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Brain Death and the Law: Hard Cases and Legal Challenges

2018; RELX Group (Netherlands); Linguagem: Inglês

1556-5068

Thaddeus Mason Pope,

Palliative Care and End-of-Life Issues

The determination of death by neurological criteria — “brain death” — has long been legally established as death in all U.S. jurisdictions. Moreover, the consequences of determining brain death have been clear. Except for organ donation and in a few rare and narrow cases (such as pregnancy in some states), clinicians withdraw physiological support shortly after determining brain death. Until recently, there has been almost zero action in U.S. legislatures, courts, or agencies either to eliminate or to change the legal status of brain death. Despite ongoing academic debates, the law concerning brain death has remained stable for decades. However, since the Jahi McMath case in 2013, this legal certainty has been increasingly challenged. The persistent salience of this case has spurred other families to challenge clinicians as well. Many of these cases have been litigated in the spotlight of judicial and media scrutiny, further exposing long-standing yet little-known fractures in brain death’s biological and conceptual foundations. Admittedly, some families have always had concerns with brain death, whether emotional, biological, or psychological. What has changed over the past five years is that more families have been emboldened to translate their concerns into legal claims challenging traditional brain death rules. While novel, these claims are not frivolous. Therefore, it is important to understand these claims so that we can address them most effectively. Those challenging the legal status of brain death have made three distinct types of claims: that prevailing medical criteria fail to measure what the law requires, that clinicians must obtain family consent before conducting brain death diagnostic tests, and that clinicians must accommodate religious objections to brain death.