CASENOTE: PERSONHOOD AND DEATH: functions like respiration and heartbeat, this ability soon ends

THE PROPER TREATMENT OF ANENCEPHALIC ORGAN
DONORS UNDER THE LAW:
J. Steven Justice
University of Cincinnati Law Review.
University of Cincinnati 62 U. Cin. L. Rev. 1227
Cultures can be judged in many ways, but eventually every
nation in every age must be judged by this test: How did it treat
people? n1
I. Introduction
when the rest of the brain is missing. n23 When her vital organs
began to fail, she was placed on a mechanical ventilator to assist
her breathing, but eventually doctors removed the ventilator, and
she died nineteen hours later. n24
The medical evidence in the record revealed that Baby Theresa
was incapable of developing any cognitive process and may
have been unable to feel pain or experience sensation due to the
absence of the brain cortex. n25 The Florida Supreme Court
noted, however, that this conclusion was disputed.
n26 [*1231]

Doctors informed Laura Campo and Justin Pearson during After careful consideration of the matter, the Florida Supreme
Laura's eighth month of pregnancy that their child would be Court unanimously concluded that it could find no basis to
born with an invariably fatal birth defect called anencephaly. n2expand the common law to equateanencephaly with death. n27
Infants exhibiting this condition are born with only a brainstem The court held that Florida common law recognized the
and otherwise lack a brain. n3 After receiving the news of Baby cardiopulmonary definition of death, meaning that when a
Theresa's fatal birth defect and consulting with physicians, Ms. person's heart and breathing irreversibly ceased, she was dead.
Campo and Mr. Pearson decided to carry the pregnancy to term n28 The court also held that section 382.009 of the Florida
and undergo a caesarean section because they expressly hoped Statutes created a "whole-brain death" exception to the
that the doctors would be able to transplant Baby Theresa's cardiopulmonary definition whenever artificial means were
functioning organs to other dying infants who had a chance to maintaining the heart and breathing. n29 A mechanical
survive. n4 The doctors believed that the caesarean section ventilator, however, was not sustaining Baby Theresa's life at the
would cause less damage to Baby Theresa's organs. n5 times in question; therefore, the court used the cardiopulmonary
standard to determine the question of death. n30 In light of her
Four-pound Theresa Ann Campo Pearson was born on March spontaneous heartbeat and respiration, the court held that she
21, 1992, and consistent with anencephaly, the back of her skull was not dead under Florida common law and therefore any
and upper brain were entirely missing, leaving her brainstem donation of her organs would have been illegal. n31 Thus, the
exposed to [*1228] the air. n6 The risk of infection was very Florida Supreme Court affirmed the result of the trial court, but
high, so doctors wrapped her open skull in medical bandaging. it did not agree with the trial court's determination that section
n7 Baby Theresa's heart beat spontaneously, and she could 382.009 of the Florida statutes, containing the "whole-brain
breathe unassisted at birth. n8 death" standard, applied in this case. n32

After her birth, the parents requested that the doctors declare Baby Theresa's plight drew international attention because of the
Baby Theresa legally dead for the purpose of organ medical, legal, and ethical issues involved. n33 This was the first
transplantation, but they refused. n9 The doctors were concerned time a court in the United States had addressed the question of
that if they "harvested" organs from a live infant, killing it in the
whether anencephalic infants could be considered legally dead at
process, they could incur civil or criminal liability under the birth for purposes of organ donation. n34 Not only were parents
laws of Florida. n10 Under Florida law, Baby Theresa would not of [*1232] anencephalic babies and parents whose infants
be considered legally dead until her heartbeat and respiration needed organ transplants very interested in the court's
had ceased or her entire brain had ceased functioning. n11 The deliberation, but the case also captured the attention of doctors,
baby's physicians and parents were also aware from similar ethicists, lawyers, and virtually all people who became
cases that if they waited to harvest Baby Theresa's organs until acquainted with it. The case implicated practical questions
she was legally dead, the organs would almost certainly be regarding the utility of anencephalic organ donors and the effect
unusable. n12 that the court's decision might have on organ donations in
general. Lawyers wondered how the court's decision might
Faced with this dilemma, the parents decided to file a petition in affect the definition of death and the potential liability of doctors
Florida's Broward County Circuit Court asking for a judicial who performed transplant procedures on anencephalic infants.
declaration that the anencephalic infant was dead at birth so that Ethicists wondered how society would prevent expansion of a
her organs could be removed immediately. n13 After hearing special rule for anencephalic infants to other people who lacked
testimony n14 [*1229] and argument, Judge Estella Moriarty "upper brain" capacity - for example, people in a persistent
denied the request on the grounds that section 382.009(1) of the vegetative state, who might also be declared dead so that their
Florida Statutes did not permit Baby Theresa to be declared organs could be harvested for others in need. n35
legally dead if the child's brainstem was functioning. n15 The
judge did hold, however, that doctors could remove the infant's Yet, for most observers the issue was much more basic. Here
nonvital organs, but none were harvested. n16 were sincere parents, trying to find some meaning and
consolation in the birth of their deformed child, hoping to find
The parents immediately appealed to the Fourth District Court of that meaning through giving life to others. Other parents, whose
Appeals, which upheld Judge Moriarty's ruling. n17 The court dying infants had a chance to live if they received that needed
agreed that Baby Theresa did not meet the legal definition of organ transplant, longed for that rare opportunity. Finally, there
brain death. n18 The parents then appealed to the Florida was Baby Theresa. Her innocent little body was hopelessly
Supreme Court to take action in their cause, but the Supreme dying. We looked at the lives and the pain, vicariously
Court refused to hear the [*1230] case until the Fourth District experiencing the dilemma through the actors, and we wondered
Court of Appeals certified that the case was of "compelling what was right, what was best. n36
public interest." n19 The Fourth District Court of Appeals did
certify the case for immediate resolution, and the Florida This Casenote attempts to answer that question: Considering all
Supreme Court accepted jurisdiction to resolve this case of first of the factors in Baby Theresa's case, did the Florida Supreme
impression. n20 Court make the right decision? As a background to the analysis,
this Casenote describes the factors that the court considered in
Baby Theresa survived only nine days after her birth. n21 The making its [*1233] decision: (1) the medical facts
cause of death was cardiac and respiratory failure. n22 Although ofanencephaly; (2) the history of anencephalic infants as organ
the brainstem has the capacity to control autonomic bodily donors; (3) the current legal definitions of death; and (4) the
prior statutory attempts to equateanencephaly with death. Next, unconscious, n54 but brainstem functions were present in
the Casenote presents a brief synopsis of the court's unanimous varying degrees. n55 In the past, many behaviors of newborns
opinion. Finally, the Casenote discusses the court's decision in were attributed to cerebral activity. Their presence, however, in
light of the medical, legal, and ethical implications of anencephalic infants indicated their brainstem origin. n56
anencephalic organ donation. Furthermore, experience with adult cerebral lesions indicated to
the Medical Task Force that the suffering associated with pain
This Casenote concludes that, in view of the many factors was a cerebral interpretation of the stimuli. Thus, they presumed
involved, the Florida Supreme Court's decision represents a clear that anencephalic infants could not suffer. n57 [*1236]
and safe policy regarding the legal definition of death.
Physicians need to discover better ways to sustain anencephalic
organ vitality until the brainstem dies. When this is 2. Incidence and Need for Anencephalic Organs
accomplished, doctors will be able to harvest much needed
organs from anencephalic infants congruent with current legal Quoted rates of the incidence of anencephaly in the United
definitions of death, and human dignity will be maintained. States vary from .3 to 7 per 1000 births. n58 Assuming the
conservative rate of .3 per 1000 births, 1050 anencephalic
II. The Ideological Arena infants are born per year in the United States. n59
Approximately two-thirds of the anencephalic infants are
A. The Medical Facts of Anencephaly stillborn. n60 If prenatal screening and abortion are uniformly
applied, then the incidence of live-born anencephalic infants that
1. Diagnosis, Etiology, and Prognosis could potentially serve as organ donors would be less than 100
per year, and only a fraction of these would actually be able to
Anencephaly is medically defined as a congenital absence of a provide useable organs to benefit other dying patients. n61
major portion of the brain, skull, and scalp. n37
In anencephaly, cranial tissue is exposed, uncovered by bone or Contrast the annual number of live-born anencephalic infants
skin. n38 The process of deformation begins in the early weeks with the need for pediatric organs. According to Dr. Mark I.
of gestation, and by ten weeks, the process is sufficiently Evans, professor of genetics at Wayne State University, about
advanced to be characteristic. n39 5,000 children need pediatric organ transplants every year in the
United States, but only about 1,200 to 1,300 get transplants. n62
Other neural structures, including the diencephalon, optic The others [*1237] die waiting or are sustained on dialysis. n63
nerves, cerebellum, brainstem, and spinal cord, can also be Nationally, thirty to fifty percent of children under two years of
malformed in the anencephalic infant. n40 Associated anomalies age who are registered to receive transplants die before an organ
include low-set ears, flattened nasal bridge, and cleft palate. n41 becomes available. n64 The United Network for Organ Sharing
Between thirteen [*1234] and thirty-three percent of infants compiled data from 1990 indicating that 573 children up to the
born with anencephaly have defects of nonneural organs, which age of five received organ transplants, and as of March 1992, the
may complicate the care of the infant and make the organs network had 121 infants under a year old waiting for transplants.
unsuitable for transplantation. n42 n65

Doctors can diagnose anencephaly in utero with a high degree of The emphasis on the possible use of anencephalic infants as
certainty. n43 Maternal serum alpha-fetoprotein tests and high- organ donors is heightened when one realizes that the only other
resolution ultrasound tests are both very reliable in the prenatal significant source of organs for children in need of transplants is
diagnosis of anencephaly. n44 If anencephalyis detected in victims of car accidents. n66 Organs of children who die of
prenatal testing, the pregnancy is usually terminated, which serious diseases are not useable because they are usually
dramatically reduces the incidence of live-born infants damaged, and adult organs are not suitable because they are too
with anencephaly. n45 large. n67 Although improvements in the organ procurement
system could increase the number of organs available for
The postnatal appearance of the anencephalic infant is unique, children, it is likely that pediatric organs will remain a scarce
and doctors can make the diagnosis with virtual certainty when medical resource. n68
all the following criteria are met: "(1) A large portion of the
skull is absent. (2) The scalp, which extends to the margin of the B. The History of Anencephalic Infants as Organ Donors
bone, is absent over the skull defect. (3) Hemorrhagic, fibrotic
tissue is exposed because of defects in the skull and scalp. (4) Historically, transplant teams around the world have used four
Recognizable cerebral hemispheres are absent." n46 general approaches to obtain organs from anencephalic infants.
n69 In the first protocol, doctors placed the anencephalic infant
Doctors have been unable to determine the precise cause on maximal life support systems, meaning mechanical
of anencephaly. n47 Geographic factors and maternal ventilation, at birth, and the organs of the infant were removed at
reproductive history influence the incidence and possibly the the first optimal moment regardless of whether the brainstem
causes of anencephaly. n48 had irreversibly ceased to function or not. n70 Under current
state definitions of death, organ harvesting while the brainstem
Most anencephalic infants that are born alive die within a few is still functional would be illegal. n71 [*1238] In 1987, a
days after birth. n49 In a 1990 Medical Task Force Study German effort using this approach removed kidneys from two
on Anencephaly ("Medical Task Force"), the longest confirmed anencephalic infants and successfully transplanted the kidneys
survival of an anencephalic infant was reported as two months. into three donees. n72 After three years, reportedly all three
n50 In most instances, cardiopulmonary arrest occurs before the recipients had functioning kidneys. n73
brainstem ceases [*1235] to function. n51 Even doctors cannot
say how long an anencephalic infant could survive if the doctors In the second protocol, doctors placed the anencephalic infant on
administered standard neonatal intensive care. n52 Some studies maximal life support systems at birth and observed the infant
have shown that anencephalic infants who received maximal until the brainstem function ceased. n74 Then organs were
medical support became more vigorous, and most survived at harvested for transplantation. n75 Using this approach, doctors
least one week with no perceived loss of brainstem functions. in the United States monitored six anencephalic infants for a
n53 seven-day experiment, but only one lost all brainstem functions
within that time span. n76 This [*1239] infant's organs were
Because anencephalic infants lack a functional cerebral cortex, not removed or transplanted because of problems locating an
the Medical Task Force concluded that they were permanently acceptable recipient. n77
 ceases to function, the other bodily systems disintegrate. n97
In the third protocol, doctors gave the anencephalic infant The organs that function in those systems become dysfunctional,
standard (minimal) care until the infant revealed signs of and ultimately the cells that form the structure of the organs
imminent death, and then doctors placed the child on maximal break down to their constituent elements. n98
life support systems and observed it to determine if its brainstem
functions had ceased. n78 Under this approach, doctors in the Because the brain normally stays alive only as long as the heart
United States monitored seven infants for seven days, but only and lungs nourish it, the cardiopulmonary standard traditionally
one lost all brainstem function. n79 Again, organs were not represented the point at which medical science could not stop
transplanted because no suitable recipient was found. n80 the death of the brain and the ultimate disintegration of the
human body. n99 It was the point of no return. With the advent
In a variant of the third protocol, doctors gave the anencephalic of mechanical respirators, however, medical science rendered
infant standard (minimal) care, meaning no mechanical the cardiopulmonary standard inadequate to delineate a "point"
ventilation, until the infant developed cardiac arrest. n81 At that of death. n100 New medical technology could sustain a person's
point, the anencephalic was resuscitated, placed on maximal life circulation and respiration even when the brain had irreversibly
support systems, and observed to see if all brainstem functions ceased to function. n101
had ceased. n82
In addition to the new technology, several related factors also
In the fourth protocol, doctors rendered standard care to the raised the awareness of concerned parties that a new definition
anencephalic infant until the infant died of cardiorespiratory of death was needed. n102 Doctors were concerned about the
arrest. n83 Then, doctors removed the cadaver organs and used need to render appropriate care to patients whose brains had
them for transplantation. n84 Using this approach, anencephalic irreversibly ceased functioning; many felt it was more fitting and
infants have served as the sources of corneas, heart valves, and respectful to remove artificial support when the patient had an
kidneys. n85 irreversible loss of brain function. n103 Doctors were also
concerned about the dedication of scarce and expensive
In a comprehensive review of the medical literature through intensive care resources to people without brain function. n104
1990, the Medical Task Force documented that eighty Such treatment seemed to only prolong the grieving of families,
anencephalic infants had been involved in transplant programs at and it precluded patients who had reversible conditions from
twenty-five different institutions around the world. n86 From gaining access to intensive care. n105
these eighty infants, the Medical Task Force only discovered a
total of twelve successful transplant operations: eleven kidney Organ transplantation, which began to develop in the 1950s and
operations, no liver operations, and one heart operation. 60s, also intensified the doctors' call for a new definition of
n87 [*1240] death. n106 Physicians knew that organs deteriorated quickly in
the absence of respiration and circulation. n107 Therefore, the
After cross-referencing a survey of the techniques of organ best candidates for [*1243] organ donors were otherwise
removal from anencephalic infants with the successful transplant healthy people whose brains had ceased functioning due to some
operations, the Medical Task Force determined that the only kind of trauma but whose organs were kept vital through
clearly successful approach was to place anencephalic infants on artificial life support. n108 Doctors needed a new definition of
maximal life support at birth and harvest their organs as soon as death that would allow them to declare these patients dead while
technically possible, without regard to the presence of a they were maintained on life support, thereby providing suitable
functioning brainstem. organs for transplant. n109

C. The Legal Definition of Death The new medical technology also raised many questions in the
legal community. n110 For instance, spouses of permanently
Commentators clearly acknowledge the need for pediatric comatose patients, who had irreversible loss of brain function
organs and the potential for using anencephalic infants as organ and were supported by artificial respiration, wanted to collect
donors. n88 The focus of the medical and legal debate is how to death benefits from insurance companies that denied the benefits
use anencephalic organ donors successfully and legally. Medical because the patients were not dead under the cardiopulmonary
science has shown that the most successful way to procure standard. n111 In the criminal context, a defendant, who had
anencephalic organs for transplant is to harvest them while the shot a victim in the head, leaving the victim in an irreversible
infant's brainstem is still alive. n89 But is this approach legal? coma sustained by life support, sought acquittal from the court
on the theory that the doctor's removal of the victim from
Every state in the United States has adopted the Uniform artificial life support was the superseding cause of death. n112
Anatomical Gift Act (UAGA), which states that organs for
transplantation can only be removed from the donor "upon The first important response to these and similar concerns that
death." n90 Thus, if [*1241] the law defined an anencephalic the new medical technology raised was a report that an ad hoc
infant with a functional brainstem as dead, then no legal barrier committee of the Harvard Medical School issued in 1968 that is
would exist to the harvesting of anencephalic organs under the now referred to as the "Harvard Criteria." n113 This committee
most successful protocol. Current legal definitions of death, proposed that the cessation of brain function, what they called
however, do not include the anencephalic infant with a "irreversible coma," was an adequate alternative to the
functional brainstem. n91 cardiopulmonary standard for the determination of death when
artificial means were used to maintain heartbeat and breathing.
The traditional definition of death, followed by both the medical n114 The report provided some criteria that would aid doctors in
and legal communities, was based on a cardiopulmonary this determination, but more was necessary to help the society at
standard: a person was considered dead when the heartbeat and large. n115 [*1244]
breathing irreversibly ceased. n92 The common law espoused
this standard, and it provided a clear guide for the functioning of In response to the fundamental social and legal questions that
medical and legal societies. n93 the new medical technology was raising, commentators felt that
the need for a new uniform law was apparent. n116 The result
The cardiopulmonary standard gives the impression that death is was the drafting of the Uniform Determination of Death Act
a definite point. n94 In reality, however, death is not a point but (UDDA). n117 Most states have now adopted by statute or case
a [*1242] process, a disintegration of the cooperative systems law a definition of death identical or similar to the one in the
that comprise the human body. n95 The brain is the organ that UDDA. n118 The UDDA provides that "an individual who has
integrates all the other bodily systems. n96 Thus, when the brain sustained either (1) irreversible cessation of circulatory and
respiratory functions, or (2) irreversible cessation of all
functions of the entire brain, including the brainstem, is dead. A After delineating the facts and the procedural posture of the
determination of death must be made in accordance with case, the court described the medical characteristics
accepted medical standards." n119 It is significant to note that of anencephaly, based predominantly on a report by the Medical
the UDDA incorporates both the cardiopulmonary standard from Task Force on Anencephaly. n139 Most notably, the court
common law and a new whole brain standard to define death recognized the anatomical structures that define the diagnosis
when the patient is sustained on artificial life support. n120 of anencephalyand distinguish it from other congenital
The [*1245] statute expressly includes the brainstem as a part conditions. n140 The court agreed with the doctors that Baby
of the whole brain death standard. n121 Thus, in the case of Theresa clearly met the diagnostic criteria
anencephalic infants who have artificial life support maintaining of anencephaly.n141 [*1248]
their hearts and lungs, their brainstems must have irreversibly
ceased to function before doctors can declare them dead. n122 If Furthermore, the court accepted other reported findings of the
the anencephalic's heart and lungs are spontaneously functioning Medical Task Force regarding the survival rates and duration of
without the aid of artificial support, then the cardiopulmonary anencephalics, n142 the physiological consequences of the brain
prong of the UDDA will determine the point of death. n123 In deformity, n143 the ability of anencephalics to suffer pain, n144
either case, the Uniform Anatomical Gift Act will not allow and the frequency of successful transplants from anencephalic
doctors to remove an anencephalic's organs for transplant until donors. n145 Finally, the court realized both the definite need
the infant is dead. n124 Medical experience, however, has for infant organs for transplant and the general agreement that
revealed that if doctors delay the harvesting of anencephalic anencephalics have ceased to be suitable organ donors by the
organs until the infants are legally dead, then the organs are not time they meet the whole brain death standard. n146 [*1249]
suitable for transplant. n125
After summarizing the medical facts of anencephaly, the court
D. Unsuccessful Statutory Attempts began its legal analysis, describing the development of Florida's
legal definitions of death in contrast with those of other states.
Because anencephalic transplant efforts were restricted by the n147 While many states had recognized the cardiopulmonary
legal definition of death, some lawmakers decided that the best standard for death at common law, n148 Florida had never
solution was to change the law. n126 This approach was explicitly recognized any definition of death as a component of
attempted in California, New Jersey, and Florida. its common law. n149 Furthermore, although many states
subsequently adopted the UDDA and others enacted
In 1986, California state senators introduced a bill to amend the substantially the same language, n150 Florida did neither. n151
statutes that represented California's adoption of the UDDA.
n127 The amendment definedanencephaly and expressly Instead, the Florida legislature enacted a statute, section
declared that "an individual born with the condition 382.009, that only applied to the determination of death when
of anencephaly is dead." n128 The introduction of the bill artificial means sustained the patient's life, thus not
created a great deal of controversy and eventually led the incorporating a cardiopulmonary standard. n152 The statute
sponsors to eliminate the proposed amendment. n129 Instead, allowed doctors to declare a person dead when the individual
the legislature enacted an amended version of was on artificial life-support and her whole brain, including the
the [*1246] proposal that required a state panel to examine the brainstem, had ceased to function. n153 The statute did not
legal, medical, and ethical considerations involved in the mandate that doctors make a declaration of death in those
original proposal. n130 The UDDA in California was not circumstances, and the statute did not state that it promulgated
amended to equate anencephaly with death. n131 the exclusive standard for determining death. n154 The court
noted that the legislators' use of the permissive phrase "may be
A New Jersey lawmaker, Assemblyman Walter Kern, Jr., determined" coupled with their later statement, in section
introduced a similar bill in the New Jersey legislature in 1986 382.009(4), that this statute was "not the exclusive standard for
that would have permitted organ procurement from anencephalic determining death" clearly revealed that the legislature had
infants. n132 Contrary to the proposed California bill, the New envisioned other [*1250] ways of defining death. n155
Jersey bill sought to achieve the same result through amendment Furthermore, the court concluded that this statute certainly
of New Jersey's version of the Uniform Anatomical Gift Act would not apply to an anencephalic infant whose heart and lungs
(UAGA). n133 While the UAGA mandates that doctors can only were operating without the aid of artificial life support. n156
harvest organs for transplant upon the death of the donor, the
proposed amendment would have eliminated this requirement in The court next examined analogous areas of Florida law that
the case of anencephalics. n134 This bill was tabled in might aid it in determining a definition of death with regard to
committee. n135 anencephalic infants. n157 After examining the definitions of
"live birth" n158 and "fetal death" n159 under Florida's Vital
In 1988, the Florida legislature discussed a bill that would have Statistics Act, the court determined that Baby Theresa was a
defined death as inclusive of an infant born "live birth" and not a "fetal death." n160
with anencephaly, thus allowing for organ procurement from
anencephalics who previously did not meet death criteria, but Similarly, in cases alleging wrongful death under Florida tort
this bill also did not get beyond committee. n136 Thus, to this law, the court noted that fetuses were not recognized as
point no state has enacted law that would "persons" and were not "born alive" until they had a separate
equate anencephaly with death or allow for the removal of vital and independent existence from the mother. n161 By analogy,
anencephalic organs prior to the death of the infant. [*1247] this evidence supported the conclusion that Baby Theresa was
"alive" because she had a separate existence from her mother's
III. The Florida Supreme Court's Opinion womb and was capable of breathing and maintaining a heartbeat
independent of her mother's after her birth. n162 The court
In a unanimous decision, Justice Kogan, writing for the court, emphasized that this law was only analogous and not dispositive
framed the issue as whether an anencephalic newborn is of the issue in this case. n163
considered dead for purposes of organ donation solely by reason
of its congenital deformity. n137 The parents of Baby Theresa Furthermore, the court recognized that in 1988 the Florida
wanted the court to change the law in Florida, either to declare legislature discussed a bill n164 that would have defined death
anencephalic babies dead upon birth by virtue of their defect or as inclusive of anencephaly, but the bill did not get beyond
declare the babies dead when they stopped breathing on their committee. n165 [*1251] Therefore, the court concluded that
own. n138 as recently as 1988 no consensus existed among the Florida
legislators regarding the issue at hand. n166 of anencephalic infants as organ donors, the ethical issues raised,
or the legal and constitutional problems implicated. n192 Faced
After considering the potentially binding sources, the court with no clear direction from the medical, ethical, or legal
concluded that its research had not disclosed any federal or state communities, the court found no basis to expand the common
law or case precedent that was arguably on point or analogous to law to equate anencephaly with death. n193 The consequences
the issue in this case. n167 In the absence of binding authority as of a decision made in light of such an "utter lack of consensus"
to whether an anencephalic infant was alive for purposes of outweighed the possibility of saving a few infants' lives using
organ donation, the court decided to broaden its consideration organ transplants from anencephalics. n194
and examine the public policy issues at stake. n168
Because Baby Theresa's heart was beating and her lungs were
Initially, the court clarified the status of the definition of death in breathing without the aid of artificial life support when the
Florida law by adopting the cardiopulmonary standard as the family sought to donate her organs, the Florida statute on the
common law definition of death whenever section 382.009 was determina [*1255] tion of death by the "whole brain standard"
not applicable. n169 If artificial life support sustained the did not apply to her case. n195 The newly adopted
patient, then section 382.009 would govern the determination of cardiopulmonary definition, however, did apply, and under that
death. n170 Otherwise, a person who sustained irreversible common law standard Baby Theresa was clearly not dead when
cessation of circulatory and respiratory functions would be organ harvesting was considered. n196 Therefore, any donation
considered dead, so long as the determination was made in of her organs would have been illegal. n197
accordance with accepted medical standards. n171
Justice Kogan closed the court's opinion by noting that although
Thus, the question became whether there was a strong public the trial court reached the correct decision, its reliance on section
policy reason for the court to create an additional common law 382.009 of the Florida Statutes was inappropriate because
standard applicable to anencephalics. n172 The court stated that artificial life support did not sustain Baby Theresa's life at the
it could [*1252] alter the common law, but that it did so only times in question. n198
when public necessity demanded it or when it was required to
vindicate fundamental rights. n173 After reviewing the medical,
ethical, and legal literature on anencephaly, the court concluded
that no consensus existed on whether granting the parents'
request would better serve a public necessity or fundamental IV. Discussion
rights. n174
In T.A.C.P., the Florida Supreme Court faced an issue that
Regarding the presence of a public necessity, the court attracted international attention: Should anencephaly be equated
acknowledged much ambivalence. n175 On one hand, the with death for purposes of organ donation? n199 It was a case of
altruistic intent and compassion of the parents obviously touched first impression, not only in Florida, but also in the United
the court; but alternatively, the court faced medical literature States. n200 The medical, legal, and academic communities, as
that revealed an unresolved controversy. n176 Even medical well as society at large, were interested in the decision of the
specialists could not agree whether anencephalic organs could or court. n201 The decision would not only have an effect on the
should be used in transplants. n177 [*1253] use of anencephalics as donors and the possibility of saving a
few dying children's lives, but it would also say something about
While no one questioned the need for transplantable infant how society values human life and what it means to be a person.
organs, n178 the court found several other factors dispositive of
whether the common law definition of death should be altered to Finding no precedent or persuasive analogue upon which to rely,
apply to anencephalics. n179 First, some medical commentators the court based its decision on public policy considerations.
argued that anencephalic organs were seldom usable. n180 n202 Obviously, the court sought a consensus opinion within the
Therefore, even if the law was changed, the number of possible medical, ethical, and legal communities that might indicate a
organ transplants from anencephalics would be so small that the public necessity to expand the common law or point to the need
enterprise would be highly questionable in light of the to vindicate a fundamental right, but the court found no
significant ethical problems at stake. n181 Second, other authors consensus within any of [*1256] these communities. n203
noted that prenatal screening is continuously reducing the Thus, it declined to expand the common law definition of death
number of anencephalics born each year in the United States. to equate anencephaly with death. n204
n182 Thus, as time passes, anencephalics are less likely to be a
significant source of infant organs. n183 Third, some To examine the validity of the court's conclusion, this discussion
commentators frankly called for a moratorium on the considers the general arguments proffered in the medical,
redefinition of death in this context until a consensus did ethical, and legal communities in relation to the use of
emerge. n184 Fourth, a presidential commission in 1981 called anencephalic infants as organ donors. It examines the issue
for strict adherence to the definition of death delineated in the through the court's eyes to determine whether it made the best
Uniform Determination of Death Act. n185 This definition decision for all concerned.
would preclude equating anencephaly with death. n186 Fifth,
ethicists argued that treating anencephalics as dead made them A. The Medical Debate
"nonpersons." n187 This rationale heightened the concern of
some ethicists regarding parallel applications and expansions of Examination of the medical literature on anencephaly reveals
the [*1254] rule commonly referred to as "slippery slope" that commentators do agree on some issues. First, doctors have
problems. n188 If the court determined that anencephalics were reached consensus regarding the diagnostic criteria
dead because they lacked cortical brain function, then that same for anencephaly. n205 The congenital deformity is clearly
rationale might be applied to all other persons who lacked defined. n206 Second, anencephaly is invariably fatal. n207
cognitive capabilities. n189 Some commentators purported that Although most anencephalics are stillborn, n208 the remaining
the slippery slope was quite real because doctors had proposed infants usually die within a few days after birth. n209 Third,
transplants from infants with defects less severe many otherwise healthy infants and children are in need
than anencephaly. n190 of [*1257] transplantable pediatric organs. n210 Finally, an
extensive survey of the medical literature to date has confirmed
The court did not articulate these factors to argue for the that the most successful protocol for procuring transplantable
correctness of any particular view. n191 Instead, the court anencephalic organs is to place the infant on maximal life
wanted to reveal that no consensus existed regarding the utility support at birth and harvest the needed organs as soon as it is
technically feasible, disregarding the presence of brainstem
function. n211 In other words, currently, the most successful The best way to understand this ethical debate is to recognize the
transplant method involves removing the organs from the underlying presuppositions of either side. Those who oppose an
anencephalic infant while it is still legally alive. n212 expansion of the concept of death to include live-born
anencephalics see personhood as biologically based. n232 All
Consensus in the medical community, however, ends here. human beings are persons because of their unique morphology,
Despite the general agreement regarding all these factors, their classification as a member of the species homo sapiens.
commentators are unable to find common ground on the utility n233 They do not lose their personhood because they are
of anencephalic organ transplants. n213 Dr. Alan Shewmon, physically deficient in some capacity. n234 Thus, anencephalics
from the Departments of Pediatrics and Neurology of the UCLA like Baby Theresa are persons despite their physical deficiencies
Medical Center, estimates that given the annual rate of and should be afforded the full rights of personhood, meaning
anencephalic births in this country and the current state of their death should be determined consistent with the standards
transplant science, the annual number of children who would employed for all other human beings. n235
actually benefit from anencephalic kidneys, hearts, and livers is
only 0, 9, and 2, respectively. n214 While it is likely that these On the contrary, those who advocate a declaration that
figures would increase as transplant techniques improved, this anencephalics are dead at birth see personhood as
gain would also be offset due to a decrease in the frequency of nonbiologically based. n236 Persons are a subset of humanity.
anencephalic births. n215 Less anencephalics will be born with n237 Those human beings who possess particular attributes
the increased use of prenatal screening. n216 These results will attain the status of personhood. n238 Rationality, self-
not make a significant difference to the annually estimated 5,000 consciousness, futurity, and the capacity for desires about one's
children who need organ transplants [*1258] in this nation future are some of the characteristics that commentators often
alone. n217 Notably, these estimates greatly influenced the mention as sufficient conditions for the status of personhood.
court. n218 n239 Thus, because anencephalics like Baby Theresa arguably
lack cognitive capabilities, their cerebral hemi [*1261] spheres
Opponents argue that the number of children who would benefit being absent, they are not persons and should not be afforded the
from anencephalic donors could actually be much higher if the rights of persons. n240
courts or the legislature removed the legal strictures that prohibit
organ procurement from live anencephalics. n219 A change in Those who see personhood as biologically based argue that
the legal climate itself would encourage more expectant mothers declaring anencephalics dead at birth violates the infants' right to
to complete their pregnancies, thus potentially providing more life and the high valuation of human life that has been common
anencephalic organs for transplantation. n220 Less women in Western society for centuries, namely, that persons are ends
would choose to abort their anencephalic fetuses after prenatal in their own right and are not to be treated as means even to
detection if it was easier to give meaning to their infants' births noble ends. n241 Immanuel Kant articulated this idea in the
through the donation of their organs. n221 Moreover, doctors form of his second categorical imperative: "Act so that you treat
could encourage their pregnant patients not to abort. n222 humanity, whether in your own person or in that of another,
Although proponents of using anencephalics as donors do not always as an end and never as a means only." n242 Thus, if the
usually recommend the use of financial incentives in this area, court declared anencephalics dead at birth so that doctors could
entrepreneurs have likely considered the idea. n223 harvest their organs for transplantation to save other dying
children, anencephalics would be treated solely as a means to an
Those with possibly purer motives, who despise the idea of end, albeit noble, violating the Kantian ethic.
placing a price on an anencephalic's body parts, argue in favor of
the legal change from a qualitative perspective. n224 The Adherents of nonbiologically based understandings of
assertion is that the question of whether to use anencephalic personhood do not believe that declaring anencephalics dead at
donors is one that decisionmakers should consider independent birth and harvesting their organs for transplant violates the
of the expected quantitative benefits because the saving of even Kantian ethic. They argue that the Kantian ethic only applies to
one life is a significant achievement. n225 rights-holders, persons. n243 They claim that when Kant spoke
of persons he did not have in mind non-self-aware humans. n244
This contention bites with admirable altruistic flavor, but the Thus, to apply his standard to anencephalic infants is beyond the
court had to consider more than the medical possibility of saving scope of his writings. n245
a life. The potential medical opportunities had to be balanced
with [*1259] the potential ethical costs on society at large of Moreover, these same commentators argue that if you accept the
changing the accepted definition of death with respect to premise that only sentient human beings are persons, then
anencephalic infants. n226 anencephalic infants have no rights, including the right to life,
because only persons have rights. n246 A thing, nonsentient
B. The Ethical Dilemmas matter, does not have rights because it has no interests to protect.
n247 Thus, declaring anencephalic infants dead at birth and
The T.A.C.P. court recognized the focus of the ethical debate in harvesting their organs does not take away their right to life or
this area - what it means to be a "person." n227 Some violate the Kantian ethic because under this view, the infant - as
commentators argue against the attempt to declare anencephalics a nonperson - never possessed this right. n248 [*1262]
dead on the basis of their congenital birth defect because such a
declaration is tantamount to calling them "nonpersons." n228 Those opposed to the view that anencephalics are nonpersons
Proponents of such a declaration often view anencephalics as without a right to life point out that this line of reasoning is
"things" or, in the words of one author, "forms of living human premised upon the assumption that anencephalic infants are
protoplasm" that can be used like "a cutting from a living tree or nonsentient, a controverted issue. n249 While the Medical Task
... a vegetable." n229 Opponents argue that a problem arises Force declared that anencephalics were permanently
when we take the next logical step. Once we declare unconscious, Dr. Alan Shewmon and others strongly contend
anencephalics to be nonpersons - dead for purposes of organ that this conclusion is inherently unverifiable. n250 They note,
transplantation by virtue of their brain defect - where will we, as however, that what is known about the functional capacities of
a society, draw the line between those who are considered the brainstem, particularly in newborns, raises doubt regarding
"persons" and those who are not? n230 Some commentators are this conclusion. n251 In making the conclusion that
concerned that this is a slippery slope. Indeed, to make such a anencephalics are permanently unconscious, doctors have
declaration regarding anencephalics opens the door to all other applied adult-derived neurophysiological principles to
people who lack cognition for whatever reason. n231 [*1260] anencephalic infants. n252 Animal studies have suggested that
the phenomenon of developmental neuroplasticity could, persistent vegetative state and possibly infants with other severe
however, in the congenital absence of cerebral hemispheres, birth defects. n264 Such an amendment might produce
allow brainstem structures to assume somewhat more complex decreased respect for human life in other areas. n265
brain activity than would ordinarily be the case. n253 Thus, it is
possible that anencephalics could have some level of Some theorists are concerned that the ambiguity surrounding a
consciousness, but to compare their mental abilities to change in how death is defined in the case of anencephalics
decerebrate adults, ignoring the neuroplasticity of newborns, is could backfire on the transplant movement in this country. n266
to make an unfair comparison. n254 Anencephalics are The confusion could trigger public fears that, in addition to
neurologically much more similar to normal infants than to anencephalics, organs are or will be taken from other humans
decerebrate adults. n255 Even in normal newborns, the cerebral that are not wholly brain dead. n267 The result might be a
cortex is much less developed than the brainstem, and the actual decline in the number of overall organ donations, thereby further
functional abilities of normal newborns and anencephalics are reducing the potential gain in lives saved from the change in the
quite similar. n256 The difference between normal infants and law. n268
anencephalics lies in their potential for future cognitive
development. n257 Advocates of a nonbiological definition of personhood attempt
to allay these concerns by distinguishing anencephalics from
Arguably, therefore, if one affords the status of personhood to people in a persistent vegetative state. They argue that despite
normal newborns on the basis of their actual functional abilities, the state of permanent unconsciousness and the loss of all
the same status should be accorded to anencephalic infants. If cerebral functions, people in a persistent vegetative state should
one claims that normal newborns have some level of be respected as persons because they once had a legitimate
consciousness, then the similar abilities of anencephalics interest in receiving care in the event they ever reached such a
coupled with the phenomenon of neuroplasticity, call for the state. n269 Anencephalics, the theorists argue, have no prior
same declaration regarding the consciousness of interests to protect. n270 Furthermore, the Medical Task Force
anencephalics. [*1263] attempted to distinguish anencephaly from a persistent
vegetative state on the basis of medical criteria. n271 Despite
Some who espouse a nonbiologically based understanding of this effort, the Medical Task Force clearly stated that in
personhood will immediately respond that the personhood of both [*1265] conditions the patients were in a permanent state
normal newborns is not premised upon their actual cognitive of unconsciousness with a loss of all cerebral cortical functions.
capabilities, but upon their potential for cognitive development - n272
a possibility that is lacking in anencephalics. n258 Thus, the
argument is that a normal newborn is a person now because she Moreover, proponents of the use of anencephalics as organ
has the potential to meet the full qualifications for personhood in donors argue thatanencephaly is unique, and the diagnosis is
the future. One should question, however, the logic of attributing clear. n273 They argue that a change in the law to declare
an identity to someone because of her potential to qualify for anencephalics dead at birth for purposes of organ transplantation
that identity. n259 I am not an attorney now because I have the will not place other infants with defects less severe
potential to become one someday. thananencephaly at risk. n274 Some doctors have noted,
however, that the slippery slope is quite real. n275 Evidently,
Some commentators that espouse a nonbiologically based view while Loma Linda University Medical Center was performing
of personhood, particularly those who also advocate the right to its research on using anencephalic infants as organ donors, some
abortion, find the attempt to base the rights of newborns on their physicians contacted the hospital suggesting that the program
potential for development quite problematic. People who oppose enroll infants with less severe defects than anencephaly. n276
the right to abortion commonly justify their position on the
potential that fetuses have for becoming cognizant human A final problem that proponents of a nonbiologically based
beings. n260 If personhood and its attendant rights are to be theory of personhood face is that current definitions of death are
conferred on the basis of the potential for development, then congruent with and expressive of a biologically based theory of
those who substantiate the personhood of normal newborns personhood. n277 The legal doctrine of live birth and the whole
based on their potential for development would contradict brain death standard seem to reject the position that some forms
themselves to say that normal unborn fetuses were not persons of human existence are not equivalent with personhood. n278
and could be aborted. These normal fetuses obviously have the Furthermore, both the ABA and a 1981 presidential commission
potential to develop as well as normal newborns. have urged adherence to the UDDA's definition of death, which
would preclude a nonbiologically based definition of
To avoid this logical inconsistency, some who advocate a personhood and the subsequent equating of anencephaly with
nonbiologically based understanding of personhood and the right death. n279
to abortion base the personhood of the normal newborn on the
interests that third parties, such as the newborn's parents, have in Perhaps the only clear conclusion evident in this parade of
the child's existence. n261 This is not a sound line of reasoning ethical arguments is the same conclusion that the T.A.C.P. court
either because once one looks beyond the infant for the source of drew: currently, there is no ethical consensus concerning the use
its rights - in this case, to the interests of the parents - then the of anencephalic infants as organ donors that would advocate a
need to distinguish anencephalics from normal infants is declaration that anencephalics are dead at birth. n280 When the
obviated. If the normal newborn has the right to life because of court com [*1266] bined the lack of ethical consensus with the
the interests of third parties, then the anencephalic arguably has questionable medical utility of anencephalic donors, even under
the same right if third parties so desire. the most successful protocol, the court certainly did well to
question the presence of a public necessity to
Another objection of those who advocate a biologically based equateanencephaly with death.
understanding of personhood is that nonbiologically based
classifications raise a slippery slope problem. n262 Once the The court appears to have relied predominantly on medical and
concept of personhood is removed from the strictures of ethical arguments in reaching its conclusion not to expand the
biological structure, the question is where to draw the line common law of Florida. n281 Before it even considered these
between persons and nonper [*1264] sons. n263 If the law is factors, it noted that it had found no binding legal authority or
changed to declare anencephalics dead for purposes of organ legal analogy that was arguably on point to guide it in this
transplantation because they are nonpersons, then doctors, decision. n282 The court also noted that it found no consensus
legislators, or the courts could use the same rationale to declare regarding the legal or constitutional problems that such a change
others dead for the same purposes, including persons in a in the common law would raise, and it did not see fit to delineate
what these problems might be. n283 In the last portion of this court recognized that parents could consent to surgical
discussion, this Casenote presents some of the legal analogues treatments upon the person of their minor, but the power to
that the court could have considered for guidance, and it will consent was limited to medical treatment. n308 The removal of
reveal some of the potential legal/constitutional problems that a Anne's kidney was certainly not treatment for her illness. n309
change in the law might have implicated. Relying on Strunk, however, the court held that there was strong
evidence that Anne would receive substantial psychological
C. Legal Analogues and Constitutional Problems benefits from donating her kidney to her brother, and it
authorized the procedure. n310
1. Legal Analogues
Contrary to these decisions, other courts have refused to
authorize transplants from incompetent donors. In the case of In
After examining Florida's Vital Statistics Act, n284 Florida tort re Guardianship of Pescinski, Janice Pescinski Lausier, sister
law, n285 a 1988 failed attempt of the Florida legislature to and guardian of her incompetent brother, Richard Pescinski,
define death to include anencephaly,n286 and other suggested who had been committed to the state hospital for catatonic
analogous sources of law to find guidance, n287 the Florida schizophrenia, petitioned the court for permission to remove a
Supreme Court determined that no federal or Florida law or kidney from Richard for transplant to his sister, Elaine Jeske.
precedent was on point or applicable by analogy to whether an n311 Elaine had both of her kidneys removed due to kidney
anencephalic infant was dead for purposes of organ donation disease, and she needed a transplant. n312 The court denied the
because of its congenital deformity. n288 petition, refusing to adopt the substituted judgment doctrine.
n313 The court concluded that an incompetent should have his
The most analogous case law has arisen in the context of own interests protected, and in the absence of real consent on his
involuntary bodily intrusions. Normally, under the United States part, where no party has established any benefit to him, the court
Constitution a person has the right to bodily integrity. n289 In did not have authority to approve the operation. n314
the presence of some competing interests, however, courts have
held that minor in [*1267] trusions such as compulsory A Louisiana court faced the same issue in In re Richardson.
vaccines n290 and mandatory blood tests n291 are permissible n315 Roy Richardson was a seventeen-year-old incompetent
in proscribed circumstances. More significant bodily invasions who suffered from mongolism. n316 His sister Beverly, thirty-
are usually not allowed without permission unless the intrusions two years of age, suffered from inflammation of the kidneys,
are in the defendant's best interests. n292 and doctors recommended [*1270] a kidney transplant. n317
Roy's parents petitioned the court to allow doctors to remove
In the context of organ donation, only one court has faced the one of Roy's kidneys for donation to Beverly; the court denied
issue of whether a person can be compelled against his own the petition, concluding that the surgical intrusion and loss of a
wishes to donate an organ solely to benefit another. In McFall v. kidney would not be in Roy's best interest. n318 Thus, neither
Shimp, thirty-nine-year-old Robert McFall suffered from a fatal his parents nor the courts could authorize the transplant
bone marrow disease. n293 His only chance to survive was to procedure. n319
receive a bone marrow transplant, but the only compatible donor
was his first cousin, David Shimp, who refused to donate his Therefore some case law, albeit controverted in other
marrow. n294 McFall asked the court to compel Shimp to jurisdictions, has supported the conclusion that doctors can
undergo the transplant, but the court denied the request, basing remove organs from incompetent donors for transplantation if
its holding on the principles that our society respects the the parents consent, the donee is an immediate family member,
individual and that society and government exist to protect the and the facts support the conclusion that the donor could benefit
individual from invasion and hurt by others. n295 from the donation in some realistic way. An important common
denominator, however, in each of these cases seriously hinders
In McFall, Shimp was an adult who could give or withhold his the utility of applying this legal analogy to anencephalic infant
permission to donate his tissue, but anencephalics are quite donors. In none of these cases was the surgical removal of the
different because they are unable to express such a desire and needed organ life threatening. n320
their infant n296 or incompetent n297 status would prevent the
legal validity of such an assertion even if they could speak. n298 Applying this line of legal reasoning to incompetent
Under these circumstances, [*1268] some courts have allowed anencephalic donors, a court could allow doctors to harvest only
an incompetent to donate an organ to a member of the nonvital anencephalic organs for transplantation while the infant
immediate family if the parents or guardians so request and the is still legally alive. Even nonvital organs could be removed only
donation is arguably in the best interests of the incompetent. if the parents of the anencephalic infant consented, if the donee
n299 The courts usually made these determinations based on the was an immediate family member, and if the organ donation was
substituted judgment doctrine. n300 realistically beneficial to the anencephalic donor. If all of those
conditions were met, only then could the court exercise its
In Strunk v. Strunk, the Kentucky Court of Appeals held that a substituted judgment and permit the removal of nonvital organs.
kidney could be removed from Jerry Strunk, a twenty-seven-
year-old incompetent person, and transplanted into his twenty- In Baby Theresa's case, Broward County Circuit Judge Estella
eight-year-old brother, Tommy Strunk, who was suffering from Moriarty essentially reached this conclusion. n321 She ruled that
kidney disease. n301 Jerry's I.Q. was equivalent to that of a six- Baby Theresa's nonvital organs could be transplanted while the
year-old child. n302 Jerry's mother petitioned the court to allow baby was [*1271] still alive, which meant that one kidney
the organ donation because it would not only be beneficial to could be removed. She did not require that the donee be an
Tommy but also to Jerry, who was very psychologically immediate family member. n322 The difficulty, however, is that
dependent upon Tommy. n303 The court agreed because it one kidney from an anencephalic infant is so small that the
found, based on substantial evidence, that the operative recipient could be no older than about six months. n323 At the
procedures were in the "best interest" of Jerry. n304 time of Baby Theresa's life, there were only five patients that
young in the United States that were on dialysis, and none of
Similar circumstances arose in Little v. Little. n305 Anne Little them was a good tissue match. n324 Baby Theresa's case
was a fourteen-year-old incompetent child with Down's illustrates the serious utility problems caused by limiting
Syndrome. n306 [*1269] Her mother, Margaret Little, anencephalic donation to nonvital organs. While the donation of
petitioned the Texas Court of Civil Appeals to allow the removal an anencephalic kidney is legally possible, a successful
of a kidney from Anne's body for transplant into Anne's younger transplantation would be extremely rare.
brother, who suffered from endstage renal disease. n307 The
Recognizing this legal context and the medical facts Thus, the Supreme Court has little reason to accept or give
of anencephaly, Baby Theresa's parents knew that the only serious weight to varying state versions of the concept of
means to increase the potential benefit of an organ donation by personhood or the right to life. n339 Arguably, though, if the
Baby Theresa and other anencephalic infants was to ask the Court did look to state definitions of death and case law
court to equate anencephaly with death so that doctors could construing determinations of [*1274] death, it would find no
harvest her heart, liver, and kidneys while the organs were still state law that would declare anencephalic infants as dead or
viable. No other legal strategy held statistical promise for nonpersons by virtue of their congenital deformity. n340
successful transplantation. But on the basis of extant case law,
the Florida Supreme Court found no precedent that would Nonetheless, the question still remains: What analysis would the
arguably allow them to declare live incompetents, like Supreme Court utilize to define the meaning of "person" in the
anencephalics, dead for the purposes of organ transplantation. Fourteenth Amendment? n341 The constitutional literature is
n325 Their legal conclusion was correct. curiously silent on the issue. n342 In Roe v. Wade, the Supreme
Court briefly considered the issue of personhood as it related to
2. Constitutional Problems fetuses. n343 The conclusion of the Court that fetuses were not
persons under the Fourteenth Amendment was based on a
The Florida Supreme Court realized that a decision to finding that abortion statutes at the time of the Amendment's
equate anencephaly with death would implicate constitutional adoption were liberal, meaning that the Framers probably did
problems, and a lack of consensus regarding these problems was not intend the term person to include the unborn. n344 The
a salient factor in their ultimate decision. n326 Although the Court possibly could reach the same conclusion regarding
court did not provide examples or argumentation to elucidate anencephalics.
which constitutional problems were implicated, a brief
consideration of the most significant potential constitutional Some evidence exists that the common law did not regard
problem may help the reader foresee other legal barriers that seriously defective infants, called "monsters," as persons entitled
future proponents of equating anencephaly with death may face. to the protection of the law against homicide. n345 By the time
Any attempt to change the status of anencephalic infants through of the Fourteenth Amendment's adoption in 1868, however,
an amendment of a state's definition of death will certainly some jurisdictions no longer adhered to that position. n346 Thus,
implicate constitutional due process issues. Because life is a evidence of the Framers' possible intent regarding the
substantive right of every person, the relevant in [*1272] quiry personhood of seriously defective infants is not clear.
in this case involves substantive due process, a concept
grounded in the Fourteenth Amendment as applied to the states. Some argue that in those jurisdictions who by 1868 had decided
n327 to attach personhood at the point of birth, meaning emergence
from the mother with some biological function, the competing
The Fourteenth Amendment of the United States Constitution interests that shaped the choice to define personhood in this way
provides that no "State shall deprive any person of life, liberty, were not the same as those that surround the debate today
or property, without due process of law; nor deny to any person regarding the status of anencephalics. n347 In those days, the
within its jurisdiction the equal protection of the laws." n328 choice of "birth equals personhood" was made to protect
Should a state legislature change the laws, newborns from those who might kill them or behave negligently
equating anencephalywith death, opponents of the change could toward them. n348 These theorists argue that if organ transplant
claim that an anencephalic infant's substantive due process right technology had been available in the mid-nineteenth century, the
to life was violated by such a court ruling or statute. n329 legislatures might have balanced the interests regarding
Proponents of the change could counter that as dead people, defective newborns like anencephalics
anencephalics would not be "persons" under the Fourteenth differently, [*1275] leading to a different definition of
Amendment. n330 Thus, the state's power to structure the personhood. n349 Arguably, however, even if one includes
definition of death would directly implicate the power to transplant technology as a factor for consideration, the interest in
determine who is a person for constitutional purposes. n331 Yet, equating anencephaly with death is not different in result for the
this is simply an exercise in circular reasoning, and it assumes infant than the interest in being free to kill a newborn. Thus, I
that a state has the power to make this constitutional conjecture that those jurisdictions that afforded personhood at
determination. [*1273] the point of birth in 1868 would likely have done so even in the
face of modern transplant technology.
In Doe v. Israel, a federal court noted that a state, in this case
Rhode Island, did not have the power to determine what is a Faced with an uncertain intent on the part of the Framers of the
"person" within the meaning of the Fourteenth Amendment. Fourteenth Amendment, the Court is likely to look for guidance
n332 The court held that such a question was purely one of law from basic intrinsic human rights as they have been understood
for the courts, independent of any power in the state legislature. in this nation's history and tradition. n350 The Court will find
n333 In fact, the court contended that the United States Supreme generally uniform state definitions of death, all of which are
Court had always given content to the term "person" under the based on a biological understanding of personhood, i.e., all
Fourteenth Amendment. n334 human beings are persons. n351 In the absence of a clear sense
of the Framers' intent, this would have to weigh heavily in the
In Doe, the intervenors argued that some Supreme Court Court's determination of what is a "person" for purposes of the
decisions indicated that the Court had looked to state definitions Fourteenth Amendment. The Court would likely adopt a
of "property" in construing that term under the Fourteenth biologically based understanding of personhood. Thus, even
Amendment. n335 Thus, if the Court accepted state law anencephalic infants would be considered persons under the
understandings of "property" in construing the Fourteenth Fourteenth Amendment, persons who have a fundamental right
Amendment, why not accept state law understandings of to life. Because life is a fundamental right, any state legislature
"person." In Doe, however, the court argued that the intervenors that acted to controvert that right, equating death
missed the point. n336 The Supreme Court may have looked to with anencephaly,would be subjected to the strictest scrutiny of
what state law understandings indicated regarding property, but the Court. n352 The Court would hold this state action
it exercised an ultimate, independent judgment about what unconstitutional because it would violate a fundamental right
"property" is property for purposes of constitutional protection. guaranteed by the Constitution. Compelling necessity does not
n337 Furthermore, the court in Doe noted that while the states motivate this kind of state action, and the state could use less
had traditionally established a network of property and contract intrusive means to accomplish the same goal by funding
rights, they had not done so as to life, liberty, or person. n338 research that would discover means to maintain anencephalic
organ vitality until the infant's brainstem died.
Opponents of a state's efforts to equate anencephaly with death
could also raise an equal protection challenge to the statute.
n353 Op [*1276] ponents could base their challenge on the
Fourteenth Amendment, claiming that the state's action did not
afford equal protection of the laws to anencephalic infants. The
success or failure of such a challenge, however, would obviously
hinge on the same line of reasoning pursued in a substantive due
process challenge. If the anencephalic infant is a person, then a
law that declares her dead by virtue of her deformity obviously
denies her the protection of the right to live that is afforded to
every other person. Even if a state has a compelling interest in
enhancing the pool of pediatric organs for transplantation to its
dying infants, no court would permit the achievement of that
interest at the expense of the life of another person. If the
anencephalic infant is not a person, however, then it has no right
to equal protection of the laws under the Fourteenth
Amendment, and no equal protection challenge would exist.
n354
Second, using a protocol that complies with the whole brain
death standard will avoid the slippery slope ethical problems. It
will not risk generally losing public confidence in transplant
programs.
Third, in order to procure transplantable organs and comply with
the UDDA standards, doctors will have to place most
anencephalic [*1278] infants on mechanical ventilation at
birth. While this, too, possibly violates the Kantian ethic not to
use a person as a means to an end, it appears to approach a better
balance of all the interests involved if coupled with a reasonable
time limit. n366 Both deontological n367 and utilitarian n368
ethics support this approach. Use of a ventilator for a predefined
length of time does prolong the dying process of the
anencephalic or extend its life, depending on your perspective,
but it also allows the infant to die of its own accord. In contrast,
equating anencephaly with death allows a doctor to intervene
and cause death through the harvesting of organs.

V. Conclusion Finally, the existence of anencephalic transplant programs will

serve as an incentive to develop new drugs and new techniques
In T.A.C.P., the Supreme Court of Florida rendered a well- to maintain organ vitality until the anencephalic infant succumbs
considered, conservative decision that upheld the dignity of all to whole brain death. n369 Instead of falling prey to the
human beings. While the court did not declare any opinions on temptation to alter the definition of death to meet the current
the issues it discussed, right or wrong, it did clearly elucidate the capabilities of medical science, we should strive to improve
lack of consensus regarding the medical utility of using medical science to yield better success within current definitions
anencephalic donors and the ethical issues involved. n355 In the of death. n370 [*1279]
absence of consensus, the court correctly concluded that it had
no public necessity basis upon which to expand the common law With an issue as fundamental to a society as the determination of
of Florida to equate anencephaly with death. n356 In essence, it life or death, it is imperative to have some sense of consensus
refused to embrace a nonbiologically based understanding of before a change is made. While there seems to be a plethora of
personhood and thereby maintained the innate dignity and opinions on this issue, I close with a simple litmus test for
bodily integrity of all human beings. consideration. George Annas, Professor of Health Law at Boston
University, said regarding the case of Baby Theresa that life and
Besides the precedent-setting nature of this decision, T.A.C.P. is death is not an individual question. In some sense, it's arbitrary,
important because it addressed the current state of this issue in but the death line has got to be solid. The litmus test is this:
three different communities: medical, ethical, and legal. n357 Would you feel comfortable burying this person while she is still
Spurred by the news of a successful heart transplant in 1987 breathing on her own? If not, you know at some level she is not
from an artificially sustained anencephalic infant, Baby dead. n371
Gabrielle, who had been declared brain-dead in London,
Ontario, to another child at Loma Linda University in the United
States, the interest in the potential use of anencephalic infants as
donors grew quickly. n358 Yet, experimentation soon proved
that success was far more the exception than [*1277] the norm.
n359 Interestingly, T.A.C.P. arose after the fervor had subsided,
almost as a final effort to determine whether the court would
remove the legal barriers to, arguably, the only transplant
protocol using anencephalic donors that offered some potential
for regular success. n360 The court's decision, coming on the
heels of the previous ideological fervor, revealed not only the
current absence of consensus among any of the interested
communities, but it also raised the suspicion that consensus
might not be achieved.

In view of these considerations, no transplant centers in the

United States are now using anencephalic infants as organ
donors, or even contemplating it. n361 They have declared an
informal moratorium in the area. n362 In London, Ontario,
however, the transplant group is contemplating starting
anencephalic organ donation again on a limited scale. n363
Organ donation would only be allowed after whole brain death
had occurred, congruent with current death standards in the
United States. n364

While this approach has hardly yielded successful results in the

past, it does have advantages over no experimentation. First,
occasionally, an anencephalic infant will suffer whole brain
death within a reasonable time after birth to allow doctors to
harvest a viable organ for transplantation. The successful heart
transplant from Baby Gabriel in 1987 occurred in this manner.
n365 If the transplant programs are not functioning, even these
organs will be lost and potential recipients will needlessly die.