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.”

As a nurse and policy analyst, my interest in the subject of active euthanasia lies in the practical consequences of formal policy (for example, ethical guidelines), as well as the consequences of having no formal policy, for therapeutic practice.

The basic assumption underpinning this paper is that policy decisions in the area of euthanasia cannot be simply ‘read off’ from any theoretical body of knowledge, but rather such decisions are always grounded in particular situations and social relationships. In this, I concur with Reedy, Minogue, and Sterk, who argue that:

In recent years, the competency of patients to refuse life-sustaining treatment has been widely discussed. Generally, competence has been recognized to be a legal concept, holding that the patient is presumed competent unless a court declares the person incompetent and designates a guardian. It has been noted, however, that clinical medical practice often diverges markedly from this standard. Some authors have suggested that in many cases the implicit medical presumption may be that many persons, particularly the aged, are presumed incompetent to refuse treatment until they demonstrate to their physician's satisfaction that they are competent. This gap between legal theory and medical practice presents numerous difficulties to both legal and medical professionals seeking to accommodate the competing values of patient self-determination and best interests.

This paper will present and discuss a case exemplifying a particular problem that can arise in the competency evaluation process.

Both courts and legislatures have gone a long way toward recognizing individual autonomy to shape the extent of medical intervention in the face of a naturally occurring dying process. This autonomy extends beyond the patient's period of capacity to make decisions on his or her own behalf. That is, a person, while still competent, can express treatment preferences, and those preferences will generally be honored after competence to make medical determinations has been lost. This is the message flowing from judicial emphasis on “substituted judgment” as an important guide in the medical handling of incompetent patients, and from the multitude of “natural death” or “living will” statutes adopted over the last 12 years.

These statutes prescribe a format for a person to issue instructions about medical treatment or non-treatment to be followed if the person becomes incompetent. Such prior instructions designed to guide future medical decisions can be somewhat problematical. If the instructions are not issued proximately to the moment of their utilization, there may be concern that the issuer's preferences have changed over time.

For more than 20 years, the Soviet Union has been charged with confining political and religious dissidents in psychiatric hospitals for other than medical reasons. The repressive use of psychiatric hospitalization has been primarily associated with the maximum security “special hospitals,” operated by the Ministry of Internal Affairs, to which dissidents have been committed after being found mentally nonresponsible for political crimes. In 1977, the World Psychiatric Association (WPA) condemned the Soviet Union for such abuses, and six years later the Soviet All-Union Society of Neuropathologists and Psychiatrists resigned from the WPA rather than face almost certain expulsion. Soviet psychiatric officials repeatedly denied these charges of political abuse and refused to permit international bodies or psychiatrists from other countries to see the patients and psychiatric hospitals in question.

In the spring of 1989, however, the Soviet government allowed an official delegation of psychiatrists and forensic experts from the United States to interview patients, selected by the delegation, in whose cases hospitalization was believed to have been politically motivated.

For centuries philosophers and writers have reflected on the idea that all human beings, by virtue of being human, are entitled to certain fundamental rights and freedoms. Among these are political and civil rights, as well as economic, social, and cultural rights. Historically, however, how an individual was treated within the boundaries of his own country was not considered the business of any other country. After 1945, as a result of the Holocaust and the atrocities committed by the Nazis against humanity, human rights questions were accepted as international concerns. The nations of the world then agreed that the promotion of human rights and fundamental freedoms were to be one of the principal purposes of the newly-formed United Nations. The Universal Declaration of Human Rights and the Genocide Convention were adopted in 1948. The Universal Declaration of Human Rights sets out common standards that all peoples and all nations should strive for.

Racism, which has pervaded and debased life in many countries, was given little attention by the international community before the Second World War when international law only governed relationships between states; the way in which individuals were treated within their own states was considered to be a purely domestic affair. The revulsion engendered by the Nazi atrocities however had a profound effect on world opinion, and in 1945 the “United Nations” grew out of the League of Nations with the hope that this body could contribute to the maintenance of international peace and encourage worldwide respect for human rights and fundamental freedoms. Three years later, in 1948, the Nationalist Party came into power in South Africa and the racial attitudes of the time were committed to the statute books in this country.

Abortion is the most divisive issue in American society today, but that is not unique because the issue troubles many other Western countries as well. Acrimonious debate has ensued in America in the wake of the Supreme Court's latest pronouncement in Webster v. Reproductive Health Services. Anxiety about the future of the law in America has been widely expressed by pro-life and prochoice groups alike. These could well be the visible skirmishes of the abortion battle and the conflict over the existence of a woman's right to choose in almost any Western jurisdiction. Perhaps only the intensity of debate and venue of battle vary.

In the wake of Roe v. Wade the American battle fronts have mainly been in the courts. A plethora of cases in both state and federal courts has tested the constitutionality of legislation passed by State legislatures restricting the availability of abortion.

The marriage of academic research laboratories to the biotechnology industry has raised some very complex ethical and legal issues regarding commercialization of human body parts, products and derivatives thereof. Current statutes prohibit the sale of one's body or bodily organs although people may legally sell their blood or semen and are generally encouraged to donate certain body parts for transplantation or research both in life and death. No existing legislation, however, clearly addresses ownership rights with respect to human cells and tissues used in research, Commercialization of human biological material, either by the donor or by the recipient, e.g., researcher and/ or pharmaceutical company, is an uncharted area of the law.

The question of proprietary rights to one's own cells and tissues did not arise until the biotechnology industry rapidly expanded in the 1980s. Now, human organs, tissues and cells are used in research that may lead to the development of products with tremendous commercial value.