Implications of brain death as a criterion for legal death

Posted By Katarina Daniels – Mar. 16, 2014

Many of our readers and followers on Facebook have been captured by the case of a pregnant Texas woman kept on life support for two months, against her known wishes and those of her husband and parents It took two months for the hospital to finally take Marlise Munoz off life support, and only after a state district judge ordered the hospital to do so. According to the Texas Advance Directives Act, “A person may not withdraw or withhold life-sustaining treatment… from a pregnant patient”. At this point however, the treatment was not, from my understanding, “life-sustaining,” as Munoz had been declared brain dead. This in turn led me to question the definition of brain death, and its implications. Answers quickly followed in the form of this most recent article in the McGill Journal of Law and Health by Jacquelyn Shaw.Definition of brain death
There are two primary ways in which someone will be declared legally dead. The cardiopulmonary criterion holds that death occurs when a person’s heartbeat stops and they stop breathing. This was the primary form of legal death until 1968, when Canada, following an important legal health trend, introduced “brain death” as a legal definition of human death.

From 1968-2003, Canada followed a nearly worldwide trend of defining brain death as the moment where the entire brain, including the brain stem, permanently stops functioning (also known as the “whole-brain” version of brain death). In 2003, the Canadian Council for Donation and Transplantation adopted the brain stem criterion, which holds that total irreversible destruction of the brain stem confirm brain death. While this remains the definition of brain death in Canada today, Shaw notes that this Canadian standard is not followed uniformly across Canada. In addition, it has not yet been picked up by the United States, which still follows the “whole-brain” standard.

Implications of brain death as a criterion for legal death
There is still disagreement on the definitions of brain death and on the rationales for brain death as a criterion for legal death. However, in her article, Shaw finds that an approach focusing on mitochondrial viability “provides a better explanation for the biological process of death” than the brain death approach. According to Shaw, “the mitochondria, and not the brain, are more likely to play a master regulator role in the body,” supporting tissue functioning and providing fuel for all biological processes, including brain activity.[1] In addition, Shaw cites studies that show that mitochondria in the bodies of “heart-beating, brain-dead donors” are still viable, allowing bodily systems to continue functioning.[2]

As a result, Shaw suggests that a brain death approach may be unfair and misleading since the majority of the population equates brain death with death of the “organism as a whole,” which is biologically inaccurate. A major concern for the author is consent and the possibility that consent for organ donations or removal from life support may be vitiated by this inaccurate and somewhat distorted understanding of death.

The solution provided by Shaw is to accept brain death as a legal fiction that allows for a legal death. While this may be a more honest explanation, I am not sure I am comfortable with its potential effects. This is especially evident if one considers the Munoz case described above.

Marlise Munoz: A case study on brain death
Between November 26th, 2013, and January 26th, 2014, Marlise Munoz was kept on life support despite having been declared brain dead, because Texas law does not allow a hospital to withdraw life support from a pregnant woman.  Her surviving husband and parents wanted her taken off life support. Under the brain death justification for legal death, someone who is brain-dead is legally dead. By definition, someone who is dead cannot be on life-sustaining treatment – there is no “life” to sustain. Since Mrs. Munoz was dead, her family argued that the law could no longer apply. To the great relief of the Munoz family, a state district judge accepted this argument, and ordered the hospital to disconnect Mrs. Munoz’s life support.

Under Shaw’s arguably more biologically accurate definition, Marlise Munoz was on a path towards death: despite being brain dead, Mrs. Munoz’s mitochondrial activity continued to power her bodily systems. But who benefits from this “mitochondrial activity”? If Marlise Munoz is not going to wake up again and will not be the same woman that her family remembers, how does labelling brain death a legal fiction help anyone?

Certainly, adding a serious asterisk to the label of “brain death” would, at best, serve to stigmatize those who chose to take a loved one off life support. At worst, it would provide a strong reason for states to amend their definition of legal death (something which Shaw does not actually support, see: Shaw 298). Indeed, in the case of Marlise Munoz, admitting that brain death is a legal fiction would have only benefited anti-abortion activists who were trying to keep Mrs. Munoz alive against her known wishes and those of her family. If fiction, by definition, is something that is not true, then Marlise Munoz could not have been truly dead. The activists could thus argue that the Texas Advance Directives Act should have applied and the hospital should not have taken her off of life support.

How to define death is a debate that appears dangerous to open, and I wonder if the “business as usual” approach dismissed by Shaw (299) would not be more appropriate. Equating brain death with bodily death, although a biological fiction, allows families of brain-dead patients to make a brave and difficult decision knowing that their loved one is legally dead and not legally dead*. It allows them to make a decision without the fear of being judged by others for pulling the plug on someone whose legal status is a legal fiction.  It allows families to make dignified choices and allows their loved ones to die with dignity.


For other articles on this topic, please see:
Brain-dead Marlise Munoz taken off life support in Texas hospital 
Erin Anderssen, “The difficulty in defining death”


[1] Jacquelyn Shaw, “Of Mitochondria and Men: Why Brain Death is Not the Death of the Human ‘Organism as a Whole’” (2014) 7:2 McGill JL& Health 235 at 273.

[2] Ibid at 293.

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