Brain Death: The Historic Guidelines


Brain Death As Defined by the Law

The federal constitutional right to practice religion and the right to self-determination to die in a way commensurate with that religion is often prohibited through the practice of medicine and by the Uniform Determination of Death Act (UDDA).

Many times the UDDA is based, or rather strictly justified, on the “futile care” dollar cost of sustaining life. This state law is sometimes misinterpreted under the belief that it is permissible to remove a patient from a ventilator when they are in irreversible deep coma and therefore alive, yet legally dead under the presumption that you cannot kill someone who is unable to breathe on their own. The New Jersey Supreme Court’s 1976 decision in the Karen Ann Quinlan case found the withdrawal of life support to be the then-established ethical norm.

The term “brain death,” which is one form of legal death under the law, justifies organ transplantation based on the measure of what is called irreversible deep coma, although some now want the term changed to read “permanent deep coma.”

This definition measures quality of life from good to poor based on a point system and is a utilitarian ethics-based legal definition to a place of non-personhood, which allows for the recycling and taking of another’s personal bodily organs.  Brain death is said to be essentially “dead,” or “as good as dead” under the law, while the body itself remains in a functioning state, according to the Harvard criteria of death.

Thus, the “essentially dead,” “alive but dead,” “as good as dead,” “brain dead” person can be sometimes treated both ethically and legally dead under the determination of death act without meeting the intent and interpretation of the letter of the law because the brain dead person is said to be imminently dead, even with some brain stem function as the patient  cannot stay alive at that moment in time without unassisted respiration which may allow them to regain additional brain stem function. . The determination of whether the patient is alive or dead is then based on whether or not they need a ventilator or supportive machine designed to help them breathe, and  how the patient’s doctor views brain death.

Under our form of government, each citizen is guaranteed an inalienable right to life, liberty and the pursuit of happiness, as stated in the Declaration of Independence. We each also have the right to practice our own personal religious beliefs, as stated in the U.S. Constitution.

As every federal elected official congressman and senator learns, After the Act of 1871 , the United States is now run like a corporation and a citizen’s constitutional rights are often abridged.

There will always be a push to control expenses and keep healthcare costs down, as well as the possible infringement of a citizen’s fundamental rights.

The Case of Jahi McMath

Under the legal right to self-determination provided by our founding documents, the case of a patient with pro-life religious values and practices of “natural death” (as determined when the heart stops beating on its own) whose rights were violated is illustrated by the Jahi McMath 2013 brain death case in California. McMath’s rights should have been honored, just as assuredly as the person who chooses to activate a Do Not Resuscitate (DNR) form, or carries a donor card.

According to the UDDA and the 2010 American Academy of Neurology Brain Death Guidelines, the time of death is recorded as the time that the brain death diagnoses is confirmed by a second doctor.  The McMath brain death case was the first time that a coroner (in Alameda County, California) ever issued a death certificate for a person with a beating heart.  In fact, the coroner’s office would not take procession of the body because her heart was still beating, nor would they perform an autopsy on a person with a beating heart even though she was declared legally dead under the law.

The Practice of Partial Death

Justification in taking organs early, while you are still alive, is made on a measurement of quality of life. This is where doctors commonly practice the “presumption” of imminent death or dead enough to do no harm even though the patient has brain stem function under the law and confuse medically futile care with medical comfort care by use of a ventilator.  It is presumed that the patient’s condition on a respirator will be futile and thus presumed to be a case of irreversible cessation so that early organ removal and recycling can take place.

The UDDA states that death is the irreversible cessation of circulatory and respiratory functions or, the irreversible cessation of all functions of the entire brain, including the brain stem.

Death, then, under the law, cannot be both ways in order to take organs. The coroner will require complete cessation of both respiratory and brain functions in order to take a body to the morgue.

This brings into question the difficult end-of-life issues and ethics of the true diagnoses of brain death and the quality of expected medical care—which is guaranteed under the current health care system in America.

There must be authentic “full and truthful disclosure” of the condition and all options and for “fully informed” consent, without undue medical and financial pressure—which may violate the patients religious rights, and that of  the patient’s  family—to pull the plug and terminate life. Response to a brain death diagnoses requires integrity, careful thought and deliberation to make informed decisions.

The original Harvard research refers to severe brain injuries as a state of being alive, but in a condition in which you would not want to live.  One might ask a person living with impairment or severe disabilities, if they think life is worth living.  Or is the quality of life so bad that you wouldn’t want to live that way?  My guess is they would choose life.

The Difference Between Brain Death and a Vegetative State: When Does Natural Death Occur?

When a person sustains serious injury to the brain, he or she may lose consciousness.  The patient may remain in a coma  or a persistent vegetative state for an indefinite period of time and, in some cases, for the rest of his or her life.  Still, a patient in a coma or in a persistent vegetative state could retain some degree of consciousness and could eventually recover, waking up and regaining some or all normal cognitive function.

In a new trial study of 55 brain damaged patients at the University Hospital in Liege, Belgium research shows that minimally comatose conscious patients responded to electrical stimulation, awakening for short periods of time. A patient who is brain dead (a definition developed by Harvard doctors during the 1960s to be able to harvest human organs for transplantation) is said to be essentially dead under the law while the body itself remains in a functioning state.

This raises the question: When does true natural death occur?  Historically, natural death was determined when the heart stopped beating.

Under the “presumption” of imminent death or dead enough to do no harm, determination of brain death, it is said, the heart may continue to beat and the patient’s body may be kept alive through the use of ventilators, IV fluids and tube feedings, but the individual’s brain is said to be, according to the law, 100 percent dead, even if his or her body remains functional as a result of assistance from machines which sustain brain stem function. This interpretation is a misconception because it does not meet the letter of the law requiring “irreversible cessation of all functions of the entire brain including the brain stem.”   Brain stem functions include maintaining normal body temperature and blood pressure, neurogenic control of the heart rate, and hypothalamic-pituitary axis-controlled hormone production.

So, how long can a brain dead person live?

See this article in the New England Journal of Medicine for more information.

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