Persons and death: what's metaphysically wrong with our current statutory definition of death?

This paper challenges the recommendations of 1981 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research that all jurisdictions in the United States should adopt the Uniform Determination of Death Act, which endorses a whole-brain, rather than a higher-brain, definition of death. I argue that the Commission was wrong to reject the "personhood argument" for the higher-brain definition on the grounds that there is no consensus among philosophers or the general population as to what constitutes "personhood". I claim that philosophers agree that some potential for cognitive function is necessary for personhood and that, when this is absent in cases of anencephaly and persistent vegetative state (PVS), the individual should be considered dead. I further argue that the lack of consensus among the general population is due in large measure to misunderstandings about the medical reality of PVS and beliefs influenced by feelings for a specific individual in PVS. I also examine and reject two tutorist arguments which have been used to support the Commission's position: that the higher-brain definition would threaten the severely senile and severely retarded, and that there are not currently adequate medical techniques for determining when all higher-brain activities have ceased.