|Jahi McMath's funeral, July 6, 2018|
Four and a half years earlier, on December 12, 2013, the state of California declared Jahi dead. Against the objections of her mother and father--and against a court order--California issued a legally binding death certificate. It forbade, under penalty of law, anybody in the state of California to treat Jahi as a living person. It was the ultimate discrimination.
With the stroke of a pen, she was an outlaw in the purest sense of the word. The death certificate meant that she was outside the protection of any laws. Doctors who saw hope were forbidden from helping her. Law enforcement officers who saw her rights being violated were forbidden to protect and serve. Even her parents who are, by nature, her inalienable guardians were stripped of parental rights.
|Benioff Children's Hospital|
The story began on a Monday when Jahi entered Benioff Children’s Hospital to have her tonsils and adenoids removed. The surgery itself seemed successful. But in the recovery room she began to bleed profusely.
Bleeding after such a surgery is normal, but not this much. After two hours she had filled up two plastic bins with blood. Her mother, a professional nurse, kept asking for the doctor, but he wouldn’t come for another two and a half hours.
By then, Jahi’s massive loss of blood caused a cascade of injuries. Her blood pressure dropped until her heart stopped. Then, deprived of oxygen, her brain was severely damaged.
Why was she not given a transfusion or plasma? Why didn’t the doctor come? These and many other questions will be addressed at trial. Oddly, in spite of the death certificate issued over four years ago, her parents could not file a wrongful death suit. That’s because she wasn’t actually dead.
If doctors were not interested in Jahi during the critical hours following the surgery, they were certainly interested after her brain was damaged. Here was a young girl with a body full of perfectly healthy organs. The possibilities for transplant were rich.
The problem is that if they wait for her heart to stop, many of these organs will be damaged and become unusable. It was to solve this “problem” that a new ethical idea was introduce 50 years ago. Why not simply change the definition of death?
In 1965 the American College of Gynecology (ACOG) changed the definition of the beginning of life from the moment of fertilization to the moment of implantation. This was not a scientific change, but an ethical/religious one. It helped to skirt the ethical problems posed by IUDs and other contraceptives that stopped the implantation of an embryo that had already been alive for several days.
If ACOG can do something as drastic as that, why not change the definition of death as well? Death had always been defined as the cessation of vital functions. In 1968, a report titled, “A Definition of Irreversible Coma” floated the concept of “brain death.” It proposed the idea that one organ of the body (the brain) could actually die before the rest of the body.
States began altering their laws to suit this nebulous idea. Advocates convinced us that “brain death” is irreversible and inevitably leads to total death. One major difficulty, however, is that neuroscience is not exact enough that all can agree on when it occurs.
Before the notion of “brain death,” death could be determined objectively by anyone. But “brain death” laws, like the one in California, depend not on public facts but on expert opinions. Doctors become like high priests who emerge from secret consultations with an opinion from God.
The problem is that doctors can and do come to different opinions. So, California requires two doctors to agree to a “brain death” before it is legal. But, in a state with around 80,000 doctors, that’s a pretty low standard. Even a world-renowned doctor of neuroscience has no legal standing to reverse what any two doctors have decreed.
That’s what happened to Jahi. Two doctors at Benioff Hospital declared that she was “brain dead.” Her mother, a professional nurse, had access to all the same information as the two doctors and was convinced that they were wrong. But her medical training gave her no legal standing. Neither could multiple brain experts overturn the judgment.
Four and a half years later she was proved right. Jahi died not because her “dead brain” killed the rest of her, but due to complications from another surgery. Still, California is fighting to uphold their legal fiction. After Jahi lived, grew, developed, healed and communicated with others, California still refuses to acknowledge the death certificate issued by the state of New Jersey.
Here are some important facts about the case.
First, from the start “brain death” has been about organ harvesting. In this case, the California doctors might simply have taken Jahi off the respirator. If they had, she would likely have died in 2013. They kept the respirator going not for Jahi’s sake, but to preserve her organs for transplant. This is ethically troubling and contrary to the Hippocratic Oath.
Doctors swear to “do no harm.” If they truly believed it was harmful to Jahi to have her on the respirator, they should have removed it immediately. As it is, the hospital only sued to turn off the respirator after her parents refused permission to cannibalize her organs.
Second, the notion that a person can be artificially kept alive indefinitely is a lie. This has never happened--not even once. For starters, there is no machine known to man that can keep a person’s heart beating. A person’s heart either beats or doesn’t beat according to unknown factors in the person’s own psyche. Jahi’s heart kept beating despite traumatic brain injury. It stopped beating after her mother talked to her and told her that it was okay if she wanted to go to God.
Third, intubation (sometimes called artificial respiration) can only buy time for the body either to heal or to die by brain asphyxiation. Never in the history of medicine has artificial respiration prevented a person from dying who was, indeed, dying. In Jahi’s case, it gave her body time to heal and grow.
She healed from the original surgery. She matured through puberty from a girl into a young woman. Her brain healed enough that voluntary movement and communication became possible.
Fourth, the brain is the only organ in the body that continues to renew itself until the moment of death. If it had died on December 12, 2013, it could not have restored lost functions. But it did. On October 3, 2014, Dr. Alan Shewmon, a professor of neurology at UCLA and world-renowned expert on the brain, testified under oath of the overwhelming evidence that she had gained consciousness and the ability to respond to stimuli and verbal commands.
Whether this is a crass move to save money for the survivors, or to save organs for transplant, it is an infringement on human rights and an affront to God. It’s high time that Wyoming join with all states in reconsidering the rash move to adopt a different standard of death.
Jahi’s death, her one and only death, has given us all a chance to think more clearly. May she rest in peace.