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Journal of Bioethical Inquiry
Published in: Journal of Bioethical Inquiry 1/2016

01-03-2016 | Original Research

The Case for Reasonable Accommodation of Conscientious Objections to Declarations of Brain Death

Author: L. Syd M. Johnson

Published in: Journal of Bioethical Inquiry | Issue 1/2016

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Abstract

Since its inception in 1968, the concept of whole-brain death has been contentious, and four decades on, controversy concerning the validity and coherence of whole-brain death continues unabated. Although whole-brain death is legally recognized and medically entrenched in the United States and elsewhere, there is reasonable disagreement among physicians, philosophers, and the public concerning whether brain death is really equivalent to death as it has been traditionally understood. A handful of states have acknowledged this plurality of viewpoints and enacted “conscience clauses” that require “reasonable accommodation” of religious and moral objections to the determination of death by neurological criteria. This paper argues for the universal adoption of “reasonable accommodation” policies using the New Jersey statute as a model, in light of both the ongoing controversy and the recent case of Jahi McMath, a child whose family raised religious objections to a declaration of brain death. Public policies that accommodate reasonable, divergent viewpoints concerning death provide a practical and compassionate way to resolve those conflicts that are the most urgent, painful, and difficult to reconcile.
Footnotes
1
The international picture is more diverse. Most European countries have adopted a whole-brain death standard for declaring death, although the United Kingdom has a brainstem standard. Numerous countries have no laws defining the criteria for death or do not legally recognize neurological criteria. In some Asian countries, such as Japan and Singapore, the concept of brain death remains highly controversial.
 
2
The Buddhist understanding of death is that it occurs when the body is bereft of three things: vitality, heat, and consciousness. There is some controversy over how these traditional indicators track with modern medical concepts, but many Buddhists, especially Japanese Buddhists, reject the criterion of brain death (Keown 2005). Many religions, including Buddhism, Confucianism, and Hinduism, are without centralized authorities or leaders to pronounce doctrine, making diverse interpretations possible. Several Islamic countries have accepted whole-brain death or brainstem death, but there is no international consensus on how brain death must be interpreted under Islamic law, and some Muslim juridical bodies reject brain death altogether (Padela, Arozullah, and Moosa 2013).
 
3
It is certainly contentious to refer to “life support” for a brain dead individual or to call that individual “alive,” but such references will be made throughout this paper, to acknowledge that the medical and moral status of these patients is in dispute. It would be question-begging to simply call them “dead” and deny that they are receiving life support. “Physiological support” is an available alternative term, one that perhaps captures the dualistic proposition that the bodies of these patients are alive, but not their minds. However, “life support” is the more common terminology, used extensively, for example, in the President’s Council white paper (President’s Council 2008).
 
4
In a 2014 case in Texas, a pregnant woman, Marlise Muñoz, was declared brain dead, but kept on life support to preserve the life of her unborn fetus. Her family objected, citing her wishes not to be kept alive in such a condition. The hospital in the case cited a Texas law that prohibits the withdrawal of life support from pregnant women. The family sued; a district court sided with the family and ordered the withdrawal of life support, noting that the law did not apply to the deceased, but only to living pregnant women (see Erick Muñoz v. John Peter Smith Hospital).
 
5
While isolated functions do not add up to a brain that functions as an integrated whole or one capable of sustaining consciousness, their presence might preclude a determination of “irreversible loss of all functions of the entire brain,” which is the language used in the UDDA. Importantly, if areas of the brain continue to function, even as isolated islands, that would plausibly imply a brain that is not biologically dead.
 
6
Illinois has a limited accommodation law that requires hospitals to “take into account the patient’s religious beliefs” when documenting time of death (210 ILCS 85/6.23). Like New Jersey’s law, the Illinois statute exclusively privileges religious beliefs.
 
7
While brain dead organ donors are routinely maintained on life support to preserve the viability of organs, they are never transferred to the coroner in that condition. Organ procurement necessarily and unquestionably leads to death by both neurological and circulatory-respiratory criteria.
 
8
There are others, including the “brain stem death” standard used in the United Kingdom and Commonwealth (National Health Service 2012) and the “loss of consciousness” standard (Machado 2007).
 
9
The salient question is: “Close enough for what?” Even if we considered someone in higher-brain death to be dead, or mostly dead, or as good as dead, or lacking personhood, it seems unlikely that we’d bury or cremate a body with a beating heart. There is some sympathy, however, for using these unfortunates as organ donors, and some commentators (cf. Truog 2007) have proposed that the dead donor rule be abandoned to allow organ donation by those who are only mostly dead. There would appear to be some public sympathy for such a move (see Siminoff, Burant, and Youngner 2004).
 
10
There is an interesting and lively debate concerning the timing of death by the circulatory/respiratory standard, particularly in the context of donation after cardiac death (DCD). In DCD organ donors, death by irreversible cessation of circulatory-respiratory function is declared shortly after the heart stops—when it might still be possible to resuscitate the donor—in order to preserve the viability of organs for transplant. What is not controversial is that a body lacking circulation and respiration will be dead after some relatively short but imprecise interval, unlike brain dead bodies.
 
Literature
Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death. 1968. A definition of irreversible coma. The Journal of the American Medical Association 205(6): 337–340.CrossRef
Bernat, J.L. 1998. A defense of the whole-brain concept of death. The Hastings Center Report 28(2): 14–23.CrossRefPubMed
Bernat, J.L. 2005. The concept and practice of brain death. In The boundaries of consciousness: Neurobiology and neuropathology, edited by S. Laureys, 369–379. Amsterdam: Elsevier.CrossRef
Capron, H.M. 2001. Brain death: Well settled yet still unresolved. The New England Journal of Medicine 344(16): 1244–1246.CrossRefPubMed
Engelhardt, H.T. 1986. The foundations of bioethics. New York: Oxford University Press.
Halevy, A., and B. Brody. 1993. Brain death: Reconciling definitions, criteria, and tests. Annals of Internal Medicine 119(6): 519–525.CrossRefPubMed
Johnson, L.S.M. 2014. A legal fiction with real consequences. American Journal of Bioethics 14(8): 34–36.CrossRefPubMed
Keown, D. 2005. End of life: The Buddhist view. The Lancet 366(9489): 952–955.CrossRef
Machado, C. 2007. Brain death: A reappraisal. New York: Springer.
Miller, F.G., and R.D. Truog. 2009. The incoherence of determining death by neurological criteria: A commentary on Controversies in the determination of death, a white paper by the President’s Council on Bioethics. Kennedy Institute of Ethics Journal 19(2): 185–193.CrossRefPubMed
Onishi, N. 2014. A brain is dead, a heart beats on. The New York Times, January 4, A10.
Padela, A.I., A. Arozullah, and E. Moosa. 2013. Brain death in Islamic ethico-legal deliberation: Challenges for applied Islamic bioethics. Bioethics 27(3): 132–139.CrossRefPubMed
President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. 1981. Defining death: Medical, legal and ethical issues in the determination of death. Washington, DC: U.S. Government Printing Office.
Schuchman, A.D. 1998. The holy and the handicapped: An examination of the different applications of the reasonable-accommodation clauses in Title VII and the ADA. Indiana Law Journal 73(2): 745–764.
Shah, S.K., and F.G. Miller. 2010. Can we handle the truth? Legal fictions in the determination of death. American Journal of Law & Medicine 36(4): 540–585.
Shewmon, D.A. 1998. Chronic “brain death”: Meta-analysis and conceptual consequences. Neurology 51(6): 1538–1545.CrossRefPubMed
Shewmon, D.A. 2001. The brain and somatic integration: Insights into the standard biological rationale for equating “brain death” with death. Journal of Medicine and Philosophy 26(5): 457–478.CrossRefPubMed
Sibley, W.M. 1953. The rational versus the reasonable. The Philosophical Review 62(4): 554–560.CrossRef
Siminoff, L.A., C. Burant, and S.J. Youngner. 2004. Death and organ procurement: Public beliefs and attitudes. Social Science & Medicine 59(11): 2325–2334.CrossRef
Truog, R.D. 2007. Brain death—too flawed to endure, too ingrained to abandon. Journal of Law, Medicine & Ethics 35(2): 273–281.CrossRef
Veatch, R.M. 2005. The death of whole-brain death: The plague of the disaggregators, somaticists, and mentalists. Journal of Medicine and Philosophy 30(4): 353–378.CrossRefPubMed
Wijdicks, E.F.M. 2002. Brain death worldwide: Accepted fact but no global consensus in diagnostic criteria. Neurology 58(1): 20–25.CrossRefPubMed
Metadata
Title
The Case for Reasonable Accommodation of Conscientious Objections to Declarations of Brain Death
Author
L. Syd M. Johnson
Publication date
01-03-2016
Publisher
Springer Netherlands
Published in
Journal of Bioethical Inquiry / Issue 1/2016
Print ISSN: 1176-7529
Electronic ISSN: 1872-4353
DOI
https://doi.org/10.1007/s11673-015-9683-z

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