Anthony Sangiuliano comments on the limits of accommodating pluralism in the legal definition of death.

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Debates about medical assistance in dying concern whether you should get to decide when you will die. But do you also get to decide when you’re dead? Is whether your life has ceased up to you, or is it a fact about the world beyond your personal beliefs?

This question has sometimes exercised moral philosophers, and medical science has offered accounts of when death occurs. But surprisingly, whether someone is dead has no clear answer according to Canadian law. This even though important conclusions often hinge on what the answer is.

I was fortunate to explore these issues recently as a commentator on a fascinating talk by Erika Chamberlain. Chamberlain describes two leading scientific accounts of when death occurs. The first is the traditional cardiorespiratory view, holding that death occurs once a person’s circulatory and respiratory systems fail. The second is the neurological view, which, informed by modern biology, maintains that death occurs when a person’s brain functioning ceases such that they are no longer capable of autonomously maintaining life. The two views can conflict since a person can be “brain dead” but have their cardiorespiratory systems kept alive by machines. This raises a puzzle of whether death occurs at brain death or only later when life support is switched off and cardiopulmonary functioning ceases.

Photo Credit: pixabay. Image Description: AI generated image of circulatory system with human heart.

Chamberlain explained that Canadian law has not definitively settled which conception of death is preferable. Thus, in some cases where a person causes a victim to become brain dead, after which they are kept on life support in a hospital for some time to retrieve their organs before the machines are turned off, the person has been found guilty of causing the victim’s death despite the hospital’s intervention. But although this would seem to suggest that the law embraces the neurological view, the Ontario Court of Appeal has held that when assessing the legal validity of a death certificate for a person who is brain dead but on life support, it is inappropriate to automatically defer to modern scientific opinion. According to the Court of Appeal:

The determination of legal death is not simply, or even primarily, a medical or biological question. The question of who the law recognizes as a human being – entitled to all of the benefits and protections of the law – cannot be answered by medical knowledge alone. Facts about the physiology of the brain-dead patient are needed to determine what obligations are owed to the brain-dead patient, but the enquiry is not ultimately technical or scientific: it is evaluative. Who the common law ought to regard as a human being – a bearer of legal rights – is inescapably a question of justice, informed but not ultimately determined by current medical practice, bioethics, moral philosophy, and other disciplines.

The remarks set the stage for a further, more profound puzzle: Must the legal definition of death accommodate the known religious and moral convictions of the person whose death in question, which might dictate that death never occurs until cardiorespiratory cessation? The Court of Appeal declined to comment on this puzzle since there was an inadequate factual record before it. But the view that legal determinations of death are at bottom normative rather than factual raises the possibility that they can be informed by unorthodox personal beliefs about deaths that seem to conflict with current scientific knowledge.

A liberal society must of course tolerate pluralism about conceptions of the good, including moral and religious conceptions of death. But are there any limits to this sort of “death pluralism”? As I suggested in my commentary on Chamberlain, I think there must be.

Let’s imagine some cases where it seems that we should not accommodate certain beliefs about death. Consider first a belief that death can occur before brain death. Someone might believe that at some point in time they have undergone what philosophers call a “transformative experience,” like falling in love, having children, or being diagnosed with a terminal illness, which they take to have fundamentally altered their personal identity. The person believes that they are just not the same person before and after the relevant experience. “The day I went skydiving,” they say, “the old me died, and I was reborn as a person who is not afraid to take risks.” But then imagine that after skydiving they say to a doctor, “I died and became a different person when I jumped out of that plane, and to commemorate that experience I want you to declare this in a death certificate.” This strikes me as an absurd request.

Now consider a belief that death can occur after cardiopulmonary death. A person might believe an extreme “physicalist” belief according to which their death does not occur so long as their body physically exists up until the point of total decomposition, even if it is not functioning. This person might believe that they can achieve immortality if their body is taxidermized and left on display in perpetuity like the body of Jeremy Bentham. I think most of us, upon seeing the taxidermized body, will still be inclined to declare death.

How do we explain why these beliefs probably shouldn’t be accommodated? I conjecture that it’s because they exceed the limits of brain death as the earliest possibility of death and cardiopulmonary death as the latest possibility. But these possibilities are limits precisely because they have the support of medical science. So, if you agree that these unorthodox beliefs should not be accommodated, that is because we agree that law should defer to medicine after all. Scientific facts set the range of beliefs that the law will be willing to accommodate, and it’s only within that range there can be diverse reasonable and acceptable moral opinions. Death pluralism has factual outer boundaries.

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Anthony Sangiuliano is a Banting Postdoctoral Fellow at the University of Toronto Faculty of Law.