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Unpublished Paper
Consciousness and Futility: A Proposal for a Legal Redefinition of Death
ExpressO (2014)
  • Christopher Smith, Belmont University
Recent controversies in Texas (with the Marlise Muñoz case) and in California (with the Jahi McMath case) have highlighted a lamentable flaw in the current legal conception of human death, and the difficulty of defining when death finally occurs. The unworkable notion of “brain-death” remains the law in every state in the union, yet the philosophical and scientific foundations of this notion remain open to attack. This article posits that death is a fundamentally social construct, and that it is society at large (through its laws, public opinions, religious attitudes, etc.) that actually defines death. This essay then argues that the “whole-brain” conception of death as currently conceived and enforced suffers from the same kinds of infirmities (under-inclusion and arbitrariness) that necessitated the departure from the purely cardio-pulmonary conception of death in the first place. Further, this essay advances public policy rationales (respect for patient autonomy and proper balance of competing interests) for altering the current definition of death. Finally, this essay suggests that the legal definition of death be reconsidered to emphasize that irreversible loss of consciousness such that continued medical treatment would be of no benefit are the crucial principles involved in determining whether someone has died.
  • legal death,
  • bioethics,
  • health policy
Publication Date
March 12, 2014
Citation Information
Christopher Smith. "Consciousness and Futility: A Proposal for a Legal Redefinition of Death" ExpressO (2014)
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