Tragic Disputes Over Continued Care Underscore the Power of Words

Is a person declared brain dead really dead, or only “pretty dead”? In the wake of several recent heart-wrenching situations that have made the news, questions about the viability of the “brain death” standard take on new urgency.

Jahi McMath was declared brain dead after she suffered cardiac arrest following a tonsillectomy that somehow went terribly wrong. Her family successfully fought the hospital’s attempts to remove Jahi from life support and eventually succeeded in having her transferred to a facility that will continue to provide care. In her case, the experts disagreed: some stated that Jahi was past all hope—that she was gone. Others disputed whether the diagnosis of death was correct. After all, Jahi still has a functioning circulatory system, still moved in response to stimuli, and still maintained body temperature.

For unknown reasons, Marlise Munoz collapsed on her kitchen floor where she was later discovered by her husband. Medical intervention proved ineffective and she was declared dead. Keeping Ms. Munoz on life-support, however, allowed the continued gestation of her14-week-old unborn child. As has been proven in other cases, a “brain dead” mother can continue to gestate a child. But a dispute ensued between the hospital—which wanted to follow Texas law to continue to care for the child—and the family who wanted to end life support. Last week, a judge determined that the hospital could not continue life support in the face of the husband’s opposition. The hospital did not appeal the decision and took Ms. Munoz off the respirator, leading to her death and the death of her unborn child.

In both of these tragic circumstances, we are reminded that words—names, what we call things—have consequences. It is only within the last thirty years that legal definitions have begun to include “brain death” as a definition of death. It is staggering to realize that when adopting this legal definition of death, lawmakers relied not on clinical research or documented cases, but rather on a four-page article by a Harvard Ad Hoc Committee. For more on this, see Dick Teresi, “The Beating Heart Donors” Discover Magazine, May 2, 2012. Yet the legal definition of death has consequences, some of which we are only beginning to see.

Since the terminology “brain death” has come into common usage, it has allowed use of the term “corpse” to refer to someone who is on a respirator. Formerly, it might have been said that they are “being kept alive by machines,” but now there is a denial that they are alive at all.

Attorneys for Mr. Munoz argued that the Texas statute that prohibited “life-sustaining treatment” from being withdrawn from pregnant women did not apply because Mrs. Munoz was not alive. Because she was dead already, she could not be getting life-sustaining treatment. All the hospital was doing was disturbing a corpse. As many have pointed out, this resulted in a death sentence for the unborn child in her still-functioning womb.

Where is this headed? As we are seeing, statutes that allow for health care agents to make treatment decisions for incapacitated persons will be held not to apply to “brain dead” patients, because there is no longer a patient for whom the agent is acting. Would a statute that requires transfer of a patient when the medical provider declines to provide the requested treatment apply to a brain dead individual? The battle fought by Jahi McMath’s family involved that very issue.

Words matter. Maybe it is time to remember that a declaration that a patient is “brain-dead” does not mean the patient is not alive.

Author: Life Legal

The Life Legal Defense Foundation is a non-profit law firm that specializes in the defense of vulnerable human life, especially life in the womb.