The New Jersey Declaration of Death Act

P.L. 1991, Chapter 90

To be codified as Chapter 6A of Title 26

of the Revised Statutes

Historical Note

The New Jersey Declaration of Death Act was signed into law on April 8, 1991. The bill was passed, as amended, by the New Jersey Senate (S-1208) on March 7,1991. The companion bill was passed by the General Assembly (A-1413) on February 28, 1991. The New Jersey Declaration of Death Act is based upon the work of the New Jersey Commission on Legal and Ethical Problems in the Delivery of Health Care (the New Jersey Bioethics Commission). The bill was originally approved by the Bioethics Commission on June 8, 1988, and transmitted to the Governor and Legislature on June 15, 1988.

Prefatory Note

The act codifies existing New Jersey case law by providing a statutory basis for declaring death on the grounds of total and irreversible loss of all functions of the entire brain, including the brain stem (commonly known as "whole brain death"). In two important respects the act is unique among whole brain death laws currently in force by statute or court decision in all 50 states and the District of Columbia. First, the act expresses an important commitment to respect for religious values by recognizing the legal right of an individual to claim an exemption from the application of neurological criteria for determining death if such a declaration would violate that individual's personal religious beliefs. New Jersey is the first state to recognize such an exemption in its statutory law. Second, the act mandates legally recognized uniform criteria for the determination of death on the basis of neurological criteria, by requiring the Department of Health and the Board of Medical Examiners to adopt rules and regulations setting forth currently accepted medical standards, including criteria, tests, and procedures, to govern such determinations. The act requires that these standards be periodically reviewed and updated to keep pace with developments in medical science and technology.

Historical and Prefatory Notes and section headings are supplied by the Bioethics Commission.

AN ACT concerning the determination of death, enacting the New Jersey Declaration of Death Act and supplementing Title 26 of the Revised Statutes.

BE IT ENACTED by the Senate and General Assembly of the State of New Jersey:

Section 1: Short Title and Purpose

1. a. This act shall be known and may be cited as the "New Jersey Declaration of Death Act."

2. b. The death of an individual shall be declared in accordance with the provisions of this act.

Section 2: Recognition of Traditional Cardio-Respiratory Criteria

An individual who has sustained irreversible cessation of all circulatory and respiratory functions, as determined in accordance with currently accepted medical standards, shall be declared dead.

Section 3: Recognition of Modern Neurological Criteria

Subject to the standards and procedures established in accordance with this act, an individual whose circulatory and respiratory functions can be maintained solely by artificial means, and who has sustained irreversible cessation of all functions of the entire brain, including the brain stem, shall be declared dead.

Section 4: Standards and Procedures for Declaration of Death Based upon Neurological Criteria

1. a. A declaration of death upon the basis of neurological criteria pursuant to Section 3 of this act shall be made by a licensed physician professionally qualified by specialty or expertise, in accordance with currently accepted medical standards and additional requirements, including appropriate confirmatory tests, as are provided pursuant to this act.

2. b. Subject to the provisions of this act, the Department of Health, jointly with the Board of Medical Examiners, shall adopt, and from time to time revise, regulations setting forth (1) requirements, by specialty or expertise, for physicians authorized to declare death upon the basis of neurological criteria; and (2) currently accepted medical standards, including criteria, tests and procedures, to govern declarations of death upon the basis of neurological criteria. The initial regulations shall be issued within 120 days of the enactment of this act.

3. c. If the individual to be declared dead upon the basis of neurological criteria is or may be an organ donor, the physician who makes the declaration that...