by Elizabeth Price Foley. Cambridge: Harvard University Press, 2011. 320pp. Cloth $29.95. ISBN 9780674051041.
Reviewed by Susan M. Behuniak, Department of Political Science, Le Moyne College. Email: behuniak [at] lemoyne.edu
It is common to view life and death as antonyms. If one is not alive, then surely one is dead and vice versa. Such an intuitive approach simplifies the tasks of defining these terms and offers a foundation for creating public policies on dual fronts that are symmetrical, logical, and clear. However, from the first page of this intriguing book, Foley bursts this promising bubble by examining cases from a grey zone that defy black and white answers. Yet rather than propose how to clarify the line dividing life and death, she argues that the questions that arise from the shadows are best dealt with by the variety of answers provided by state legislatures rather than by the uniformity offered by national law. And so, rather than opposites, the laws governing life and death are ambiguous—and necessarily so.
This is a book that invites reflection and “conversation” with the author’s analysis of controversial issues—features that recommend it for both scholars and classroom use. It is especially well suited for courses that include the topics of reproduction, end-of-life, or biomedical ethics since her command of the issues is learned and her research informative. The writing is graceful, inviting, and accessible, and each chapter offers examples, cases, and questions to which there are no easy answers.
The Introduction opens with the question: “Are you alive?” Any temptation to characterize life as the opposite of death is quickly disabused by Foley’s citing of examples to the contrary: a person without cardiopulmonary functioning might still be resuscitated; a person with severe dementia still retains basic rights; a fetus may be considered living for some legal purposes (e.g., wrongful death suits) but not entitled to the same protections as those already born. Foley then introduces her thesis that a unitary and mutually exclusive definitional relationship between life and death may in fact be unwise. The inconsistencies and ambiguities related in the following chapters, she argues, may not only be rational but necessary as society is pulled by a variety of shifting values.
Chapter 1, “Statutory and Common Law Life,” begins by asking “when did you become you?” (p.7). When, indeed, does life begin? According to biology, neither life nor death are moments but rather are processes. But within law the question seeks specificity: when exactly does personhood, with its attendant rights, begin and end? The answer implicates contentious practices such as birth control, abortion, in vitro fertilization, and stem cell research. But it is also reflected in criminal, tort, contract and property law involving fetal injury, fetal death, cryonics, and frozen embryos. In examining illustrative cases, Foley [*664] shows how jurisdictions differ in identifying when exactly we begin.
“Constitutional Life” is the subject of Chapter 2 that questions: “who qualifies as a constitutionally cognizable person?” (p.57). The Supreme Court’s contraception and abortion cases are reviewed in order to illustrate that these decisions do not comport with the legal definition of death. Although “death” is defined as either the irreversible loss of cardiopulmonary or brain function, the Supreme Court’s focus does not employ this as a guide as to when life is present, but inquires instead as to whether a “person,” i.e., a born human being, is present. This shift in terminology then makes allowances for legalization of these practices. Another example of how the definitions of life and death are in flux and at times disconnected involves fetal cells. Foley describes how the moratoriums on the use of federal funds for fetal tissue and fetal cell research have been imposed or lifted depending on the shifting politics of presidential administrations and parties in power in Congress rather than by shared social values.
Chapter 3 on “Cardiopulmonary Death” signals a shift in focus to the other end of life, and so begins with the question, “What is death?” (p.85). The Uniform Determination of Death Act (UDDA) offers one definition as the “irreversible cessation of circulatory and respiratory functions.” (The second definition citing the irreversible cessation of all brain functions is the subject of the next chapter.) Foley demonstrates the politics and values behind these definitions by tracing the impact of organ harvesting. If not for a shortage of organs for transplantation, the issues that arise from donation after cardiac death (DCD) would not even exist. Instead, the problem is how organs can legally be harvested from a patient on life support who is not brain dead. The answer has been to invoke a controlled cardiopulmonary death, that is, the withdrawal of life support so that death may occur. But now timing is essential—how much time must pass between the last breath or heartbeat and the removal of vital organs? The more time that lapses, the more time the patient has to begin cardiopulmonary functioning on his or her own; but each minute deprives the organs of oxygen, making them less viable for transplant. If DCD was not fraught enough with ethical issues, Foley then adds “do not resuscitate” orders (DNRs) to the analysis and questions whether the autonomous right to refuse life-sustaining medical treatment has morphed into an obligation to do so at the discretion of physicians. Although she does not mention it, her concern is supported by the distressing practices alleged to have occurred in post-Katrina New Orleans (Fink 2009).
Chapter 4 on “Brain Death” explores whether we can “pull the plug” (p.112). Once again the concept of brain death seems to have been driven by the need to produce fresher organs for transplant. The advantage over cardiopulmonary death is that when a donor is declared brain dead, medical technologies stay in place feeding organs oxygen until the time they are removed from the “dead” patient. Foley examines both sides of the controversy by reviewing the arguments of those who believe that “brain death” is too conservatively defined and so favor requiring only “higher brain” death (i.e., death of the cerebral cortex), and [*665] those who question whether brain death (defined more broadly as the “whole brain” including the brain stem) can even be accurately diagnosed.
In Chapter 5 the subject is “Constitutional Death” and the question is whether there is a constitutional right to commit suicide and if so, whether this includes a right to enlist the aid of another person, usually a physician (p.152). Foley’s discomfort with assisted suicide is evident throughout the analysis of the cases involving a right to refuse medical treatment (Cruzan v. Director, Missouri Dept. Of Health and the Terri Schiavo case) and the physician-assisted suicide cases (Washington v. Glucksberg, Vacco v. Quill, Baxter v. State) that followed. Her analysis suggests that assisted suicide is neither normatively desirable nor legally confinable. Here, her reliance on legal analysis results in some erroneous assumptions including that there are no barriers to physicians prescribing adequate pain meds, there is no difference between pain and suffering, and pain relief is a more sound justification for assisted suicide than is honoring personal dignity. Such assumptions demonstrate the limits of legal analysis unchecked by actual medical practices, bedside knowledge, practical realities, or even an ethic of care. For example, physicians who freely dispense pain medications that hasten death have been subjected to criminal charges; pain is a narrow physical manifestation while suffering includes acute anxiety about a broad array of spiritual, relational, and social issues; and dignity is attached to self-determination about the meaning and nature of how a person lives—and dies. The chapter ends with the political argument that what is needed to resolve these issues is not judicial interventions but legislative policy—precisely what Oregon and Washington have done in decriminalizing physician-assisted suicide. (A third state, Montana, has accomplished the same by judicial decisions.)
Chapter 6, “Not Dead Yet,” breaks with the organization of the previous chapters in that no question is raised but instead there is a mining of the scientific studies about PVS (persistent vegetative state) that challenge the common assumption that patients so diagnosed lack consciousness. Although interesting and even unsettling, the chapter ends by conflating a variety of conditions within what she terms the “twilight zone” of consciousness: “those with progressive dementia disorders (e.g., Alzheimer’s), dreamers, those under general anesthesia, recreational drug users, and even those who meditate” (p.245). The conclusion that follows is equally as baffling:
None of these less-than-fully conscious individuals are legally dead, though they are all cognitively impaired, even if only transiently so. Diminished or even absent consciousness, in other words, is a disability—indeed, it can be a can be a [sic] pretty severe one—but it is not the functional equivalent of death. Such disabled individuals, in short, are not dead yet (p.245).
Here, her critical point that it is uncertain whether those in PVS retain consciousness is undermined by the addition of disparate conditions to the “twilight” category.[*666]
Chapter 7, “Unbeing Dead Isn’t Being Alive,” introduces a new thesis: that the right to life is losing and the culture of death is winning—an argument I found problematic on two fronts. First, I didn’t see this argument coming; the book would have benefited had it been revealed earlier and defended in each of the preceding chapters. Second, there is again an over reliance on law-on-the-books rather than law-in-the-field. To wit, Foley’s conclusion seems supported by the former: birth control and abortion are both legal practices; the definition of death is broadening to allow for organ transplant; use of Do Not Resuscitate (DNR) orders and other advance directives are on the rise; and assisted suicide is now legal in three states and gaining traction. But a more nuanced and political analysis would also weigh the following realities: although women have a constitutional right to terminate pregnancies before viability, many cannot access this right due to political decisions in the states that have intentionally reduced the availability of providers and put in place barriers like waiting periods to further discourage the practice; PAS is legal in only 3 of the 50 states and restricted to a narrow category of patients; contrary to many state laws, the usual result that follows when a family member objects to an organ donation (even one authorized by the deceased) is that the donation is stopped because of fear of bad publicity and legal liability; and finally, death talk is still so taboo in our culture that even to suggest that doctors be encouraged by the government to discuss DNRs, palliative care, advance directives, or hospice care as alternatives to aggressive medical treatment leads to panic that the government is creating “death panels” to compel grandma to die.
In the final assessment, Foley is overwhelmingly convincing that life and death are not and cannot be antonyms. Still, her earlier thesis, that the fluidity of life and death policies is “often the only rational approach” (p.5) warrants questioning. To allow for incoherent policies across the nation is to reject the claims to rights and may not in fact reflect values so much as power. How far does a claim to bodily integrity extend? What decisions are rightly left for democratic consideration? Who influences the making of such laws, how, and why? Thus, my own “conversation” with this intelligent book continues—a result that highly recommends it.
Fink, Sheri. "The Deadly Choices at Memorial," New York Times Magazine, Aug. 30, 2009, p 28-46.
Uniform Determination of Death Act, National Conference of Commissioners on Uniform State Laws, U.S. 1981.
Baxter v. State, 1st Jud. Dist. Ct., Montana (Dec. 5, 2008).
Baxter v. State, 354 Mont. 234 (2009).
Cruzan v. Director, Missouri Dept. Of Health, 497 U.S. 261 (1990).
Vacco v. Quill, 521 U.S. 793 (1997).
Washington v. Glucksberg, 521 U.S. 702 (1997).
© Copyright by the Author, Susan M. Buhuniak