May 22, 2022

Legal heads-up on decapitation

Duke University law professor Nita Farahany says that head transplants would not pass the consent test

As a Chinese doctor plans the world’s first head transplant, a renowned medical law expert has weighed into the debate. 

In a blog post on the Volokh Conspiracy, Duke University law professor Nita Farahany said that the operation – which the international medical community almost unanimously agrees has no chance of success – would likely not even satisfy the legal criteria for consent if it were performed in the US. Interestingly, Farahany contrasts an operation like a head transplant with physician-assisted dying:

…although there has been some liberalization of physician-assisted suicide laws in the United States, active euthanasia is illegal. And although the surgeon here would say that he is not attempting to end the patient’s life, it seems as if active euthanasia could be the most lenient characterization of a surgery involving decapitation. Yet, the physician does not intend for the patient to die. Instead, the physician intends for the patient to be restored to walking with a new body and an intact brain. So although the physician intends his conduct, he does not intend to bring about death, even though it is probable. So the surgeon’s conduct could be viewed as intentional or reckless homicide if the patient dies.

As Farahany observes, “a patient cannot consent to intentional or reckless homicide”.  

She does, however, acknowledge that it might be compared to other high-risk operations:

Alternately, is the right way to analyze a proposed head transplant as an assumable risk in surgery? We permit surgeons to operate on patients every day, even though they may die, and many do. Is this head transplant surgery just a very risky surgery to which a patient can (or should be able) to legally consent?

Speaking with the New York Times in June, bioethicist Arthur L. Caplan said he was deeply suspicious of the operation being planned in China:  

“The Chinese system is not transparent in any way…I do not trust Chinese bioethical deliberation or policy. Add healthy doses of politics, national pride and entrepreneurship, and it is tough to know what is going on.”

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