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Neocortical Death and Human Death

Published online by Cambridge University Press:  29 April 2021

Raymond J. Devettere
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Extract

Proposals to make neocortical death, sometimes called cerebral death, a medical and legal indication of human death are becoming more common. Increased sensitivity to the futility and costs of providing life support for patients long after they could be considered dead guarantees that interest in the proposals will continue for some time. Neocortical death would be an acceptable indication of human death if 1) it is consistent with our concepts of human death, 2) it can be diagnosed with certainty and 3) it is sufficiently understood by the general public to be accepted as public policy.

In this paper the phrase “neocortical death” will refer to permanent loss of consciousness due to the irreversible cessation of whatever chemical and biological functions of the brain are needed to support consciousness. By consciousness is meant “the state of awareness of the self and the environment.”

Type
Article
Information
Law, Medicine and Healthcare , Volume 18 , Issue 1-2 , Summer 1990 , pp. 96 - 104
Copyright
Copyright © 1990 American Society of Law, Medicine & Ethics

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References

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Courts have tended to allow withdrawal of medical feeding from neocortically dead patients almost exclusively on the basis either of the patient's common law right to refuse medical treatment or of the constitutional right of privacy provided the rights are not overridden by any of the four countervailing state interests and provided there is evidence of the patient's wishes. See Armstrong, C.J., “Judicial Involvement in Treatment Decisions: The Emerging Consensus,” in Critical Care, Civetta, J.M. et al., eds., Philadelphia: J.B. Lippincott Company, 1988: 1649–1655. Classic cases are Brophy (MA 1986), Peter and Jobes (NJ 1987) and Gray (RI (federal court) 1988). But in 1988 the Missouri Supreme Court refused to allow withdrawal of medical feeding from a neocortically dead patient (Cruzan). The court found it would be impossible for a person to exercise properly the common law right to refuse medical treatment for hypothetical future circumstances and also questioned the extension of the constitutional right to privacy to decisions involving withdrawal of medical feeding from a person not terminally ill. A Supreme Court Decision on the appeal is expected in 1990. In August 1989, however, in a case expected to be appealed, an appellate court in New York overturned a lower court and allowed withdrawal of medical feeding from a patient unconscious for over 3 years (Elbaum). See The New York Times, August 3, 1989, B1.Google Scholar