Recent news stories have raised some interesting questions, along with many emotions and much controversy, about the legal definition of death. In light of these highly publicized cases, medical experts have argued for different indicators of death, while judges have intervened in to protect patients’ rights. In one instance, the issue of when life legally begins is entangled in the question of when it legally ends. As these stories perhaps highlight a void in the law, the question is raised: should there be a better definition of death?
The Case of Jahi McMath
On December 9, 2013, Jahi McMath, a 13-year-old California girl, underwent a tonsillectomy and adenoidectomy in an effort to treat pediatric obstructive sleep apnea. She suffered from cardiac arrest, and on December 12, 2013, was declared brain-dead. Since that time, Jahi’s family has fought to keep her on a ventilator despite several statements made by the hospital treating Jahi, Children’s Hospital and Research Center Oakland (CHO), that “the only thing maintaining this child is a ventilation machine” and “when one’s brain ceases to function, it never restarts”. It was reported that in late December CHO asked the Superior Court of Alameda County to order that the ventilator be removed from Jahi’s body and, after testimony from physicians who concluded that Jahi met the criteria of being brain-dead, the judge found it had no power to stop CHO from terminating life support. However, before the order to disconnect the ventilator was carried out, Jahi’s family through their attorney, Christopher Dolan, filed a complaint for declaratory relief and request for temporary restraining order (TRO) in federal court, requesting that CHO be ordered to continue to keep Jahi on the ventilator and insert a gastric tube and tracheostomy tube so that she may be transferred to another health care provider. On January 6, 2014, the California district court denied the TRO petition as moot, stating that the parties were able to come to an agreement in the parallel state case. That day, CHO released Jahi to the coroner’s office, which then transfered her to the care of her mother, who reported Jahi would be taken to an undisclosed health care facility of the family’s choice.
Though the controversy between CHO and Jahi’s family may have been resolved, at least temporarily, questions remain. Specifically, how did a medical determination of death confirmed by a judge’s order come undone? Moreover, what does this mean for future cases like that of Jahi McMath?
According to the Uniform Law Commission, the Uniform Brain Death Act of 1978, in an attempt to clarify the definition of death as technological advances made traditional determining factors obsolete, defined death as “irreversible cessation of all functioning of the brain, including the brain stem.” However, confusion ensued as some did not interpret this factor alongside the notion of using traditional indicators of death as well, and in 1980 the Uniform Determination of Death Act (UDDA) added the following language as an alternative to the brain death determination: “irreversible cessation of circulatory and respiratory functions.” Most states have adopted the UDDA, including California. A 2010 American Academy of Neurology study confirmed its brain death guidelines, concluding that “[i]n adults, there are no published reports of recovery of neurologic function after a diagnosis of brain death using the criteria…” A clinical report adopted by the American Academy of Pediatrics incorporated additional guidelines for determining brain death in children under 18.
The Definition of Life
In a related story that seems to question the boundaries of life and death from a different perspective, the husband of a pregnant Texas woman, who has been declared brain-dead, is suing the hospital who refuses to take her off life support. In this case, it has been reported that although the family supports the termination of life-sustaining methods, the hospital will not honor those wishes because it claims that the Texas Advance Directive Act prohibits the removal of life-support on a pregnant patient. The woman’s family reportedly argued in court documents that she cannot be the subject of the Texas Act as she is no longer a patient, due to her diagnosis of brain death. Other critics of the hospital’s decision were noted to argue that since the fetus is not viable, the woman, if considered alive, would have a constitutional right to an abortion.
The distress caused by these stories cannot be denied. Yet, in a legal sense, as these stories illuminate the highly controversial issues of life and death, especially in the face of uncertainty created by technological advances, is there an argument to be made for more or less law concerning the shaky ground between life and death?