In recent years, controversy has increased over the concept of brain death, leading the Uniform Law Commission to discuss whether the legal determination of death should be updated. However, changing the determination of death could have widespread impact on organ donation, state laws, and more, Amy Dockser Marcus writes for the Wall Street Journal.

The growing debate over death

For over 40 years, death in the United States has been determined in two ways. One way that death occurs is when the heart and lungs stop working. The other is brain death, which is defined as the "irreversible cessation of all brain function, even if the heart and lungs can be maintained with machines," Marcus writes.

However, in recent years, there has been a growing debate over the concept of brain death. Currently, brain death is a legal designation in all 50 U.S. states, but how it is determined, including the tests used and which physicians are qualified to make a determination, varies by state.

Some families have objected to doctors evaluating their loved ones for brain death and filed lawsuits against brain death determinations.

There is also controversy over whether the loss of brain function alone is enough to declare an individual dead. For example, people who are brain dead can still survive and experience biological changes, such as undergoing puberty or carrying a pregnancy.

New scientific advances may also further blur the line between life and death, Marcus writes. Earlier this year, researchers at Yale University developed an experimental system that restored functions to the hearts, lungs, and brains of pigs that had died an hour prior.

Could the way death is determined change?

To address potential issues surrounding the determination of death, the Uniform Law Commission in 2021 established a 13-member drafting committee of lawyers, as well as a group of observers that include neurologists and philosophers, to discuss potential revisions to the Uniform Determination of Death Act.

So far, the committee has not reached a consensus on any revisions or specific determinations that should be used. One committee member suggested getting rid of the brain death determination altogether, arguing that people are still entitled to legal protections even if their brains are too damaged to regain consciousness, but the committee voted against this proposal in April.

According to the proposal's opponents, eliminating brain death as a way to determine death could worsen organ shortages. Brain death accounts for a majority of deaths in organ donors, despite only making up just over 2% of hospital deaths in the United States.

Data from the United Network for Organ Sharing, which manages the country's organ transplantation system, shows that there are more than 100,000 people on the national waiting list for hearts, kidneys, and other organs.

"Without brain death, most of the U.S. organ transplant system goes way," said Thaddeus Pope, a law professor at the Mitchell Hamline School of Law.

Although the commission drafts up uniform legislation for states, it is up to the states themselves to decide whether to adopt the recommendations. This means that the debate over the determination of death could move to the states, some of which may include exemptions for people who do not accept brain death for religious or other reasons.

According to Peter Langrock, founder of the law firm Langrock Sperry & Wool and a member of the drafting committee, potential revisions to the Uniform Determination of Death Act could lead more states to adopt exemptions to the law. So far, New Jersey is the only state that allows people to seek a religious exemption and still receive insurance coverage for a ventilator for a patient who is brain dead.

"Instead of improving uniformity over death, we might have the opposite effect," Langrock said.

Typically, the commission's drafting process takes two years to complete, but because of several issues of contention, Samuel Thumma, a judge on the Arizona Court of Appeals and the chair of the drafting committee, in April extended the process an additional year.

"We are in the middle of the river," Thumma said. "We haven't gotten to the other side." (Marcus, Wall Street Journal, 12/11)