State v. Fierro (1979), 124 Ariz. 182, 603 P.2d 74; Swafford v. State (Ind. 1981), 421 N.E.2d 596; Commonwealth v. Golston (1977), 373 Mass. 249, 366 N.E.2d 744; State v. Meints (1982), 212 Neb. 410, 322 N.W.2d 809; New York City Health Hospitals Corp. v. Sulsona (1975), 81 Misc.2d 1002, 367 N.Y.S.2d 686. In Colorado, the total brain death concept of death was adopted legislatively (Colo. Rev. Stat. sec. 12-36-136 (Cum. Supp. 1982)), after it was recognized judicially ( Lovato v. District Court (Colo. 1979), 601 P.2d 1072). See also Determination of Death 26-27.
See Biorck, When is Death?, 1968 Wis.L.Rev. 484, 493. See also Lovato v. District Court, 198 Colo. 419, 426 n. 4, 601 P.2d 1072, 1076 n. 4 (1979) (en banc) (authorities describing these advances). To cope with this circumstance, numerous responsible organizations and authorities have made efforts to arrive at a statutory statement of the meaning of "brain death."
See: Lovatov. District Court in and for the Tenth Judicial Dist., 198 Colo. 419, 426 n. 6, 601 P.2d 1072, 1076 n. 6 (1979). A patient who is brain dead, on the other hand, is non-responsive to all stimuli, unable to breathe independently, and displays absolutely no reflexive movements.
Brain death, on the other hand, includes the destruction of all portions of the brain, including respiratory control centers, and so results inevitably in the cessation of spontaneous somatic functions such as respiration and heartbeat. The former condition is not recognized as tantamount to death by the medical community. National Institute of Neurological and Communicative Disorders and Stroke, An Appraisal of the Criteria of Cerebral Death: A Summary Statement 237 J.A.M.A. 982 (1977); Lovato v. District Court In For Tenth Jud., (1979) Colo., 601 P.2d 1072 n. 6. We consequently emphasize that we are not here concerned with the question whether and when artificial life support should be withdrawn from a person in a permanently vegetative state.
B. The guardian ad litem argues that our decision in Lovato v. District Court, 198 Colo. 419, 601 P.2d 1072 (1979), provides the necessary authority for a juvenile court to transfer legal custody at a shelter hearing. The guardian ad litem's argument, in our view, engrafts on Lovato an interpretation far broader than is supportable by the holding in that case.
The definitions used in instruction No. 10 followed, in substance, the standards which are now generally accepted for use in determining whether brain death has occurred. As the Colorado Supreme Court stated in Lovato v. Dist. Ct., 198 Colo. 419, 601 P.2d 1072 (1979), in referring to the 1968 report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death: "These criteria constitute the basis of accepted medical standards for determination of brain death." Id. at 426, 601 P.2d at 1076.
Section 2-4-211, C.R.S. (2021), which no party raised in this case, does not suggest that the legislature has tacitly adopted the common law rule. It is not clear to us that that statute, which adopts portions of the common law of England in existence prior to 1607, at least until repealed by legislative authority, id., even applies here, see Lovato v. Dist. Ct., 198 Colo. 419, 601 P.2d 1072, 1075 (1979) (recognizing "that the statutory adoption of the common law is limited to the extent that it is reasonable to apply the English common law to the needs and conditions of our state"). Nor have we ever construed this statute to preclude us from departing from existing precedent in appropriate cases.
”); State v. Fierro, 124 Ariz. 182, 603 P.2d 74, 77–78 (1979) (“We believe that while the common law definition of death is still sufficient to establish death, the test of the Harvard Medical School or the Commissioners on Uniform State Laws, if properly supported by expert medical testimony, is also a valid test for death in Arizona.”); Lovato v. Dist. Court in & for Tenth Judicial Dist., 198 Colo. 419, 601 P.2d 1072, 1076 (1979) (“These [Harvard] criteria constitute the basis of accepted medical standards for determination of brain death.”); State v. Guess, 244 Conn. 761, 715 A.2d 643, 648 (1998); Janus v. Tarasewicz, 135 Ill.App.3d 936, 90 Ill.Dec. 599, 482 N.E.2d 418, 422 (1985) (citing to the Harvard criteria as “widely accepted characteristics of brain death”); Swafford v. State, 421 N.E.2d 596, 599 (Ind.1981); Commonwealth v. Golston, 373 Mass. 249, 366 N.E.2d 744, 747 (1977) (“The Harvard Committee developed basic clinical criteria, which are generally accepted by the medical community.
As section 2-4-211 states, Colorado adopts the common law of 1607 insofar as it is "applicable and of a general nature." See also Lovato v. Dist. Court, 198 Colo. 419, 425, 601 P.2d 1072, 1075 (1979); Vogts v. Guerrette, 142 Colo. 527, 533, 351 P.2d 851, 855 (1960); Crippen v. White, 28 Colo. 298, 302, 64 P. 184, 185 (1901). The Secretary of State also asserts that the Attorney General has violated the Colorado Rules of Professional Conduct by naming her as the respondent.
Then, in 1980, the National Conference of Commissioners on Uniform State Laws, in concert with the American Medical Association and the American Bar Association, drafted the Uniform Determination of Death Act, which created alternative standards for determining death: either the traditional irreversible cessation of circulatory and respiratory functions, or the irreversible cessation of all functions of the entire brain including the brain stem, "a determination to be made in accordance with accepted medical standards." Annot., 42 A.L.R.4th, supra, 747; see footnote 4 of this opinion; Harvard Committee, supra, 237 JAMA 982 (brain death is permanent cessation of all brain functions; unless sustained by mechanical support, cessation of somatic functions follows inevitably from this condition); see also Lovato v. District Court, 198 Colo. 419, 433, 601 P.2d 1072 (1979) (adopting brain death standard in addition to death as traditionally defined); Commonwealth v. Golston, 373 Mass. 249, 257, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54 L.Ed.2d 788 (1978) (jury instruction that brain death satisfies element of crime requiring proof of death properly incorporated significant technological advances); In re Quinlan, 70 N.J. 10, 18, 355 A.2d 647, cert. denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976) (granting father's request to be appointed guardian of comatose daughter to exercise on her behalf constitutional right of privacy to decline medical treatment); In re Bowman, 94 Wash.2d 407, 421, 617 P.2d 731 (1980) (providing for brain death standard in addition to circulatory and respiratory function standard to define death). Black's Law Dictionary also responded to the advances in medical science in 1979 when it included for the first time a definition of "brain death" that provides in pertinent part: "Characteristics of