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Let parents decide if teen is dead

By Robert Veatch | 1/2/2014, 4:07 p.m.
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.

Why, then, does American law continue to force one standard of death on Jahi's parents and others who have plausible alternative definitions? Once one realizes that the choice among the options is not a cut-and-dried matter of medical science, why not let people have some choice based on their personal religious and cultural views?

This is a "conscience-based" approach to defining death. We need to have a default public policy -- the brain-based definition currently in law -- but people like Jahi's parents should have the option to record their conscientiously held positions and allow pronouncements of death to be based on those beliefs. That's the law in New Jersey and Japan. That would mean Jahi could be classified as alive if that is what her parents choose.

That, of course, doesn't end the controversy. Just like it is not illegal to provide medical support for dead people, it is not necessarily illegal to stop life-support on someone who is still alive. We do that every day, particularly for those who are permanently unconscious.

The trouble arises when physicians want to stop life-support, perhaps because they believe the case is hopeless, and the patient or family insist that life support continue. We call this the "futile care problem." I defended in court the mother of a severely brain-damaged baby referred to as Baby K who wanted life support to continue even though her doctors wanted to stop. Society should show sympathy for mothers who want their children to be kept alive.

If preserving life requires high-tech support like a ventilator, doctors are the ones who should provide it. The costs shouldn't be borne by the hospital. The health insurance company or Medicaid shouldn't pay. But if the family can raise the funds, like Jahi's parents are doing, and the patient is beyond feeling pain, no harm is done by continuing, especially if they can find a facility willing to take the case.

Whether this right to medical support should extend to those considered dead by one standard, but alive by another is the question we face with Jahi McMath. If the patient does not suffer, and private funding is available, people should have the right to make this decision for their loved ones.

The opinions expressed in this commentary are solely those of Robert Veatch.

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