Dobbs Offers Lessons for the Brain Death Debate
COMMENTARY: Medical knowledge advances and our laws must change accordingly.
The Supreme Court case Dobbs v. Jackson Women’s Health Organization will determine whether the 1973 Court decision Roe v. Wade, which allows for unrestricted abortion, will remain standing.
Roe is being reassessed, in part, because advances in medical technology have made the age of viability younger and allowed more detailed visualization of unborn life in the womb. The issue of abortion is not, however, the only issue pertaining to life and death which merits reassessment.
Last month, during oral argument for Dobbs, U.S. Supreme Court Justice Sonia Sotomayor called attention to the issue of brain death. Beginning with the premise that brain death is valid, she sought to undermine the claim that a fetus is worthy of protection under the law. This raises the question: Is, in fact, a declaration of brain death valid?
The concept of brain death was introduced in 1968 by an influential Harvard Medical School committee, which defined “irreversible coma as a new criterion for death,” disregarding the fact that to be in a coma is not to be dead but alive.
In 1981 an authoritative federal bioethics commission approved the Uniform Determination of Death Act (UDDA) to serve as model legislation for state lawmakers. The UDDA says that a person can be legally declared dead in one of two ways: either the traditional way, in which circulation and respiration stop followed by cessation of all signs of life, or a new way called “brain death.” All 50 states have adopted the UDDA, albeit with slight variations.
In contrast to laws pertaining to the beginning of life, laws pertaining to the end of life were passed without fanfare — in fact, few people today know that the definition of death changed 54 years ago.
Since brain death was introduced, compelling evidence has been compiled that the notion of brain death does not correspond to medical reality. In other words, a brain-dead patient is not, in fact, dead.
Recently a pig kidney was attached to a brain-dead patient and “functioned normally.” The New York Times hailed this achievement with an article titled, “In a First, Surgeons Attached a Pig Kidney to a Human, and It Worked.” This action raises serious bioethical questions about the morality of using brain-dead patients to test organ transplants from animals. However, the more fundamental question remains: If a brain-dead patient were truly dead, how could a transplanted kidney function normally? In other words, if a brain-dead patient were actually a corpse, a more appropriate title for the article would be, “In a First, Surgeons Attached a Pig Kidney to a Dead Body, and It Worked.” That would have been a true medical miracle!
Moreover, there is a growing number of cases which demonstrate we cannot accurately diagnose brain death in the first place. The case of Jahi McMath, who was declared brain dead in 2013 at the age of 13, received substantial media attention. After being assigned a death certificate by the state of California in December 2013 following a declaration of brain death, Jahi lived another four and a half years before “dying again” in New Jersey. Medical evidence is conclusive that Jahi was never actually brain dead.
Earlier this year, a group of 107 experts on the issue of brain death signed a joint Statement published in The Journal of Medicine and Philosophy. The modest proposal was made that persons deserve a right to informed consent with regard to a declaration of brain death and that conscience protection safeguards should be in place for those who do not accept brain death criteria.
Medicine is not a static science. Our laws should reflect the most current medical knowledge. Just as society is rightly reassessing abortion in this light, so also should we reassess the validity of a declaration of brain death.