Legalities of Death

Laws change with the times; they attempt to catch up with technology, reconcile nondominant cultural beliefs and morals with the dominant paradigm, and find better ways to protect and control society. Laws, rules of conduct, ethics, religious beliefs, societal norms, cultural morality and expectations, community values, and personal meaning and attitudes all combine to work together to form a labyrinth of confusing and conflicting legalities. These rules and laws govern death in our lives from before conception to after death. Cultural beliefs, rules and laws intersect and modify, add, limit, protect, or confuse the issue at hand. There is no set rule, law, ethical position, or constant to assist in determining what the legalities of death are.

At the beginning of the 20th century, however, most people died at home, and the laws and rules of death were simpler and more attuned to the local cultures and customs. At the beginning of the 21st century, most people in North America die away from home, in hospitals and institutions. As living and dying have become much more complex in North American society, so have the laws and legalities of death.

Technology has surpassed our ability to develop legal rules to set standards governing death. It is difficult for anyone to die, in the normal course of events, without specific decisions being made to withhold or to withdraw medical treatment. Medical technology has trumped culture. The conflicting interests of specific cultures, family, community, and society at large—coupled with a general lack of knowledge of the laws relating to [Page 641]death, and thus a lack of preparation for death—create a miasma around personal choice in death.

Technology allows babies, who in previous times would have died, to be born and to live long lives; technology can extend the life of a person for years beyond what the body alone could do. Definitions of death are no longer valid in the face of modern technology; a body does not have to live on its own. The law does not consistently inform as to who has the right to say when technology is to be released and to rely solely on the strength of the body to determine when death comes.

Definition of Death

The U.S. Federal Uniform Determination of Death Act provides two criteria for determining death: (1) irreversible cessation of circulatory and respiratory functions or (2) irreversible cessation of all functions of the entire brain including the brain stem. The ordinary definition of death is the permanent cessation of functioning of the organism as a whole. However, these definitions often do not provide the necessary explanation of death, and there exists still today legal, medical, ethical, moral, and religious debates over exactly when a person is dead. Sometimes the decision is made by the courts. Terri Schiavo, a married woman in Florida, who was in a persistent vegetative state and living on medical devices, was the subject of a court case, indeed a national debate, between the husband and the woman's parents, as to whether the medical devices should be shut down. The local court allowed the husband to make the decision to remove the medical devices that kept her breathing and her heart working and the woman died. Several states away and months later another woman was in a similar state. This time the parents of the woman and the husband agreed that the medical devices being used to keep their loved one alive were to be disconnected. The woman woke up and lives.

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