Pope TM. Brain Death Forsaken: Growing Conflict and New Legal Challenges. J Leg Med. 2017 Jul-Dec;37(3-4):265-324.
The eminent neurologist and ethicist, James Bernat, estimated that “critics and skeptics have not gained much traction with lawmakers.” Though true for decades, that assessment is no longer accurate. Critics and skeptics of brain death have moved their arguments from the pages of books and journals to the pages of complaints and motions. They have been using the courts to successfully challenge prevailing and long-standing brain death principles. In other words, what has long been an intellectual and scholarly debate is now increasingly framed as a question of law and public policy. The legal status of brain death is no longer merely a subject for more scrutiny and deliberation. It is now a target for fundamental reassessment of settled practices.
In his classic 1897 essay, The Path of the Law, Oliver Wendell Holmes, Jr. warned against blind imitation of the past and called for enlightened skepticism toward the law. He described the first step of this critical examination as pulling “the dragon out of his cave and on to the plain and in the daylight,” so that “you can count his teeth and claws and see just what is his strength.” The purpose of this article is to get the brain death dragon further out of his cave by summarizing and analyzing three legal attacks on brain death.
Section I establishes the legal status of brain death. As codified in the Uniform Determination of Death Act (UDDA), brain death is legal death everywhere in the United States. Moreover, the implications of this status are clear. Clinicians have no treatment duties after brain death, except for (1) a religious opt-out in New Jersey and (2) temporary duties to accommodate objecting families in three other states. While the law is settled, family resistance is growing. Section II describes the leading reasons for family–clinician conflict.
The rest of the article describes three new court challenges to the legal status of brain death. Section III describes a challenge that contends that prevailing medical criteria do not measure what the law requires. Laws in every state provide that an individual is dead if that individual has sustained “irreversible” cessation of “all” functions of the “entire” brain, including the brain stem.
But the diagnostic tests that clinicians now normally use are not designed to, and cannot, evaluate or ascertain the satisfaction of these rather categorical and absolute standards.
Section IV describes a challenge that contends that clinicians need surrogate consent to administer the apnea test. The apnea test is a key component of brain death assessment. Though families have almost no rights to demand treatment after death, they have effectively used their rights before death. Families that have successfully objected to the apnea test have been able to prevent clinicians from determining brain death. Consequently, they have successfully prevented clinicians from declaring the patient dead and withdrawing organ-sustaining treatment.
Section V describes a challenge that contends that clinicians must indefinitely accommodate religious objections to brain death. The general rule is that clinicians have no duty to continue physiological support after brain death. But this presents a profound problem for patients with religious objections. For these individuals, the denial of physiological support violates fundamental values. Only New Jersey has legislatively granted a complete religious exemption. Some lawsuits contend that exemption is required by constitutional principles….
Despite its widespread adoption, brain death is plagued with significant controversy and criticism. It has been described as “at once well settled and persistently unresolved.” This is no surprise once brain death is recognized as a value judgment instead of as a scientific truth. Determining death cannot be done by “discovering an objective, scientific fact.” Rather, it must be done by “deciding through a social consensus.” Despite sustained attacks, that consensus has held strong.
The most articulate and prolific critic of brain death is Alan Shewmon. He persuasively demonstrates that the bodies of individuals determined dead by neurological criteria still do many of the things done by living organisms. They can maintain “integrated functions” for months or even years. For example, these “brain dead” bodies can still heal wounds, fight infections, and mount a stress response to surgical incisions. They have sexual responsiveness. They can even gestate a fetus.
In short, the array of functions in “brain dead” patients is similar to the array of functions in ventilator-dependent patients with high cervical quadriplegia. This presents a problem of logical consistency. Because the latter are not dead, it seems that brain dead patients should not be dead either. The conceptual foundation for brain death seems less clear than necessary.