When Brain Death Belies Belief
Greg Yanke, JD, MBA, MSBA, Gregory S. Yanke Law Corporation
The case of Jahi McMath has reignited a discussion concerning how society should define death. The 13-year old girl had cardiac arrest following a tonsillectomy procedure in December 2013. Although neurologists subsequently pronounced McMath brain dead based on the American Academy of Neurology criteria, her family demanded continuation with mechanical ventilation. Despite the declaration of death, the court did not authorize the hospital to discontinue McMath’s mechanical ventilation. Instead, the judge granted successive temporary restraining orders allowing McMath’s family time to transfer her to New Jersey, a jurisdiction that allows rejection of the concept of brain death for religious reasons. In the aftermath of the court hearings and eventual settlement, academics and clinicians have focused primarily on the degree to which brain death equates with biological death. However, they have paid less attention to the right of the individual to reject the concept of brain death on religious or secular grounds.
Some scholars attributed the McMath controversy to the public’s misunderstanding of brain death. Most bioethicists acknowledge that brain death and biological death are not identical. Brain dead humans have functioning vital organs, continue to digest and excrete, grow and develop, and can even reproduce. As well, many see the concept as necessary to facilitate the donation of viable organs while concurrently deeming the donor legally dead. Some argue that a brain dead person is “as good as dead” since recovery of consciousness is either impossible or extremely unlikely. However, this is a normative claim regarding personhood rather than a mere diagnosis, which may conflict with the personal religious belief that death does not occur until circulation and respiration have irreversibly ceased.
When medical constructs and religious belief conflict, as in the McMath case, who has the right to determine what constitutes death? From a legal perspective, there is the potential for a constitutional challenge to the neurologic criteria of death provisions of the Uniform Determination of Death Act on grounds of religious freedom. The success of such a challenge is conceivable given the judiciary’s recent trend toward favoring autonomy and diversity of belief, and statutes that protect the exercise of religion even if the law involved is of general application.
Because brain death has a public policy component, it involves a consideration of the normative and not merely the scientific. From an ethics standpoint, permitting different conceptions of death may promote the principles of autonomy, beneficence, and non-malfeasance. Though physicians argue that one cannot harm a patient whose brain function has ceased, regardless of whether this premise can be scientifically substantiated, this involves philosophical assumptions regarding when a patient’s interests terminate and ignores the interests of the family. If the concept of brain death serves the public policy goal of realizing the benefits of organ donation, then it should also be modified to allow people to follow their religious beliefs and personal values when the medical facts are in dispute.
The case of Jahi McMath has reignited a discussion concerning how society should define death. The 13-year old girl had cardiac arrest following a tonsillectomy procedure in December 2013. Although neurologists subsequently pronounced McMath brain dead based on the American Academy of Neurology criteria, her family demanded continuation with mechanical ventilation. Despite the declaration of death, the court did not authorize the hospital to discontinue McMath’s mechanical ventilation. Instead, the judge granted successive temporary restraining orders allowing McMath’s family time to transfer her to New Jersey, a jurisdiction that allows rejection of the concept of brain death for religious reasons. In the aftermath of the court hearings and eventual settlement, academics and clinicians have focused primarily on the degree to which brain death equates with biological death. However, they have paid less attention to the right of the individual to reject the concept of brain death on religious or secular grounds.
Some scholars attributed the McMath controversy to the public’s misunderstanding of brain death. Most bioethicists acknowledge that brain death and biological death are not identical. Brain dead humans have functioning vital organs, continue to digest and excrete, grow and develop, and can even reproduce. As well, many see the concept as necessary to facilitate the donation of viable organs while concurrently deeming the donor legally dead. Some argue that a brain dead person is “as good as dead” since recovery of consciousness is either impossible or extremely unlikely. However, this is a normative claim regarding personhood rather than a mere diagnosis, which may conflict with the personal religious belief that death does not occur until circulation and respiration have irreversibly ceased.
When medical constructs and religious belief conflict, as in the McMath case, who has the right to determine what constitutes death? From a legal perspective, there is the potential for a constitutional challenge to the neurologic criteria of death provisions of the Uniform Determination of Death Act on grounds of religious freedom. The success of such a challenge is conceivable given the judiciary’s recent trend toward favoring autonomy and diversity of belief, and statutes that protect the exercise of religion even if the law involved is of general application.
Because brain death has a public policy component, it involves a consideration of the normative and not merely the scientific. From an ethics standpoint, permitting different conceptions of death may promote the principles of autonomy, beneficence, and non-malfeasance. Though physicians argue that one cannot harm a patient whose brain function has ceased, regardless of whether this premise can be scientifically substantiated, this involves philosophical assumptions regarding when a patient’s interests terminate and ignores the interests of the family. If the concept of brain death serves the public policy goal of realizing the benefits of organ donation, then it should also be modified to allow people to follow their religious beliefs and personal values when the medical facts are in dispute.