San Diego Estate Planning Lawyer Blog
The recent case of Jahi McMath has renewed the media and ethical debate over the question of when an individual can truly be declared deceased. McMath was a 13-year-old girl declared legally brain dead on December 12th, 2013, in Alameda County. The family contested this diagnosis, claiming she still had heart and lung function. Although an Alameda County judge confirmed the hospital’s determination that McMath was dead, the family filed a federal lawsuit, arguing this violated their religious beliefs, as protected by the First Amendment, which hold that McMath is still alive.
Defining “Legally Dead”
A majority of U.S. states, including California, have adopted the Uniform Determination of Death Act, a model law developed at the behest of the White House and the medical community in the early 1980s. California incorporated the uniform act into its Health and Safety Code. The Act defines death as either “(1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem.”
In McMath’s case, three independent neurologists certified she fell within the second category-brain death. The family said they would only accept evidence of the former-lack of heart and lung function-as proof of death. In some jurisdictions that might be a valid proposition. New Jersey, for example, differs from the uniform act by allowing an “individual’s personal religious beliefs” to preclude a legal declaration of brain death.
But as the hospital that treated McMath noted in its own court filings, there is no precedent under California law to stray from the principle that brain death is death. The hospital said it was vigorously opposed to performing additional surgery on McMath that would allow her to be moved to another facility. From the hospital’s standpoint, that would constitute operating on a cadaver, which violates the generally accepted principles of medical ethics.
The Role of an Advance Health Care Directive
You might wonder why the family’s wishes for their daughter’s care are not automatically considered paramount. Doesn’t a parent have the right to make health care decisions for his or her child? The answer is that such authority only exists while the child is legally considered alive. Once a person is dead, the family need not be legally consulted under California law.
The same would be true of an adult. While a good California estate plan includes an Advance Health Care Directive, such a directive ceases to have legal force upon a person’s death. A Health Care Directive authorizes an agent to “make health care decisions for you if you are unable to make your own decisions.” This presupposes you are legally alive.
It’s important to understand that a person in a coma or a “persistent vegetative state” is not the same thing as brain dead. A person with brain activity continues to live under the law, and in such cases, an Advance Health Care Directive provides essential guidance to family members and physicians as to the person’s wishes. Even after death, an Advance Health Care Directive can instruct medical staff as to your wishes regarding the donation or other disposition of your organs.