“These are the things we should be looking at, not an overarching concept of how the brain works,” he said. “It`s about knowing what the brain is for.” Although medicine is not able to determine the exact moment when the significant qualities of life are not recoverable, the clinical evidence should be sufficient to maintain a single, reliable – but attractive – definition of death. In order to avoid false hope and an unfair allocation of resources, normative and ontological definitions must coincide. If we agree that the patient is dead – based on dysfunction and the latest comprehensive evidence on when trying to restore function yields no benefit – the individual is actually dead. Laws to determine death must draw boundaries that are shaped by practice and ethics, even if they cannot exactly separate death from life. For example, some states have taken an individualized approach to defining death, while retaining the UDDA as the basic standard.26 New Jersey has a Declaration of Death Act, which provides a legal exemption that allows religious individuals and families to cease formally reporting death under the brain death criterion.27 The exception states that: Determining the nature of death often has important legal implications. Governments select or appoint a coroner, depending on the province or territory, to determine both the manner and cause of death and, if necessary, to identify organizations whose identity is unknown. The nature of death is generally classified as natural, accidental, murder, suicide, pending or undetermined. A soldier is often listed as killed in action if the death occurred during military service. All classifications have legal implications. The higher brain norm of death identifies the key aspects of what makes us people, and then identifies death from the source of those aspects as the death of the person. Thus, the higher brain count works by identifying our personal identity with the cerebral hemispheres in some way. It is essentially an application of the theory of identity of mind.

The theory of identity of mind states that “the states and processes of the mind are identical to the states and processes of the brain”.43 If “each of us is essentially a spirit”44 and our mind is identical to our brain, then the death of the brain will be the death of the spirit, and consequently the death of the person. This applies to the entire brain norm when the entire brain is dead. For the higher brain norm, the death of the cerebral hemispheres will be enough for the death of the person, because it is the parts of the brain that make up the mind. If a clinically deceased person has sustained injuries so severe that resuscitation is obviously impossible, first responders in some jurisdictions may make a legal decision regarding cardiopulmonary death. Such a person is said to be dead on arrival (DOA) or dead at the scene of the crime. [11] Historically, those who have committed crimes or other wrongs against the state have been declared legally dead, even though they are clearly alive. This is called civil death. Such a person loses all the rights normally accorded to a person. In jurisdictions that practiced civil death, it was legal to kill such a person because he or she was not really living by the law and therefore was not actually killed.

[21] The rationale for the permanency standard requires certainty that the decision not to attempt to resume organ function would not be successful in restoring a meaningful quality of life. The final part of the UDDA – that a determination of death must be made in accordance with accepted medical standards – assumes that standard death screenings can accurately determine when a person with a loss of function does not benefit from the intervention`s attempt to restart function. The variability in norms for determining brain death9 and the time to wait after circulatory death before organs are obtained10 does not inspire confidence in our ability to agree on this moment. Irreversibility sets the bar high. Many people classified as dead according to accepted medical standards could receive procedures that would restore minimal biological function. While these individuals would not recover meaningfully through interventions, they would not technically meet the law`s standard of irreversibility. James Bernat sought to bring medical practice into compliance with the law by suggesting that irreversibility – that a function that has ceased cannot be resumed – can be replaced by permanence – that a function that has ceased is not restarted on its own and that no intervention is undertaken to restart it.8 The standard of permanence implies that interventions are not performed because they do not restore a meaningful quality of life. If such a practice can be justified, at least the definition of death should be updated to replace the standard of irreversibility with the standard of permanence. In some cases, a legal declaration of death is fraudulent.