Redefining Death in the Law

By: Gali Katznelson

Jahi McMath was issued a death certificate four years ago in California. Today, at the age of 16, she remains connected to a ventilator in an apartment in New Jersey. Jahi was declared brain dead by her clinicians at Oakland’s Children’s Hospital following a cardiac arrest after a tonsillectomy. A legal battle between Jahi’s mother and the hospital ensued, with the mother requesting that Jahi remain on life support. The hospital refused, and after the hospital released Jahi to a coroner who issued her death certificate, Jahi’s family transported her to a paediatric ICU in a New Jersey hospital. New Jersey is the only state with a law requiring hospitals to accommodate patients whose families do not accept a determination of brain death on religious grounds.

Religious objections to brain death come from some members of the Orthodox Jewish, Japanese Shinto, Native American and Muslim communities. New York, California and Illinois also mandate accommodations for religious objections to brain death but these states leave the nature of the accommodation to the discretion of individual hospitals. This is unlike New Jersey, which allows an exception to brain death criteria and imposes a duty to accommodate patients who reject brain death state-wide. Should all states enact some form of a religious accommodation to brain death? To consider the same person to be alive in one part of the country but dead in another seems illogical. But rather than adapting current laws to accommodate objections based on religion, a more coherent approach might be to redefine the nature of the law itself.

As it stands in the US, the determination of brain death by neurological criteria is equated to a legal definition of death. This history dates back fifty years, to a report by the Harvard Ad Hoc Committee on Brain Death that defined irreversible coma as a new criterion for death. Neurologic criteria for death eventually made its way into law through the 1981 Uniform Declaration of Death Act (UDDA). This model statute states that death could be determined for an individual who has sustained either irreversible cessation of circulatory and respiratory functions, or irreversible cessation of all functions of the entire brain, including the brain stem, made in accordance with acceptable medical standards. Every state has adopted some version of this statute.

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Thinking about brain death

By Seema Shah

It astonishes me how many people do not realize the controversial nature of “brain death” and the fact that it is not the same as death. There is a substantial body of literature showing that brain death is not the equivalent of death. The President’s Council on Bioethics issued a white paper in 2008 acknowledging the deficiencies with our current approaches to determining death. The literature on the topic is fascinating—some brain dead individuals have gestated babies successfully to viability and gone through puberty. Many brain dead individuals can heal wounds, regulate their body temperatures, and persist on ventilators for many years. (If you are unfamiliar with this literature and want to read further, see the citations provided below.)

Frank Miller and I have argued that best the way to think about the status quo is that brain death is a status legal fiction, much like the legal construct that a corporation is a person. A corporation is similar enough to a person that it is convenient to treat corporations as persons under the law, rather than writing an entirely new body of law meant to apply to corporations alone. We have argued that brain death is similar to death—Frank Miller and Bob Truog express this by saying that a person who is brain dead is “as good as dead.” For this reason, we can ethically and legally treat the two states in the same way for the purposes of determining death and allowing vital organ transplantation.

There are many open and interesting questions about brain death that I will be exploring on this blog for the next few weeks. Michael Nair-Collins has a recent article in the Kennedy Institute of Ethics Journal that argues that the current approach to determining death in the U.S. is paternalistic and, presumably, unjustified. He cites as evidence the kinds of information that are shared with people deciding whether to become organ donors. But is this true, or is there evidence that the public is able to distinguish between brain death and death? Kenneth Kasper, Frank Miller, and I are investigating this at the moment, and we are finding some surprising answers in the literature. Read More