A Difference That Matters: The Distinctions between Brain Death, Biological Death, and Legal Death

(This is the second article of our brain death series. Make sure to read Article 1: (Is Brain Death a New Way of Defining Death?) and be on the lookout for the next article in the series!

Only a handful of stories have appeared in the mainstream media of the uncomfortable dichotomy and fights over patients being declared brain dead. For thousands of Americans, these are not just stories, but tragically their own family histories. An estimated 42 patients in American intensive care units (ICUs) are diagnosed and declared brain dead each day.

It is important to note that the clinical criteria for brain death does not coincide with the biological definition of death. The biological concept of death occurs upon critical damage to “multiple organ systems, the key being the circulatory, respiratory, and nervous systems.” Biological death occurs when all the organs of the body including the heart and brain cease to function. Once the heart stops, multiple organ systems stop as well.

The discussion of brain death, on the other hand, begins with a physician’s opinion. How is that opinion developed? Is the state of death unmistakeable, or is death subject to differing opinions from physicians? Let’s dive into what the colloquial term, “brain dead,” actually means.

The Ad Hoc Harvard Committee defined irreversible coma as a new criterion for death, labeling this state as “brain death.” This designation means that comatose individuals with no discernible central nervous system activity (or brain stem function) are considered medically dead although their heart and lungs continue to function. Organizations such as the American Academy of Neurology and others affirm the Harvard Committee’s definition. 

The Ad Hoc Harvard Committee’s definition is founded on the belief that the brain is the master integrating organ of the body, therefore its complete and irreversible non-function would cause the body to cease being a unified organism.  Based on the Ad Hoc Harvard Committee’s definition and explanation an individual can meet the criteria for brain death and yet continue to live, maintaining integrated functions of the body. Physicians have admitted to families that it is impossible to prove an absolute irreversible loss of all brain function. Despite this reality, the clinical conclusion of brain death is based on a physician’s determination that the brain has no function and that therefore the patient should be considered dead. 

The Ad Hoc Harvard Committee’s report laid the groundwork for The Uniform Determination of Death Act (UDDA), model legislation that established the idea of brain death as legal death in all 50 states. Additionally, the definition and criteria for brain death are now accepted as legal criteria for death in a handful of countries across the globe.

The state of Texas is just one jurisdiction where a determination of brain death creates a way for a patient to be deemed dead according to law. The term brain death is actually not found in Texas law. Texas law describes brain death by the following statute:  

“If artificial means of support preclude a determination that a person’s spontaneous respiratory and circulatory functions have ceased, the person is dead when, in the announced opinion of a physician, according to ordinary standards of medical practice, there is irreversible cessation of all spontaneous brain function. Death occurs when the relevant functions cease.”

Although the law does not include the term brain death, the law affirms the clinical criteria as developed by the Ad Hoc Harvard Committee for brain death. Thus, Texas law allows any physician to form an opinion and make a brain death declaration even though the patient may not be biologically dead. 

Texas Right to Life has worked with numerous families whose loved ones have been on the receiving end of a brain death declaration. Families explain to our patient advocates that they are confused and left with so many questions. Their loved one is “brain dead,” yet his or her heart is still beating. Families ask, “How can my loved one be brain dead and declared legally dead, if they are alive?” Last year, 10-month-old Kayden’s* mother and grandmother were alarmed and confused when his doctor emphatically declared brain death while acknowledging Kayden’s healthy, strong heart rate. 

The inconsistencies in a brain death declaration are clear. Sadly, most families do not realize this until they are personally confronted with this dilemma. This could happen to your best friend, your aunt, your mom or you. Therefore it’s important to understand that brain death and biological death are different concepts, yet both equal legal death. 

*Patient’s name changed 

The content of this article reflects the experience and research of patient advocates and is in no way intended to be a substitute for professional medical or legal advice. 


  1. Seifi A, Lacci JV. Incidence of brain death in the United States. Clin Neurol Neurosurg. 2020;195:105885. doi:10.1016/j.clineuro.2020.105885.
  2. Shewmon , D. A. (n.d.). Statement in Support of Revising the Uniform Determination of Death Act and in Opposition to a Proposed Revision. The Journal of Medicine and Philosophy: A Forum for Bioethics and Philosophy of Medicine: 4, https://doi.org/10.1093/jmp/jhab014
  3. Tex. Health & Safety Code § 671.001(b).
  4. Biel, S., & Durrant, J. (2020). Controversies in Brain Death Declaration: Legal and Ethical Implications in the ICU. Current Treatment Options in Neurology, 22(4), 12. https://doi.org/10.1007/s11940-020-0618-6

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