“Brain Dead” Term Too Loosely Used

by Wesley J. Smith, J.D., Special Consultant to the CBC

I have been following the tragic case of Jahi McMath, who went to Oakland Children’s Hospital for a tonsillectomy and suffered a catastrophic complication, resulting in cardiac arrest. According to the media, her doctors later declared her “brain dead” and told the parents she would be removed from life support. After a lawyer’s letter, Jahi’s life support continues.

“Brain dead” is a popular term, not a medical one — and it is too loosely used. Some use it to denigrate the moral value of profoundly disabled patients such as Terri Schiavo, who we now know may be aware and able to recognize family. Slinging “brain dead” as an epithet justifies dehydrating them to death or castigating family members, like the Schindlers, who fight to keep such patients alive — which they legally and biologically are.

In Jahi’s case, brain dead actually means a declaration of “death by neurological criteria,” one of the two legal methods for declaring the bona fide death of a human being. To be declared dead by neurological criteria does not mean there are no brain cells remaining alive. Rather, it means that medical tests, observation of the patient post injury, and history of the case demonstrate that the patient’s brain and each of its constituent parts have irreversibly ceased to function as a brain. As one doctor told me, it is as if the patient was functionally decapitated.

Death by neurological criteria is controversial. Some pro lifers see it as an excuse to harvest organs from living patients, and oppose its use as a clinical method of determining death.

Many bioethicists — of the type who once assured a wary public that brain dead was truly dead — agree (now) that brain dead isn’t dead. But not because they want to stop procuring organs from such people. Rather, they want to expand the pool of donors by obtaining access to the organs of patients with clearly working brains, such as a patient diagnosed as unconscious but who can breathe without medical assistance. In other words, they want to allow killing for organs and they believe that undermining the public’s belief in “brain death” can help them achieve that end.

Under the law, brain dead is “dead” when it connotes death by neurological criteria. In such circumstances, if accurately determined, there is no legal right to continue life support of what is, essentially, a cadaver. This isn’t true — yet — of patients thought to be permanently unconscious. But that may be coming. That may be coming.

A huge problem in this field is that there are no uniform criteria for declaring death by neurological criteria, with testing requirements varying from state to state, and in some instances, hospital to hospital. That needs to change.

My wife, the San Francisco Chronicle columnist Debra J. Saunders, weighs in on the case here.

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