Elizabeth Price Foley
Copyright Date: 2011
Published by: Harvard University Press
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  • Book Info
    Book Description:

    Are you alive? Most people believe that some law defines our status as living (or not) for all purposes. But Foley shows that “not being dead” isn’t necessarily the same as being alive, in the eyes of the law. The need for more organ transplants and conservation of health care resources is exerting pressure to expand the legal definition of death.

    eISBN: 978-0-674-06090-6
    Subjects: Law, Health Sciences

Table of Contents

  1. Front Matter
    (pp. [i]-[vi])
  2. Table of Contents
    (pp. [vii]-[x])
  3. Introduction
    (pp. 1-6)

    Are you alive? What makes you so sure? Admittedly, it would be hard to read this book if you were not alive. But an ability to read is not a reliable proxy for life; many living creatures are illiterate or otherwise unable to read. So what is it that defines one’s status among the living? Is life biological—something akin to “I am breathing” or “My heart is beating”? Is it spiritual, as in “I have a soul that animates my body”? Or perhaps the definition of life should be more intellectual, such as “I think, therefore I am”?

    If asked,...

  4. 1 Statutory and Common Law Life
    (pp. 7-56)

    It is a miracle that happens hundreds of thousands of times each day. Sperm meets egg. Their chromosomes begin intertwining, forming a unique genetic combination. The mysterious, awe-inspiring process of rapid cell division begins. Within a short time, if all conditions are right, the growing embryo will find a cozy spot on the uterine wall and attach, securing a life-giving bond with its mother. Somewhere between sixteen and twenty-one weeks after conception, the mother will begin to feel kicking or moving inside the womb. After about twenty-one weeks, the fetus may be able to alive independently of its mother, though...

  5. 2 Constitutional Life
    (pp. 57-84)

    The U.S. Constitution is the supreme law of the land. It refers throughout to “persons” and “people” who are entitled to basic rights. Neither the state nor federal governments, for example, may deprive “persons” of life, liberty, or property without due process of law.¹ Given the variety of constitutional rights that explicitly or implicitly attaches to persons, the question arises: who qualifies as a constitutionally cognizable person?

    The stakes in the constitutional debate are high. Unlike the ordinary statutes and common law discussed in the previous chapter, the Constitution establishes a guaranteed minimum, a floor of protection, below which no...

  6. 3 Cardiopulmonary Death
    (pp. 85-112)

    What is death? It is death that marks the critical moment when one’s last will and testament becomes effective, when charges of murder or manslaughter become salient, or when life insurance contracts must be satisfied. But when, exactly, does the law declare that the grim reaper has taken us?

    A conservative answer would be that death can be declared only on evidence of decomposition, for only then can we be sure that we have crossed the point of no return. But putrefaction can take days to set in, and it seems a poor proxy for death when compared to quicker...

  7. 4 Brain Death
    (pp. 113-151)

    Medical technology has both saved and enslaved us. It saves us from death in a mind-boggling number of ways. Yet precisely because it can reverse the previously irreversible, it also keeps us alive when it may not seem morally, ethically, or rationally appropriate to do so. This has created a unique modern legal question: can we disconnect this life-sustaining technology at some point—that is, pull the plug? The law’s attempt to answer this question has given rise to two parallel legal developments, both of which have the net effect of allowing life-sustaining care to be terminated: (1) the recognition of...

  8. 5 Constitutional Death
    (pp. 152-199)

    The Constitution does not speak of death or the dead. It speaks of persons and people, and gives those persons various rights. Persons are entitled, for example, to be free from governmental deprivations of “life, liberty, or property, without due process of law.”¹ The due process guarantee implies that government may exact life as punishment, so long as due process is provided. Additionally, the Eighth Amendment prohibits cruel and unusual punishment, which has been interpreted to allow the death penalty in certain situations.² Death, therefore, is constitutionally sanctioned as a penalty for crime.

    Beyond the death penalty, however, the Constitution...

  9. 6 Not Dead Yet
    (pp. 200-245)

    Death of the whole brain is accepted as legal death. But what happens when our brains are severely and permanently damaged, yet still have some minimal degree of function? If discernible brain function remains, no legal declaration of death is supposed to ensue. But there are legal procedures—explored in the previous chapter, such as advance directives and the invocation of the right to refuse unwanted treatment—that allow death to occur short of whole brain death. These alternatives to whole brain death create pressure to terminate life support for those who suffer from massive brain injuries. The costs associated with their...

  10. 7 Unbeing Dead Isn’t Being Alive
    (pp. 246-258)

    Stepping back and looking at the law in toto, there are two distinct political ideologies at play, both of which have managed to capture legal recognition in various ways. On the one hand, there is a “right-to-life” movement, espousing the belief that life begins at conception and urging legal reforms that reflect this belief. On the other hand, there is a “right-to-die” movement, espousing the belief that quality of life, not mere biological itself, should be the focus of the law. Neither one of these ideologies has dominated, yet their fingerprints are discernible within discrete areas.

    The law has agreed...

  11. Notes
    (pp. 259-296)
  12. Acknowledgments
    (pp. 297-298)
  13. Index
    (pp. 299-304)