have successfully prevented clinicians from declaring the patient dead and withdrawing organ-sustaining treatment.

Section V describes a challenge that contends clinicians must indefinitely accommodate religious objections to brain death. The general rule is that clinicians have no duty to continue physiological support after brain death. But this presents a profound problem for patients with religious objections. For these individuals, the denial of physiological support violates fundamental values. Only New Jersey has legislatively granted a complete religious exemption. Some lawsuits contend that exemption is required by constitutional principles.

In sum, U.S. society is grappling with three types of court challenges to brain death. Moreover, these challenges are new, so we do not yet have much definitive guidance. Because medical treatment conflicts surrounding brain death increasingly escalate to the courts, we need answers. I reach three conclusions. First, state legislatures should amend brain death laws to align with medical practice. Second, families should be able to refuse consent to the apnea test, only temporarily, pending transfer. Third, it is premature to expand religious exemptions.

Keywords: brain death, informed consent, medical futility, health law

JEL Classification: I18, K13, K32

Suggested Citation

Pope, Thaddeus Mason, Brain Death Forsaken: Growing Conflict and New Legal Challenges (June 23, 2017). 37(3-4) Journal of Legal Medicine 265-324 (2017) (published Feb. 23, 2018), Available at SSRN:

Thaddeus Mason Pope (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Avenue
Room 320
Saint Paul, MN 55105
United States
651-695-7661 (Phone)


Queensland University of Technology - Australian Health Law Research Center ( email )

2 George Street
Brisbane, Queensland 4000

Saint Georges University ( email )

West Indies


Alden March Bioethics Institute ( email )

47 New Scotland Ave
MC 153
Albany, NY 12208
United States


Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics