脳死判定に対する良心的拒否 : ニュージャージー州とニューヨーク州の事例

抄録

In several areas in the world, including New York State and the State of New Jersey, one can virtually be diagnosed dead based on cardiac death criteria even if brain death occurs. In New York and New Jersey, such exemption from brain death determination is often a consequence of the accommodation of religious and moral objection to neurological death criteria. This paper aims to shed some light on the implications and problems of conscientious objection to the determination of death based on brain death. In the first place, the paper describes the background that led to the enactment of such objections in New York and New Jersey, including the initiative by some religious group. Then, the efficacy of the frequentlymentioned parallelism between conscientious objection to brain death and military service is called into question. After distinguishing between the positive and negative effects of conscientious objection to brain death, the paper argues that conscientious objection to brain death differs from objection to conventional conscription understood as a strong obligation in that the "object" of the objection is not obligation but the default death definition or the alleged singularity of human death, considering that the New York guidelines, for example, prescribe no obligation for patients or their families. In so doing, the paper questions the understanding that the essence of accommodation of conscientious objection to brain death is sincerity in limiting the free choice or self-determination in death declaration. The possible ramifications of the above conscience clause are also discussed.