ULC

Determination of Death Act Summary

In an era of rapid technological change, it is not unusual for technology to overcome medical, social and legal commonplaces. One instance of this is the legal standard for determining biological death. Advances in medical techniques and equipment have made it necessary to re-evaluate traditional legal standards for declaring a human being dead.

Such standards are necessary not because of death itself, but because of the effect in the law of the biological fact of death. Criminal law outlaws murder for the protection of life. Yet ironically, criminal law requires a legal determination of death upon which murder sanctions can be anchored. Determinations of death are also important in establishing the property relationships that arise through inheritance and devise. They are important in tort law to actions in wrongful death and survivor's action. The standards for determining death are not much of a problem for the deceased, but they are important to the living, who may be favored or disfavored in the law because of the biological fact.

The Uniform Law Commissioners (ULC) created the Uniform Brain Death Act in 1978 in an effort to clear up the legal ambiguity that had arisen over the question of determining death. It was plain that legal recognition only of traditional criteria—which rely on measuring cessation of respiration and circulation—would no longer suffice.

Clearly the brain, as the center of the human body, is its most important organ. Its irreversible functioning should be accepted as death. Nonetheless, cessation of respiration and circulation are easily detectable and have been the only means available to determine death until very recently. Direct detection of loss of brain function is a product of very modern technology.

Technology has made it necessary to find criteria other than respiration / circulation criteria. Those biological functions can now be maintained by "extraordinary means of life support" beyond the time the brain can be maintained. Therefore, a broader standard than the traditional one for determining death has become essential.

The Uniform Brain Death Act simply established that the "irreversible cessation of all functioning of the brain, including the brain stem" is death. It then prescribed that determination of death be made in accordance with "reasonable medical standards." The ULC assumed that the traditional criteria would stand automatically alongside the brain-death standard described in the uniform act, and so did not mention those criteria in the act itself. But this omission proved confusing for states trying to adopt comprehensive legislation on the subject.

The ULC corrected the situation in 1980 by replacing the act with the Uniform Determination of Death Act (UDDA). The UDDA essentially leaves the old act's language intact, but adds "irreversible cessation of circulatory and respiratory functions" as an alternative standard for determining death. The term "reasonable medical standards" has also been changed to "acceptable medical standards."

The UDDA is intentionally not entitled the Definition of Death Act. This is because it does not contain an exclusive definition of death. It is concerned only with medical determination of biological death, and as such, complements existing and accepted definitions.

The act does not specify an exact means of diagnosis. To do so would guarantee its obsolescence as technology advances. Specifying criteria would inhibit advancement in technology, and also would inhibit the courts in determining the facts in each individual case and in recognizing acceptable standards as a dynamic, rather that static, concept.

The purpose of the UDDA is a minimum one. It recognizes cardiorespiratory and brain death in accordance with the criteria the medical profession universally accepts. The act does not authorize euthanasia or "death with dignity," and does not enact any sort of living will. The current state of medical decision-making as it relates to death, termination of life, or other related issues remains unchanged. These issues are left to other law. The UDDA simply attempts to relieve one relatively small problem in law and medicine, before it becomes a larger one.