Yech.

I do not remember this from 1L criminal law class:

Human Being: The D[efendant to a charge of murder] must have killed a human being. Under common law, a human being exists between the birth of a live child and a legal death.

Legal Death - Historically: Legal death was formerly defined as the time when a person stopped breathing and his heart stopped beating.

Legal Death - Current View: With current medical technology a person can be kept breathing and his heart beating on life support equipment, so now the test is "irreversible cessation of brain function."

Thus:

Disconnecting the life support of a victim who is still breathing and whose heart is still beating, but who has irreversible cessation of brain function, is not murder because the victim is not legally a human being.

Sounds almost benign, but extrapolate it to: Slitting the throat of a victim on life support who is still breathing and whose heart is still beating, but who has irreversible cessation of brain function, is not murder. Shooting up a victim on life support who is still breathing and whose heart is still beating, but who has irreversible cessation of brain function, is not murder.

Creepy. Anything that relies on "current medical technology" to define being human is probably flawed, and definitely creepy. What "scientist" or "doctor" will say with absolute infallibility in all cases that brain function has completely ceased and is irreversible?

There was news a few months ago about the discovery that some patients in a vegetative state actually retained brain function and awareness even though they were unable to communicate - I couldn't bring myself to read much about it because it is too appalling to think about! - and I'm not concerned here about the merits or morals of euthanasia. I'm just creeped out by the idea outlined above. Legally a human being, or not, because science says so! But science is a process, not an answer - even if it helps us find the best answer available at the moment, "science" always knows so little, today, compared to what it finds out tomorrow.

This is just blackletter law for the bar exam - no discussion or nuance; they don't even give citations to cases where this area of the law has been applied, since we're just concerned with the correct answer choice on a multiple choice test. But it is not a nice direction to be moving in, compared with the alternative; the very clear, intuitive and easily-applied earlier standard: a person is a human being until she is dead, and if you kill her you can be liable for murder. Why the change? Hmm?

Anyways, it is a good thing I'm studying, because I would have gotten that one wrong...