I am thinking of writing a book in which I suppose that a brain transplant becomes viable. Given todays laws, how would we establish the identity of that first patient?
At the moment, our laws seem to tip toward identification by body measurements: DNA, fingerprints, blood type, height, “race”, biometrics, and so on. These seem adequate only to identify the body, not the actual person.
I can see interested parties on both sides arguing for one identity or the other: for instance, the body owes money to creditors; the body is wanted for a crime; the body is AWOL from military duty; the body is identified by DNA in a paternity suit. Or the brain was eligible for Social Security; the brain owned a large estate and has a will, and so forth.
What laws or cases would be referenced to identify the patient? Are there any modern-day cases with similar topics that I could study?
This is somewhat covered in the Robert A. Heinlein’s book “I Will Fear No Evil”.
Johann Sebastian Bach Smith in the story needs to provide proof he is Johann Sebastian Bach Smith as he got transplanted into the body of a young female.
Jim
I read that book, but having been through a kidney/liver transplant myself, I find it is so unreliable and unrealistic that I don’t think I trust his legal conclusions.
Besides, Heinlein’s world didn’t have DNA analysis.
That’s fair, but it will be hard to cite legal cases for such a situation, will it not? We are still very far from a full body transplant and no laws come close to covering this situation. I do recall that a donor recipient is not responsible for any debt of the donor or to be considered a legal heir in any way shape or form.
So I think the answer is that if the recipient of the new body’s legal team could prove the Brain of the person is in the new body, it would be treated as the original person the brain belonged to for all intents and purposes.
As this is GQ however, I will leave off with this rather weak WAG and see if anyone could actually site a suitable legal case or law.
You should also expect at least one reference to Spock’s Brain before long.
You’d probably need legislation to establish whether the identity transfers to the body or to the brain. Intuitively, it would make sense to transfer to the personality rather than the meat that carries it around, but as you’ve noted, all our current identification techniques apply to the physical characteristics of the body. From a practical standpoint, it might come down to whoever wrote the donor letter.
If you want a * real * hard question, what if someone is injured in an accident, loses half their brain, and gets a brain transplant that restores full function? Almost certainly impossible except in science fiction, but it would be a real who’s who.
Exactly — which is why I find the legal ramifications so interesting. On what basis, on what existing case laws, do we establish a fair judgement?
The way I figure it, upon death, the body becomes chattel. It cannot be donated, cannot be treated as transferable property, until brain death of the donor is established. As of the time of donation, therefore, the patient inherits all of those identifiers (DNA, fingerprints, etc).
It would be the same thing as purchasing a firearm (which can be identified by its serial number, rifling pattern, and so on). It isn’t enough to establish which gun committed the crime, but who owned it at the time.
You may be on the right track. I expect any jurists involved in such a case would look to the precedents defining death, which have for some time gone toward the brain as containing the real kernel of ‘personhood.’