We must stand firm on brain-death standard, says an article in NEJM

by Michael Cook

8 Feb 2014


Two recent controversies over “brain-dead” patients have obviously flustered some medical ethicists. Writing in a commentary in the New England Journal of Medicine, David C. Magnus, Benjamin S. Wilfond, and Art Caplan insist that the definition of death as brain death must be maintained.

[More and more critics, like myself, are calling the attention of the general public that brain death is a legal fiction, not real death.  Real death is when the complexus of vital functions completely fail; those functions are a beating heart, functioning lungs and the brain.  All three functions must end  before human life ends.  The brain can “die” and yet the other two functions can continue.  Yes, it is true that they continue with the help of a ventilator, but a ventilator does not force the lungs to function, it only forces air into the lungs and then the lungs extract the oxygen naturally and expel the carbon dioxide naturally.  A ventilator is not an iron lung, it is simply an air pump that pushes some air into the lungs; the natural reflexes of the body takes over at that point and naturally expels the carbon dioxide that has accumulated in the blood naturally. – Abyssum] .

In Fort Worth, Texas, the relatives of 33-year-old Marlise Muñoz, a woman who was 14 weeks pregnant, wanted her to be taken off life support after they learned in November that she was brain-dead. But her hospital refused, believing that it would be breaking a Texas law which mandated life support of pregnant women to save the life of a foetus.

[And indeed, the hospital would have been breaking Texas law which mandates the providing of all assistance to the mother in order to bring the infant to 24 weeks of age when it can be born through a caesarian section operation.  What is required of the hospital is that it provide the mother with adequate medical treatment including especially adequate nutrition and hydration so that the mother can supply the fetus with the necessary nutrition through the placenta for the normal growth of the fetus to reach viability outside the womb after 24 weeks of gestation.  It would appear from the comments of the father, Erick Munoz, and his attorneys that the hospital probably did not supply Marlise with adequate nutrition since they spoke to the media about Marlise’s skin changing color and feeling cold.  Supplying a patient with water, sugar and salt intravenously is not supplying adequate nutrition and hydration necessary for the proper growth of the fetus. – Abyssum] .

At the other side of the country, in Oakland, California, 13-year-old Jahi McMath was declared brain-dead in December and the hospital recommended that she be taken off life support. Her relatives refused. How should such stand-offs be resolved?

[In the case of Marlise Munoz a civil judge (not a qualified medical expert) ordered that she be killed by the withdrawal of the scandalously little medical treatment that she was receiving.  In the case of Jahi McMath another civil judge likwise ordered the withdrawal of the medical treatment she was receiving, but before the hospital could ‘pull the plug’ her parents succeeded in transferring her to a different medical facility where, hopefully, adequate medical treatment will give her an opportunity in time to revive. – Abyssum] .

The authors insist that the medical profession and the law must draw a line at brain death. On one side of that line, patients are alive. On the other, they are dead. Too much is at stake, they argue.

[The absurdity of the preceding four sentences should be apparent to anyone who has a brain and uses it.  How can a person be dead if the person’s blood is still coursing through the person’s body and the person’s lungs are still functioning, although with the assistance of a ventilator.  Before the law can correct its mistake in adopting brain death as the definition of death, the pars sanior of the medical profession, those medical professionals with a conscience and a sense of justice must begin to disregard brain death as true death of a person. – Abyssum] .

The determination of death is a highly significant social boundary. It determines who is recognized as a person with constitutional rights, who deserves legal entitlements and benefits, and when last wills and testaments become effective. Sound public policy requires bright lines backed up by agreed-on criteria, protocols, and tests when the issue is the determination of death. The law and ethics have long recognized that deferring to medical expertise regarding the diagnosis of brain death is the most reasonable way to manage the process of dying. Nothing in these two cases ought to change that stance. . What about grieving families? Should they have a say in the matter? Not really, say the authors. A brain-dead person is a dead person. The feelings of the family must be taken into account and it is only humane and politic to give them a few days for the truth to sink in. But in the end, the family is clearly wrong about the facts of the case.

[The parents of Jahi McMath on the contrary are clearly right about the facts of the case.  They refuse to accept the legal fiction that a group of medical people who gathered at Harvard University in 1967 had the divine right to declare that brain death is true death.  Their basic instincts tell them that their child whose heart is still beating and whose lungs are still functioning is not yet dead.  Jahi may die sooner or later, but her parents want to fight to restore her to full health. – Abyssum] .

“Proponents of allowing family members to determine death threaten to undermine decades of law, medicine, and ethics… Families often need time to accept death, and that can be particularly complicated in cases of brain death. For the family’s benefit, a short-term accommodation can be ethically justified. But these psychological realities do not undermine the important social construction of death when the brain has ceased all meaningful activity.

[What the authors of the article are not telling us is that their position is largely the result of the phenomenal growth of the organ transplant industry which has now become a multi-billion dollar industry based on death.  Prior to the first successful heart transplant by Dr. Christiaan Barnard in Southh Africa in 1967.  The transplantation of human organs was a relatively rare medical procedure.  The transplantation of a human heart costs almost one million dollars.  The obstacle the medical profession faced in doing more transplants was that a human organ MUST BE TAKEN FROM THE LIVING BODY OF THE DONOR for it to be useable in a transplantation.  It only one year for the medical profession to gather at Harvard University in 1968 and to propose the definition of brain death as the legal definition of death.  Thirteen years later, in 1981  another conference proposed the The Uniform Determination of Death Act (UDDA)  a draft state law that was approved for the United States in 1981 by the National Conference of Commissioners on Uniform State Laws, in cooperation with the American Medical Association, the American Bar Association, and the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. The act was subsequently been adopted by most US states and is intended “to provide a comprehensive and medically sound basis for determining death in all situations”.  With the adoption of the UDDA the transplantation of human organs took off and grew rapidly to become the monster that it is today.  That is not to say that some organ transplants are not of great benefit to the recipients, but they should not occur with organs taken from a living person.  –  Abyssum]

Will articles like this settle the question? Perhaps not. Magnus, Wilfond and Caplan frame their argument in terms of good public policy, rather than proving that brain death is death. In fact, they imply that patients in a permanent vegetative state could be also “defined” as dead. “Although one could conceivably draw the line somewhere else, such as loss of cognitive functioning, the reliability and social consensus that has emerged around brain death as death is reflected in the broad legal agreement under which brain death is recognized in every state.”

[We have already entered into the brave new world foreseen by so many writers.  -Abyssum]

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas