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Let parents decide if teen is dead

By Robert Veatch | 1/2/2014, 4:07 p.m.
After 13-year-old Jahi McMath had a tonsillectomy, she suffered cardiac arrest and loss of blood flow to her brain. Her ...
Nailah Winkfield doesn't know what a new court-appointed independent doctor will say about her daughter, who was declared brain dead after tonsil surgery this month. But she has no doubt about one thing: her plan to keep fighting for her daughter to stay on life support. Photo by CNN.

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Jahi McMath, 13, had a tonsillectomy to correct a form of sleep apnea. After complications, "she is 100% brain damaged. Medically dead," her uncle says. Courtesy of Point & Click Photography.

Editor's note: Robert M. Veatch is professor of medical ethics and the former director of the Kennedy Institute of Ethics at Georgetown University. He is also a professor in the Philosophy Department. He has served as an ethics consultant and expert witness in over 30 legal cases including that of Karen Quinlan (1975-76) and that of Baby K (1992), the child with anencephaly whose mother won the right of access to life support for her.

After 13-year-old Jahi McMath had a tonsillectomy, she suffered cardiac arrest and loss of blood flow to her brain. Her doctors pronounced her "brain dead." But what happened next tragically exposed the challenges and confusion in American medicine over defining death. Is it when the brain stops functioning, or when circulation stops?

By California law, if the brain is dead, the person is dead. According to the law in all American jurisdictions, it doesn't matter how death is measured. Doctors who persist in calling patients "brain dead" are asking for trouble. These doctors have gotten it.

Jahi is on a ventilator. Her parents wanted a second opinion on whether she met the standard tests for the death of the brain. After the second physician confirmed that the criteria were met, the normal next step would have been to pronounce her dead and stop ventilation. But her parents continued to fight, and another extension on turning off her machines was granted. They are scrambling to move her to a facility that will treat her before the court-imposed deadline of January 7.

Now the family of Terri Schiavo has joined the battle. Schiavo's case was another high-profile example of the devastation that happens when there are differences on whether someone is alive and whether to keep that person on support. Terri Schiavo, who was not brain-dead but was severely brain damaged, died in 2005 after her feeding tube was disconnected. Her parents fought for years to keep her alive against her wishes, as expressed by her husband.

The standard tests for the death of the brain are fairly straightforward. It is not a vegetative state -- it is absence of brain activity, and constitutes a legal measure of death in all states. And no law prohibits continued ventilation of a dead body. We do it routinely to preserve organs for transplant. Jahi's parents have decided to try to continue ventilation -- if you call it life-support you are taking a stand on whether she is dead -- so the issues become who will provide the treatment and who will pay.

A significant minority in the medical profession continue to believe people with dead brains and beating hearts are still alive. Believers include some of our wisest minds -- a Harvard professor, an National Institute of Health theorist, a chief of neurology at UCLA, and the former chair of the U.S. President's Council all reject brain-based death pronouncement. They agree with Jahi's parents that death is linked to circulatory loss.

Others take a position more liberal than the standard law that defines brain death. They favor pronouncing death in some cases even when some parts of the lower brain are still functioning. I have defended that view since 1973.