HealthLawProf Blog

Editor: Katharine Van Tassel
Akron Univ. School of Law

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Sunday, January 5, 2014

Defining Death: Jahi McMath and Respect for Different Viewpoints

While the law has recognized for decades that death occurs when a person’s brain no longer functions, the case of Jahi McMath reminds us that people continue to disagree about the timing of death. For many people, death occurs only when a person’s heart has permanently stopped beating.

In almost all states, the absence of brain function signifies death, even if the person’s heartbeat can be maintained by medical care. New Jersey, however, permits people to reject “brain death” on the basis of their religious beliefs and insist that death be declared only upon the loss of all cardiac function.

New Jersey has it right. When people hold different and legitimate views about life and death, we should accommodate their views as much as possible. Indeed, we do so to a considerable extent at the beginning of life. In some sense, we let women decide about the legal status of their fetus, as long as they choose a point between conception and viability. For women who do not view embryos as persons, the law permits abortion until viability. And for women who view their offspring as people at the moment of conception, the law provides protection from harm to their fetuses by other people.

There are costs when people are provided intensive care after they meet brain criteria for death, but there also are costs when we don't tolerate sincerely held, minority viewpoints in society. It's often better to err on the side of toleration, especially as with cases like Ms. McMath’s, the costs of toleration are a trivial amount of what we spend on health care overall.

[cross-posted at orentlicher.tumblr.com]

http://lawprofessors.typepad.com/healthlawprof_blog/2014/01/defining-death-jahi-mcmath-and-respect-for-different-viewpoints.html

End-of-Life Care, Health Care Costs | Permalink

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