Alive

What does Alive mean in American Law?

The definition of Alive in the law of the United States, as defined by the lexicographer Arthur Leff in his legal dictionary is:

The central meaning, something like “neither inanimate nor dead,” is easy enough. With respect to human beings, however, very tricky conceptual problems arise at both ends of life’s temporal spectrum, i.e., the borderlands between not-yet-alive and alive, and between alive and dead, are not nearly as clear as a lawyer would like them to be.

At the life-death border, modern medical technology has made it possible to continue many of a person’s physiological processes, e.g., breathing, circulation of blood, heartbeat, long past the point where he would ever return to consciousness and reasonably full human behavior; a person in deep coma can today be kept from death,” but only as some sort of biological preparation. In light of the costs, both emotional and material, of these radical mechanical interventions, at what point can the machines lawfully be shut off on the ground that the person is “really” dead. (The question is particularly important since many organs of the freshly dead can now be

transplanted to save the lives of others.)

At the pre-alive-alive border, similar problems exist, though they are socially rather than technologically induced. At what point, should a foetus not yet born be treated as “alive,” i.e., entitled to the protection accorded already born humans? Long ago it was decided that, for purposes of estate and inheritance law, an infant en ventre so mere, i.e., not yet born, was “alive” for most purposes beneficial to it. It has also been decided that a child injured in its mother’s womb might itself, at least if born alive, have acause of action in tort against the wrongdoer. In current abortion law, a foetus is entitled to full protection in the last trimester of pregnancy, some

perhaps in the middle trimester, and none in the first trimester, its rights depending on its viability, i.e., theoretical ability to live outside its mother if then delivered.

Important to all these legal problems is the recognition that they are legal (and ethical) problems, dependent not on any deceptively “natural” biological definition of life, but on social and legal decisions. In “nature,” things just are; only people classify. Thus, if a person is to be treated as no longer “alive” when his brain waves are flat (even if his heart still beats) it should be because people decide that, all in all, that is for the best, for him and for everyone else. Similarly, the relevant legal question ought not to be whether a foetus is “alive” or “a person” from the moment of conception, or the moment of viability, etc., as if the question were one of natural

rather that social decision. A legal decision will still have to be made to whom the law ought to give protection and at what cost, paid by who, and in these borderlands, while “natural” classification remains persuasive and useful as a basis for legal classification, it cannot be dispositive. See also entries beginning with live and lives.