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Indiana Law Journal

Document Type

Article

Publication Date

Winter 2026

Publication Citation

101 Indiana Law Journal 441

Abstract

There are few dichotomies more recognized than the one between life and death. Given the many legal rights that pivot on this distinction, one would think that the law has exceptionally clear standards for diagnosing death. It may surprise you then to learn that the line between legal life and death is no longer so obvious. That is, in a growing number of cases, there is now disagreement about whether someone is legally dead or alive. This is due to two things: the development of medical devices that can breathe for patients with severe brain injuries, and neuroimaging technology that can detect minimal amounts of brain activity, albeit imperfectly. Together, these developments make the diagnosis of death by neurological criteria much less black and white.

In this Article I explain how brain death occurs along a biological spectrum, with different parts of the brain shutting down at different times and to varying degrees, depending on the cause of the brain injury. And even with modern diagnostic tools like electroencephalogram (EEG), it is not always possible to conclusively determine whether someone has retained deep brain functions. However, state laws on the definition of brain death demand a black-and-white, yes-or-no answer. And the Universal Declaration of Death Act (UDDA), which almost all states have adopted verbatim, requires that doctors be certain that there is irreversible cessation of all functions of the entire brain before someone can be declared legally brain-dead. This as an instance of what I have dubbed the “biolegal mismatch.” The mismatch between the continuum of biology and the binary requirement of law creates weighty problems when doctors, pressured by the need for organ donations and limited hospital resources, declare patients brain-dead even when they still have minimal brain functions—functions that may permit them to fight infections, regulate body temperature, or have a menstrual cycle. Can someone be legally dead while continuing to have a menstrual cycle? Shockingly, many neurologists say yes. Legal scholars and ethicists steeped in discussions of brain death seem to forget that it is not diagnosed in a vacuum. Brain death operates within a legal framework that regrettably does not entitle patients to any type of treatment or insurance coverage, and certainly not for interventions deemed medically futile. That is, even without a conclusive brain death diagnosis, the law permits doctors to unilaterally withdraw machines that are not perceived to be providing any medical benefit. The Article argues that we do need a clear legal definition of death because the current situation is untenable and leads to doctors routinely violating the law. I propose reforming the UDDA to acknowledge that absolute certainty is not always possible, while still providing clearer guidelines. Given that brain death determinations can lead to protracted legal battles when the patient’s loved ones distrust the diagnosis, I emphasize that hospitals must do more to build trust with families through better communication about brain death. The Article concludes that exaggerating the certainty of brain death will continue to backfire. Instead, doctors should acknowledge the complexity while still being able to make these difficult but necessary decisions within a more flexible and biologically valid legal framework.

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