Reconciling Competing Definitions of Death
When does life end? The question has important consequences for many areas of law, from criminal law to trusts and estates to taxes. The law has traditionally associated death with a cessation of cardiac and respiratory functioning, but advances in medical technology now mean that hearts and lungs can be kept working artificially for long periods of time. As a result, U.S. law has generally shifted over the past half-century to a new definition of death that turns on whether there has been an irreversible loss of brain functioning. However, as 3L Rachel Delaney explains in a new paper on SSRN, Orthodox Jews have continued to adhere to the old cardiac standard as a matter of religious law. This creates a potential for conflict and the possibility of further emotional harm for family members at a time when they are already dealing with the loss of a loved one — for instance, if a brain-dead patient were withdrawn from life support at a time when the patient was not actually dead according to the family’s deeply held religious beliefs.
Rachel thus argues that the law should recognize a religious exception to the brain-death standard. Indeed, she contends that such an exception may be required by the Free Exercise Clause.
Rachel’s article is entitled “Defining Death: Why All Fifty States Should Adopt the Uniform Definition of Death Act with a Religious Exception.” The abstract appears after the jump.