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What do I think of the Jahi McMath case?

Some readers may be wondering whether I am going to weigh in on the case of Jahi McMath. Here is the latest news story on that situation, and you can research it further from there.

I have said for years that when it comes to brain death, the pro-lifer has to be constantly pushing in two different directions: On the one hand, the genuine attempt to diagnose the cessation of function of every part of the human brain is arguably a fairly rigorous approach, if we must be diagnosing death in some way other than the commonsense way of having people's hearts and breathing stop, waiting for them to get cold and declaring them dead. It's important to emphasize the rigor of the criteria for what is deemed to be true brain death in order to distinguish the narrow, medico-legal notion of brain death from a so-called "persistent vegetative state," which unfortunately even some medical personnel and lots of laymen call "brain death," but which is vastly different. In a so-called PVS there is no question of the cessation of activity of the patient's brain stem. The patient breathes on his own and even has sleep-wake cycles. On the other hand, a patient diagnosed as brain dead by the rigorous criteria that are supposed to be used cannot breathe on his own, and the claim is that his brain stem as well as his upper brain has completely ceased to function. That's an important distinction.

It's also important because all of this gets tangled up with organ transplant. Arguably taking organs from someone diagnosed as brain-dead is more defensible than taking them by the infamous Pittsburgh Protocol, even though the PP is weirdly defended by some opponents of brain death. The problem with the Pittsburgh Protocol is that the rush to get the organs "fresh" makes it pretty definite that the person is not even brain-dead when they are taken. Most macabre of all, in the PP the patient is reconnected to oxygenating machines, meaning that he may be accidentally revived (!!) if the flow of oxygen to the brain is not artificially blocked. Which is horrible and blatantly immoral and makes brain death harvesting almost look good by comparison. I discuss that in the second half here.

But that's only one side of the story. On the other hand, the pro-lifer needs to acknowledge disturbing information that has emerged indicating that many people diagnosed as brain dead even by these more rigorous criteria do, in fact, have more brain functions than they "should" have. As I noted here in the first half, some have thermoregulation, which, plausibly, indicates operation of a part of the brain. Some grow, which indicates function of the pituitary. (By the way, I linked in one of the earlier posts to the report from President Bush's bioethics council on the determination of death in which they discuss brain death. That link is now non-working, so here is a working link where you can obtain the entire report in PDF form. My page numbers given in the earlier post are still accurate. The PDF appears to be the same.)

Most disturbingly of all, if the organs of those diagnosed as brain dead are in fact taken for transplant, some show apparent pain responses to the surgery, leading to the practice of using anesthetics on them despite the fact that they have been declared dead!

In the Jahi McMath case, thank goodness, no organ transplants are in the picture. The hospital simply wanted to turn off the ventilator, and the family wanted it continued.

Let me make it clear that, even assuming that Jahi is alive, I do consider ventilator breathing support to be extraordinary care and therefore permissible to discontinue. Whether the hospital should decide to discontinue it unilaterally is another question. The hospital's idea was that, with a declaration of death (now obtained from a coroner after a diagnosis of brain death), the way would be legally cleared for them to do so.

What has happened in the end, after several court interventions, is that Jahi has been removed from that hospital to an undisclosed location, probably in New York, that is evidently more open to the family's ideas. In particular, apparently Jahi has been receiving hydration (presumably via IV) but not any serious nutrition via feeding tube. There is also evidently no permanent opening for the ventilator. Both of these emplacements are, one assumes, going to take place at the new, undisclosed facility.

Is Jahi alive? I hate to disappoint my readers, but I simply don't know. I am not committed to either side on this empirical matter. On the one hand, it still seems to me possible that there is a genuine condition in which all parts of the brain really do cease to function while the rest of the body is temporarily sustained by ventilator support. On the other hand, my confidence in that proposition has been seriously eroded over the past few years by revelations like those mentioned above concerning temperature regulation, growth, and pain responses. Moreover, the lawyer for Jahi's family claims (without giving details of the evidence) that Jahi's body is regulating its temperature. If true, this is evidence of hypothalamic function. And I'm sorry, but it's simply verbal legerdemain to claim that a person's entire brain has ceased functioning when recognized sub-organs of the brain are continuing to function! Even construing matters in a narrowly legal fashion, by the plain meaning of the Universal Declaration of Death Act, if Jahi's hypothalamus is still functioning, she hasn't suffered whole brain death.

Her family claims that she is showing signs of responsiveness. They are, obviously, not the most objective judges of that conclusion, but it is some evidence nonetheless. If she's really responsive, she's not dead.

Let me make something else clear: This cannot and will not go on indefinitely. It is not true that a dead body can be sustained forever by a ventilator. Eventually, usually fairly rapidly, the heart stops functioning and cardiac arrest occurs, despite full ventilator life support.

My own opinion is that the longer it takes for that to happen, the more questionable was the original diagnosis. My empirical faith in zombies that live for years with literally zero brain function, including zero brain-stem function, etc., is at an extremely low ebb.

However, the fact is that we may never know whether the original brain death diagnosis was correct or not, even assuming that it is meaningful for such a diagnosis to be correct. If Jahi simply goes into cardiac arrest, her family will presumably acknowledge that she is dead then, and the question of whether she was dead back in December in California will become ethically moot. (Though not legally moot, I suppose. Consider the fact that the coroner in California already wrote a death certificate. One can't help wondering what the legal establishment will do in New York if she subsequently has cardiac arrest and is buried there!)

The only epistemically decisive thing that could happen now would be significant recovery, e.g., to the point that ventilator support was no longer necessary or to the point that neutral third parties acknowledge apparently conscious responses. If either of those were to occur, the entire brain death establishment should be thrown into a cocked hat, because every effort has been made to insure that Jahi does meet a set of rigorous, external criteria for diagnosing brain death. I actually believe that the hospital has attempted to cover all the bases there, if only in order to cover itself legally. There has even been a court-ordered independent review of the diagnosis. (One of the most tragic things about this case is that Jahi was in for fairly minor surgery to have her tonsils removed. The surgery went disastrously wrong, resulting in brain damage. One can't help thinking that there must be fodder for a malpractice suit on those grounds alone.)

Most of all, I cannot say how important it is that organ transplant was not in the picture here. One of the small ironies of this case arose when the hospital refused to perform minor surgery for the emplacement of permanent breathing and feeding tubes, on the grounds that the hospital "does not believe that performing surgical procedures on the body of a deceased person is an appropriate medical practice." Sounds reasonable, right? But consider: Had Jahi been an organ donor, they would have done precisely that--performed surgery for the removal of the organs. They might even have used anesthesia so as not to upset the transplant team. It's because organ harvesting is a surgical procedure that we have the evidence mentioned above about pain responses in allegedly brain-dead patients.

I hope that Jahi's family is willing to tell us the rest of the story, though I understand that for now they are keeping her location a secret for reasons of privacy.

My position is that, until and unless the grave issues concerning brain death can be cleared up, vital organ transplant should not be going forward. It remains to be seen whether Jahi's case will give us any new information about how reliable diagnoses of brain death really are. Meanwhile, it's rather heartening to see a small victory against the bureaucracy. And we should pray for Jahi and her family in the days to come.

Comments (9)

"The hospital's idea was that, with a declaration of death (now obtained from a coroner after a diagnosis of brain death), the way would be legally cleared for them to do so."

Hospitals are not parents and, all things being equal, if the parents do not accept the declaration of death, then the hospital should simply walk away. They are sticking their nose in in a way that smacks of patronization.

We should pray for a complete recovery, if it be God's will. On the other hand, will they listen even if she comes back from the dead? This is a sign of the continued erosion of a Christian worldview leaving only expediency. Not all doctors feel this way, I am sure. Legal hamstringing and poor ethical education have to be thrown in the mix, as well.

The Chicken

We should pray for a complete recovery, if it be God's will. On the other hand, will they listen even if she comes back from the dead?

Chicken, that raises an interesting epistemological question: If she literally comes back from the dead because of a miraculous cure, then (a) she really was dead, and (b) the evidence "she is alive now" does not support the thesis "she was alive then". On the supposition that someone in the family is praying for a miraculous cure, or even just a generic cure miraculous or not, how are we to know whether her recovery was an instance of coming back from the dead or an instance of not being dead in the first place? Possibly, her recovery may not be proof positive of either conclusion. (Although if she regains mental function and reports visiting with the big Cahuna in the sky, who told her to come back to Earth, I will accept that as evidence of death and restoration.)

I would say, Tony, that if she recovers even somewhat now (e.g., to the point of being able to breathe on her own and therefore not fulfilling the criteria for brain death) that makes a good cumulative case with other factors that she was never dead at all. Here are the other factors:

a) other cases where people have recovered after being declared "brain dead" (it's implausible that God was miraculously resurrecting all these people),

b) information indicating that doctors are ignoring things like thermoregulation in deciding to diagnose brain death,

c) the claim that Jahi's body is now carrying on thermoregulation,

d) the family's claims (however little evidence they provide by themselves, given probable bias) that she is presently responding to them.


According to an article I just read, three different doctors declared Jahi brain dead:

While the move ends what had been a very public and tense fight with the hospital, it also brings new challenges: caring for a patient whom three doctors have said is legally dead because, unlike someone in a coma, there is no blood flow or electrical activity in either her cerebrum or the brain stem that controls breathing.

The bodies of brain dead patients kept on ventilators gradually deteriorate, eventually causing blood pressure to plummet and the heart to stop, said Dr. Paul Vespa, director of neurocritical care at the University of California, Los Angeles, who has no role in McMath's care. The process usually takes only days but can sometimes continue for months.

"The bodies are really in an artificial state. It requires a great deal of manipulation in order to keep the circulation going," Vespa said.

Dolan, the family's lawyer, said Jahi's condition suffered because the hospital refused to feed her once she was declared brain dead. The family plans to pursue a federal court lawsuit alleging that Children's Hospital violated their religious and privacy rights. A hearing in the case is scheduled for Tuesday.

"She's in very bad shape," he said. "You would be too, if you hadn't had nutrition in 26 days and were a sick little girl to begin with."

So presumably, consistent with what you said in the original post, we'll know within a couple of months (if not sooner) whether or not those three doctors were correct as the ventilator can't keep Jahi 'alive' (if she's brain dead) for much longer.

Yes, if cardiac arrest occurs quite soon, I will take that as additional evidence that the original diagnosis was accurate.

I will say that the "can sometimes continue for months" part is what I have doubts about. I just don't automatically accept statements that people _definitely did not_ have any brain activity whatsoever, including brain stem, hypothalamus, etc., yet were "kept going" for an extremely long time. Years, especially, arouse my deepest suspicions of the original diagnosis. Or cases where a mother's "body" gestates an unborn child to the point of birth.

I do think that the fact that this sort of thing cannot go on indefinitely is relevant morally. Before I researched these issues, I was under the vague impression that a ventilator is literally the kind of thing that can keep a dead body metabolizing forever--functional immortality. Now, what some people want to convey is that we _must_ discontinue ventilator support at some point, for otherwise we will be surrounded by dead bodies being kept going world without end. That that is not true is an important piece of information to be kept in mind. In fact, it sometimes raises the "what's the hurry?" question. If, for example, the difference is likely only to be one of days, then why be in such a rush?

I believe ventilator support here has already continued for approximately a month past the declaration of brain death, without the occurrence of cardiac arrest.

I would say, Tony, that if she recovers even somewhat now (e.g., to the point of being able to breathe on her own and therefore not fulfilling the criteria for brain death) that makes a good cumulative case with other factors that she was never dead at all. Here are the other factors:

Lydia, I agree completely. With all of these factors, a recovery now would strongly indicate that there had been no death, and that no "brain death" in the proper sense had occurred.

I was thinking more abstractly, of some generic case where brain death occurred, and death was verified by actual beginnings of decomposition, and then 24 hours later God intervenes and brings the person back to life. We don't want to be in a position of having to say "well, I guess complete cessation of brain activity (including brain stem) and heart function, and decomposition, are not evidence of death." Epistemologically, death has to be knowable and verifiable in the face of the possibility of miraculous intervention, or no miracle could be established.

It's fortunate, in a sense, that Lazarus died before the development of modern technology. :-)

In case you missed it, Wesley Smith had some characteristically wise thoughts about this case last Friday:


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