SUPREME COURT OF FLORIDA:
IN THE MATTER OF THERESA ANN CAMPO PEARSON
609 So. 2d 588
17 Fla. L. Weekly S 691
November 12, 1992, Decided
Direct Appeal of Judgment of Trial Court, in and for Broward County, Estella M.
Moriarty, Judge, Case No. 92-8255 (16) - Certified by the District Court of
Appeal, Fourth District, Case No. 92-0942
COUNSEL: Walter G. Campbell, Jr. of Krupnick, Campbell, Malone and Roselli, P.A., Fort
Lauderdale, Florida; and Scott A. Mager of Seinstein, Zimmerman
& Nussbaum, P.A., Tamarac, Florida, for Appellant.
Robert A. Butterworth, Attorney General and Louis F. Hubener, Assistant
Attorney General, Tallahassee, Florida, on behalf of Judge Estella M. Moriarty;
William R. Scherer, Linda R. Spaulding and Lynn Futch Cooney of Conrad,
& Jenne, Fort Lauderdale, Florida, on behalf of North Broward Hospital District,
d/b/a Broward General Medical Center; and Julie Koenig, Guardian Ad Litem, Fort
Lauderdale, Florida, for Appellees.
Ken Connor of Connor
& Associates, Tallahassee, Florida, Amici Curiae for Americans United for Life
and Florida Right to Life.
Charlene Miller Carres, Tallahassee, Florida; and Nina E. Vinik, Legal
Director, Miami, Florida, Amicus Curiae for American Civil Liberties Union
[**2] of Florida, Inc.
Michael T. Haire and David P. Rhodes of Haas, Austin, Ley, Roe
& Patsko, P.A., Tampa, Florida, Amici Curiae for The Arc, Ethics and Advocacy
Task Force of The Nursing Home Action Group, Laura and Paul Flint, Kristina and
Richard Fox II, Anne and David Andis, Martina and Robert Bailey, Jennifer and
James Molnar, M.D., and Alva and Kerry Nelms.
William A. Young, Jr. of Williams, Mullen, Christian
& Dobbins, P.C., Richmond, Virginia, Amicus Curiae for United Network for Organ
Sharing, a Virginia Non-Stock Corporation.
Marcia Beach, Executive Director and Linda G. Miklowitz, Tallahassee, Florida,
Amicus Curiae for United Advocacy Center for Persons With Disabilities, Inc.
Thomas A. Horkan, Jr., Tallahassee, Florida, Interested Party.
JUDGES: KOGAN, BARKETT, OVERTON, McDONALD, SHAW, GRIMES, HARDING
[*589] KOGAN, J.
We have for review an order of the trial court certified by the Fourth District
Court of Appeal as touching on a matter of great public importance requiring
immediate resolution by this Court. We frame the issue as follow: n1
anencephalic newborn considered
"dead" for purposes of
donation solely by reason of its
[**3] jurisdiction. n2 Art. V,
Û 3(b)(5), Fla. Const.
At or about the eighth month of pregnancy, the parents of the child T.A.C.P.
were informed that she would be born with
anencephaly. This is a
birth defect invariably fatal, n3 in which the child typically is born with only a
"brain stem" but otherwise lacks a human
brain. In T.A.C.P.'s case, the back of the
skull was entirely missing and the
brain stem was exposed to the air, except for medical bandaging. The risk of infection
brain stem was considered very
infants sometimes can survive several days after
birth because the
brain stem has a limited capacity to maintain autonomic bodily functions such as
heartbeat. This ability soon ceases, however, in the absence of regulation from the
In this case, T.A.C.P. actually survived only a few days after
birth. The medical evidence in the record shows that the child T.A.C.P. was incapable
of developing any sort of cognitive process, may have been unable to feel pain
or experience sensation due to the absence of the upper
brain, n4 and at least for part of the time was placed on a mechanical ventilator to
breathing. At the time of the hearing below, however, the child was
breathing unaided, although she died soon thereafter.
On the advice of physicians, the parents continued the pregnancy to term and
agreed that the mother would undergo caesarean section during
birth. The parents agreed to the caesarean procedure with the express hope that the
organs would be less damaged and could be used for
transplant in other sick children. Although T.A.C.P. had no hope of life herself, the
parents both testified in court that they wanted to use this opportunity to
give life to others. However, when the parents requested that T.A.C.P. be
dead for this purpose, her health care providers refused out of concern that they
thereby might incur civil or criminal liability.
The parents then filed a petition
[**6] in the circuit court asking for a judicial determination. After hearing
testimony and argument, the trial court denied the request on grounds that
section 382.009(1), Florida Statutes (1991), would not permit a determination of legal death so
long as the child's
brain stem continued to function. On appeal, the Fourth District summarily affirmed but
then certified the trial court's order to this Court for immediate resolution
of the issue. We have accepted jurisdiction to resolve this case of first
II. The Medical Nature of
Although appellate courts appear never to have confronted the issuer there
[*590] is an impressive body of published medical scholarship on
anencephaly. n5 From our review of this material, we find that
anencephaly is a variable but fairly well defined medical condition. Experts in the field
have written that
anencephaly is the most common
birth defect of the central nervous system seen in the United States, although it
apparently has existed throughout human history.
A statement by the Medical Task Force on
Anencephaly ("Task Force") printed in the New England Journal of Medicine n6 generally described
congenital absence of major portions of the
skull, and scalp, with its genesis in the first month of gestation" David A. Stumpf et al., The
322 New Eng. J. Med. 669, 669 (1990). The large opening in the
accompanied by the absence or
congenital disruption of the
cerebral hemispheres is the characteristic feature of the condition. Id.
The large opening in the
accompanied by the absence or
[**8] of the
cerebral hemispheres is the characteristic feature of the condition. Id.
The Task Force defined
anencephaly as diagnosable only when all of the following four criteria are present:
(1) A large portion of the
skull is absent. (2) The scalp, which extends to the margin of the bone, is absent
skull defect. (3) Hemorrhagic, fibrotic tissue is exposed because of defects in the
skull and scalp. (4) Recognizable
cerebral hemispheres are absent.
Id. at 670.
Anencephaly is often, though not always,
accompanied by defects in various other body
organs and systems, some of which may render the child unsuitable for
organ transplantation. Id.
Thus, it is clear that
anencephaly is distinguishable from some other
congenital conditions because its extremity renders it uniformly lethal. Id. Less
severe conditions are not
"anencephaly." There has been a tendency by some parties and amici to confuse lethal
anencephaly with these less serious conditions, even to the point of describing children
"anencephalic" who have abnormal but otherwise intact
skulls and who are several years of age. We emphasize that the child. T.A.C.P.
[**9] clearly met the four criteria described above. The present opinion does not
apply to children with less serious conditions; they are not
anencephalic because they do not have large openings in their
accompanied by the complete or near total absence of normal
cerebral hemispheres, which defines
"anencephaly." See id.
The Task Force stated that most reported
anencephalic children die within the first few days after
survival any longer being rare. After reviewing all available medical literature, the
Task Force found no study in which
survival beyond a week exceeded nine percent of children meeting the four criteria.
Id. at 671. Two months was the longest confirmed
survival of an
anencephalic, although there are unconfirmed reports of one surviving three months and
another surviving fourteen months. The Task Force reported, however, that
survival rates are confounded somewhat by the variable degrees of medical care afforded
anencephalics. Id. Some such
infants may be given considerable
life support while others may be given much less care. See id.
The Task Force reported that the medical consequences of
[**10] can be established with some certainty. All
anencephalics by definition are permanently unconscious because they lack the cerebral
cortex necessary for conscious thought. Their condition thus is quite similar
to that of persons in a persistent vegetative state. Where the
brain stem is functioning, as it was here, spontaneous
heartbeat can occur. In addition, such
infants may show spontaneous movements of the extremities,
"startle" reflexes, and pupils that respond to light. Some may show feeding reflexes,
may cough, hiccup, or exhibit
[*591] eye movements, and may produce facial expressions.
Id. at 671-72.
The question of whether such
infants actually suffer from pain is somewhat more complex. It involves a distinction
"suffering." The Task Force indicated that
anencephaly in some ways is analogous to persons with cerebral
brain lesions. Such lesions may not actually eliminate the reflexive response to a
painful condition, but they can eliminate any capacity to
"suffer" as a result of the condition. Likewise,
infants may reflexively avoid painful stimuli where the
brain stem is functioning and thus is able
[**11] to command an inmate, unconscious withdrawal response; but the
infants presumably lack the capacity to suffer.
Id. 672. It is clear, however, that this incapacity to suffer has not been established
beyond all doubt. See id.
After the advent of new
transplant methods in the past few decades,
infants have successfully been used as a source of
donation. However, the Task Force was able to identify only twelve successful
organs by 1990.
Transplants were most successful when the
anencephalic immediately was placed on
life support and its
organs used as soon as possible, without regard to the existence of brain-stem
activity. However, this only accounted for a total of four reported
Id. at 672-73.
There appears to be general agreement that
anencephalics usually have ceased to be suitable
organ donors by the time they meet all the criteria for
brain death," i.e., the complete absence of brain-stem function. Stephen Ashwal et al.,
Anencephaly: Clinical Determination of
Brain Death and Neuropathologic Studies, 6 Pediatric Neurology 233,
[**12] 239 (1990). There also is no doubt that a need exists for
organs for transplantation. Nationally, between thirty and fifty percent of children
under two years of age who need
transplants die while waiting for
organs to become available. Joyce L. Peabody et al., Experience with
Infants as Prospective
321 New Eng. J. Med. 344, 344 (1989).
III. Legal Definitions of
As the parties and amici have argued, the
common law in some American jurisdictions recognized a
cardiopulmonary definition of
"death": A human being was not considered
heartbeat had stopped entirely, without possibility of resuscitation. E.g.,
Thomas v. Anderson, 96 Cal. App. 2d 371, 215 P.2d 478, 482 (Cal. App. 1950); see Jay A. Friedman, Taking the Camel by the Nose: The
Anencephalic as a Source for Pediatric
90 Colum. L. Rev. 917, 925-26 (1990).
However, there is some doubt about the exact method by which this definition
was imported into the law of some states. Apparently the definition was taken
from earlier editions of Black's Law Dictionary,
[**13] which itself did not cite to an original source. C. Anthony Friloux, Jr.,
Death, When Does It Occur?,
27 Baylor L. Rev. 10, 12-13 (1975). The definition thus may only have been the opinion of Black's earlier editors.
We have found no authority showing that Florida ever recognized the original
Black's Law Diction definition or any other definition of
"death" as a matter of our own
common law. n7 Even if we had adopted such a standard, however, it is equally clear that
modern medical technology has rendered the earlier Black's definition of
"death" seriously inadequate. n8 With the invention of life-support devices and
procedures, human bodies can be made to breathe and blood to circulate even in
the utter absence of
[*592] As a result, the ability to withhold or discontinue such
life support created distinct legal problems in light of the
"cardiopulmonary" definition of death originally used by Black's Dictionary. For example,
health care providers might be civilly or criminally liable for removing
organs from a person sustained by
life support, or defendants charged with homicide might argue that their victim's death
actually was caused when
life support was discontinued. Andrea K. Scott, Death Unto Life:
74 Va. L. Rev. 1527, 1538-41 (1988) (citing actual cases).
In light of the inadequacies of a
cardiopulmonary definition of
"death," a number of jurisdictions began altering their laws in an attempt to address
the medical community's changing conceptions of the point in time at which life
ceases. An effort was made to synthesize many of the new concerns into a
Uniform Determination of Death Act issued by the National Conference of
Commissioners on Uniform State Laws. The uniform statute states:
An individual who has sustained either (1)
respiratory functions, or (2)
cessation of all functions of the entire
brain, including the
brain stem, is
dead. A determination of death must be made in accordance with accepted medical
Unif. Determination of Death Act
Û 1, 12 U.L.A. 340 (Supp. 1991). Thus, the uniform act both codified the earlier
common law standard and extended it to deal with the specific problem of
brain death." While some American jurisdictions appear to have adopted substantially the
same language, Florida is not among these. Friedman, supra, at 928 nn.58-59.
Indeed, Florida appears to have struck out on its own. The statute cited as
controlling by the trial court does not actually address itself to the problem
infants, nor indeed to any situation other than patients actually being sustained by
life support. The statute provides:
For legal and medical purposes, where
circulatory functions are maintained by artificial means of support so as to preclude a
determination that these functions have ceased, the occurrence of death may be
determined where there is the
cessation of the functioning of the entire
brain, including the
brain stem, determined
[**16] in accordance with this section.
Û 382.009(1), Fla. Stat. (1991) (emphasis added). A later subsection goes on to declare:
Except for a diagnosis of
brain death, the standard set forth in this section is not the exclusive standard
for determining death or for the withdrawal of life-support systems.
Û 382.009(4), Fla. Stat. (1991). This language is highly significant for two reasons.
First, the statute does not purport to codify the
common law standard applied in some other jurisdictions, as does the uniform act. The use
of the permissive word
"may" in the statute in tandem with the savings clause of section 382.009(4)
buttresses the conclusion that the legislature envisioned other ways of
"death." Second, the statutory framers clearly did not intend to apply the statutes
language to the
infant not being kept
life support. To the contrary, the framers expressly limited the statute to that situation
circulatory functions are maintained by artificial means of support."
There are a few Florida authorities that have addressed the definitions of
"death" in somewhat analogous though factually distinguishable
[**17] contexts. Florida's Vital Statistics Act, for example, defines
expulsion or extraction of a product of human conception from its mother, irrespective
of the duration of pregnancy, which, after such
expulsion, breathes or shows any other evidence of life such as beating of the heart,
pulsation of the umbilical cord, and definite movement of the voluntary
muscles, whether or not the umbilical cord has been cut or the placenta is
Û 382.002(10), Fla. Stat. (1991). Conversely,
"fetal death" is defined as
death prior to the complete
expulsion or extraction of a product of human conception from its mother if the 20th
week of gestation has been reached and the death is indicated by the fact that
expulsion or extraction the fetus does not breathe or show any other evidence of life
such as beating of the heart, pulsation of the umbilical cord, or definite
movement of voluntary muscles.
Û 382.002(7), Fla. Stat. (1991). From these definitions, it is clear that T.A.C.P. was a
birth" and not a
"fetal death," at least for purposes of the collection of vital statistics in Florida. Thee
definitions obviously are inapplicable to
[**18] the issues at hand today, but they do shed some light on the Florida
legislature's thoughts regarding a definition of
Similarly, an analogous (if distinguishable) problem has arisen in Florida tort
law. In cases alleging wrongful death, our courts have held that fetuses are
"persons" and are not
alive" until they acquire an existence separate and independent from the mother.
Duncan v. Flynn, 358 So. 2d 178, 178-79 (Fla. 1978). We believe the height of the evidence supports the conclusion that T.A.C.P.
"alive" in this sense because she was separated from the womb, and was capable of
breathing and maintaining a
heartbeat independently of her mother's body for some duration of time thereafter. Once
again, however, this conclusion arises from law that is only analogous and is
not dispositive of the issue at hand.
We also note that the 1988 Florida Legislature considered a bill that would
"death" to include
anencephaly. Fla. H.B. 1089 (1988). The bill died in committee. While the failure of
legislation in committee does not establish legislative intent, it nevertheless
supports the conclusion that
[**19] as recently as 1988 no consensus existed among Florida's lawmakers regarding
the issue we confront today.
The parties have cited to no authorities directly dealing with the question of
"dead." Our own research has disclosed no other federal or Florida law or precedent
arguably on point or applicable by analogy. n9 We thus are led to the
conclusion that no legal authority binding upon this Court has decided whether
anencephalic child is
alive for purposes of
donation. In the absence of applicable legal authority, this Court must weigh and
consider the public policy considerations at stake here.
Initially, we must start by recognizing that
section 382.009, Florida Statutes (1991), provides a method for determining death in those
cases in which a person's
circulatory functions are maintained artificially.
Û 382.009(4), Fla. Stat. (1991). Likewise, we agree that a
cardiopulmonary definition of death must be accepted in Florida as a matter of our
common law, applicable whenever section 382.009 does not govern. Thus, if
cardiopulmonary function is not being maintained artificially as stated in section 382.009, a
dead who has sustained
respiratory functions as determined in accordance with accepted medical standards. n10
[*594] We have found no credible authority arguing that this definition is
inconsistent with the existence of death, and we therefore need not labor the
The question remaining is whether there is good reason in public policy for
this Court to create an additional
common law standard applicable to
anencephalics. Alterations of the
common law, while rarely entertained or allowed, are within this Court's prerogative.
Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973). However, the rule we follow is that the
common law will not be altered or expanded unless demanded by
Coastal Petroleum Co. v. Mobil Oil Corp., 583 So. 2d 1022, 1025 (Fla. 1991), or where required to vindicate fundamental rights.
Haag v. State, 591 So. 2d 614, 618 (Fla. 1992). We believe, for example, that our adoption of the
cardiopulmonary definition of death today is required by
public necessity and, in any event, merely formalizes what has been the common practice in this
state for well over a century.
Such is not the case with petitioners' request. Our review of the medical,
ethical, and legal literature on
anencephaly discloses absolutely no consensus that
public necessity or fundamental rights will be better served by granting this request.
We are not
[**22] persuaded that a
public necessity exists to justify this action, in light of the other factors in this case --
although we acknowledge much ambivalence about this particular question. We
have beer deeply touched by the altruism and unquestioned motives of the
parents of T.A.C.P. The parents have shown great humanity, compassion, and
concern for others. The problem we as a Court must face, however, is that the
medical literature shows unresolved controversy over the extent to which
organs can or should be used in
There is an unquestioned need for transplantable
organs. See Kathleen L. Paliokas,
Anencephalic Newborns as
Organ Donors: An Assessment of
"Death" and Legislative Policy,
31 Wm. & Mary L. Rev. 197, 238-39 (1989); Andrea K. Scott, Death Unto Life:
74 Va. L. Rev. 1527, 1565-56 (1988). Yet some medical commentators suggest that the
anencephalics are seldom usable, for a variety of reasons, and that so fed
transplants will be possible from
anencephalics as to render the enterprise questionable in light of the
[**23] at stake -- even if legal restrictions were lifted. D. Alan Shewmon et al.,
The Use of
261 JAMA 1773, 1774-75 (1989).
Others note that prenatal screening now is substantially reducing the number of
anencephalics born each year in the United States and that, consequently,
anencephalics are unlikely to be a significant source of
organs as tame passes. Shlomo Shinnar et al.,
Ethical Issuers in the Use of
Organ Donors, 7
Ethical Issues in Neurologic Practice 729, 741 (1989). And still others have frankly
acknowledged that there is no consensus and that redefinition of death in this
content should await the emergence of a consensus. Norman Fost, Removing
Ethical and Legal Considerations, 16 Neonatal Neurology 331, 336 (1989). But see
Charles N. Rock, The Living
Donation, 7 J. Hum. Rts. 243, 276-77 (1989) (arguing a consensus may be developing).
A presidential commission in 1981 urged strict adherence to the Uniform
Determination of Death Act's definition, which would preclude equating
anencephaly with death. President's
[**24] Commission for the Study of
Ethical Problems, Biomedical, and Behavioral Research, Defining Death: Medical, Legal
Ethical Issues in the Determination of Death 2 (1981). Several sections of the
American Bar Association have reached much the same conclusion. National
Birth, Death, and Law, Report on Conference,
[*595] J. 403, 421 (Lori B. Andrews et al. eds. 1989).
Some legal commentators have urged that treating
dead equates them with
"nonpersons," presenting a
"slippery slope" problem with regard to all other persons who lack cognition for whatever
reason. Debra H. Berger, The
Anencephaly: Moral and Legal Dilemmas, 5 Issues in L.
& Med. 67, 84-85 (1989). Others have quoted physicians involved in infant-organ
transplants as stated,
"The slippery slope is real," because some physicians have prposed
infants with defects less
anencephaly. Beth Brandon,
Organ Donors: A Question of Life or Death, 40 Case Western L. Rev. 781, 802
We express no opinion today about who is right and who is wrong on these issues
-- if any
"wrong" can be found here. The salient point is that no consensus exists as to: (a)
the utility of
transplants of the type at issue here; (b) the
ethical issues involved; or (c) the legal and constitutional problems implicated.
Accordingly, we find no basis to expand the
common law to equate
anencephaly with death. We acknowledge the possibility that some
infants' lives might be saved by using
anencephalics who do not meet the traditional definition of
"death" we reaffirm today. But weighed against this is the utter lack of consensus,
and the questions about the overall utility of such
donations. The scales clearly tip in favor of not extending the
common law in this instance.
To summarize: We hold that Florida
common law recognizes the
cardiopulmonary definition of death as stated above; and Florida statutes create a
"whole-brain death" exception applicable whenever
cardiopulmonary function is being maintained artificially. There are no other legal standard
for determining death under present Florida law.
Because no Florida statute applies to the present case, the determination of
death in this instance must be judged against the
cardiopulmonary standard. The evidence shows that T.A.C.P.'s heart was beating and she was
breathing at the times in question. Accordingly, she was not
dead under Florida law, and no
donation of her
organs would have been legal.
Û 732.912, Fla. Stat. (1991). The trial court reached the correct result, although we
do not agree with its determination that section 382.009 applied here. We
answer the question posed by this case in the negative and approve the result
It is so ordered.
BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES and HARDING, JJ., concur.
n1 Some of the parties incorrectly argue that the district court certified
specific questions. In actuality, the district court's order did not certify
specific questions. We therefore frame the issue ourselves.
n2 Although the child died during the pendency of this appeal, we exercise our
inherent jurisdiction to take the case because it an issue of great importance
capable of repetition yet evading review.
Holly v. Auld, 450 So. 2d 217 (Fla. 1984).
n3 We are mindful that some parties argue that
anencephaly is not invariably fatal and that some
anencephalics actually live for many years. We find that this argument arises from a
misperception about the nature of
anencephaly as it is defined by a consensus in the medical community. The living children
described by the parties actually are not
anencephalic, because they do not meet the definitive medical criteria. These medical
criteria are discussed below.
n4 There was some dispute about this point. Our resolution of the case,
however, renders the dispute moot.
n5 The term
"anencephaly" most commonly is used to identify this particular kind of
birth defect. More rarely, the term
"anencephalus" is used.
n6 The statement also was approved by the American Academy of Pediatrics, the
American Academy of Neurology, the American College of Obstetricians and
Gynecologists, the American Neurological Association, and the Child Neurology
Society. David A. Stumpf et al., The
322 New Eng. J. Med. 669, 669 n.* (1990).
n7 We have found no English cases prior to July 4, 1776, that established a
common law definition of
"death" imported into our own
common law by operation of
section 2.01, Florida Statutes (1991). The parties cite to none, and our own independent
research has revealed none.
n8 Black's Dictionary subsequently has modified its definition. See Black's
Law Dictionary 400 (6th ed. 1991).
n9 Some of the parties and amici cite to various other laws establishing civil
rights for disabled persons, including section 504 of the federal
Rehabilitation Act and the federal Americans with Disabilities Act. We are
aware that analogous Florida laws also exist. It is evident, however, that
these laws do not apply to the
dead. Accordingly, the linchpin question remains whether or not T.A.C.P. was
dead at the times in question. We also are not persuaded that
Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973), limited on other grounds,
Webster J. Reproductive Health Servs., 492 U.S. 490, 106 L. Ed. 2d 410, 109 S. Ct. 3040 (1989), modified on other grounds,
Planned Parenthood of Southeastern Pennsylvania v. Casey, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992), has any applicability to the facts at hand. By its own terms, Roe did not
"resolve the difficult question of when life begins." Id. at 159. We also do not agree that a parental right of privacy is
implicated here, because privacy does not give parents the right to donate the
organs of a child born
alive who is not yet legally
dead. Art. I,
Û 23, Fla. Const.
n10 Adoption of this
common law definition essentially brings Florida into harmony with the Uniform Determination of
Death Act, which embodies the same two standards contained separately in our
common law definition and in
section 382.009, Florida Statutes (1991).
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