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In re T.A.C.P.

Citation. In re T.A.C.P., 609 So. 2d 588, 17 Fla. L. Weekly S 691 (Fla. Nov. 12, 1992)
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Brief Fact Summary.

The parents (Plaintiff) of an anencephalic child sought to have their child declared dead so that her organs could be donated.

Synopsis of Rule of Law.

For purposes of organ donation, an anencephalic newborn is not “dead” solely because of its congenital deformity.


The parents (Plaintiff) of the child T.A.C.P. were informed that their child would be born without an upper brain, or anencephalic.  The Plaintiffs hoped that others could benefit in the face of their loss, and they sought a declaration that the child was “dead,” so that her organs could be donated.  The health care providers feared liability and refused.  The Plaintiffs then sought a legal ruling on the matter.  The question of the definition of death was certified by the appellate court and forwarded to the Supreme Court of Florida.


For purposes of organ donation, is an anencephalic newborn “dead” solely because of its congenital deformity?


(Kogan, J.)  No.  For purposes of organ donation, an anencephalic newborn is not “dead” solely because of its congenital deformity.  Florida generally defines death as cardiopulmonary failure.  An exception exists for whole-brain death when the heart is kept operable by artificial means.  Here, the anencephalic infant does not fit either definition.  Though she lacks an upper brain, the child’s heart will work for a short time, and some primordial brain function exists.  While this policy issue is tremendously important, there is no sufficiently sound reason under the current law to extend the definition of death to include anencephaly.  Because the newborn was not dead, donation of her organs would have been illegal.


There is no hope that an anencephalic infant will survive.  They are not conscious and most likely do not have any pain response.  Because of the need for infant organs, it is difficult not to consider anencephalic infants as a source for these organs.  In 1995, a medical council concluded that it was ethical to use organs from an anencephalic infant who was not dead yet so long as parental consent was obtained, along with other precautionary measures.

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