Edgar Allan Poe, 1844; The Premature Burial
“The boundaries which divide Life from Death are at best shadowy and vague. Who shall say where the one ends, and where the other begins?”
The case of Jahi McMath
From The New Yorker, January 29, 2018 issue. “What Does It Mean To Die” Rachel Aviv
Before having her tonsils removed, Jahi McMath, a thirteen-year-old African-American girl from Oakland, California, asked her doctor, Frederick Rosen, about his credentials. “How many times have you done this surgery?” Hundreds of times, Rosen said…The operation, at Oakland’s Children’s Hospital, took four hours. When Jahi awoke, at around 7 p.m. on December 9, 2013, the nurses gave her a grape Popsicle to soothe her throat. About an hour later, Jahi began spitting up blood...At twelve-thirty in the morning, Sandra saw on Jahi’s monitor that her oxygen-saturation levels had fallen to seventy-nine per cent. She yelled to the medical staff, and several nurses and doctors ran toward Jahi and began working to intubate her...Two days later, Jahi was declared brain-dead. [Children’s Hospital issued a death certificate with a date of death as Dec 12, 2013] With the help of a ventilator, she was breathing, but her pupils did not react to light, she did not have a gag reflex, and her eyes remained still when ice water was dripped in each ear. She was briefly disconnected from the ventilator, as a test, but her lungs filled with carbon dioxide. On an EEG test, no brain-wave activity could be seen.
Over the next few days, a social worker repeatedly urged Jahi’s family to make a plan for taking her off the ventilator. She also recommended that they consider donating her organs. “We were, like, ‘Nah,’ ” Marvin said. “ ‘First, tell us what happened to her.’ ” The family asked for Jahi’s medical records, but they weren’t allowed to see them while she was still in the hospital. Nailah didn’t understand how Jahi could be dead when her skin was still warm and soft and she occasionally moved her arms, ankles, and hips. The doctors said that the movement was only a spinal reflex, described in the medical literature as “a Lazarus sign.”
Nailah was terrified of the noise her daughter’s portable respirator was making, which seemed as loud as the jet’s engine. It wasn’t until they landed that she learned they were in New Jersey, one of only two states—New York is the other—where families can reject the concept of brain death if it violates their religious beliefs. The laws in both states were written to accommodate Orthodox Jews, some of whom believe, citing the Talmud, that the presence of breath signifies life.
"There would have been no legal battle if Jahi had had her tonsils out in New Jersey” [Christopher Dolan, family lawyer to Jahi McMath].
Update:
Dolan issued a statement in June 2018 that McMath had died. She was having internal bleeding due to kidney and liver failure, so her doctors removed her from life support, allowing her to die. Dolan stated that he intends to continue his pro-bono case to have McMath's California death certificate revoked and her date of death established as June 22, 2018.
“Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death” Henry Beecher, et al. (1968) Irreversible coma standard
Our primary purpose is to define irreversible coma as a new criterion for death. There are two reasons why there is a need for a definition: (1) Improvements in resuscitative and supportive measures have led to increased efforts to save those who are desperately injured. Sometimes these efforts have only partial success so that the result is an individual whose heart continues to beat but whose brain is irreversibly damaged. The burden is great on patients who suffer permanent loss of intellect, on their families, on the hospitals, and on those in need of hospital beds already occupied by these comatose patients. (2) Obsolete criteria for the definition of death can lead to controversy in obtaining organs for transplantation.
Shemie et al. The International Guidelines for Determination of Death, in collaboration with the World Health Organization (2014)
“For the purposes of this forum [Harvard brain death committee proceedings], death was fundamentally considered a biological event…legal, ethical, cultural and religious perspectives on death were not included.”
Uniform Declaration of Death Act (UDDA) (1981) The “total brain” standard
“Many states developed criteria in a patchwork and inconsistent fashion, making it possible to be legally alive in one state and legally declared dead in another,” the new report states. “To resolve this confusion, in 1981 the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research was formed to develop model language, reflecting medical standards, for state law.”
The UDDA states that an individual who has sustained either:
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an irreversible cessation of circulatory and respiratory functions, or
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an irreversible cessation of all functions of the entire brain, including the brain
Oliver Wendell Holmes Jr., 1931 Higher brain standard
“To live is to function. That is all there is in living.”
President’s Council on Bioethics, 2008 Higher brain standard
Indeed, in 2008 the President's Council on Bioethics went so far as to advocate for a ‘total brain failure/standard as opposed to the total brain death standard, in part for measurement reasons. However, given the current medical technology available, it seems that neurological criteria represent the most pragmatic set of standards for what constitutes death. As James Bernat has argued, neurological criteria currently represent optimum policy as they encompass ‘the critical functions of the organism as a whole’
Rav Eliezer Yehuda Waldenberg
First and foremost, based on the words of רש''י, he rules that as long as the heart beats, a person is alive. He explains that the debate in the Talmud is only a matter of whether the failure to detect beating of the heart is sufficient to declare a person dead, but all agree that a beating heart is a sign of life. Accordingly, Rav Waldenberg rejects ―brain death as it is possible for the brain to die before the heart. He is not troubled by the possibility that by following the conclusion of the Talmud to check the nose for respiration a patient whose heart still beats might be declared dead, as prior to the advent of the ventilator the beating of the heart and the cessation of respiration were essentially simultaneous.
Rabbi Ahron Soloveichik, “Death According to the Halacha,” The Journal of Halacha and Contemporary Society (Spring, 1989): 41–48.
The process of death begins with cessation of respiration and it ends with the total termination of all the three vital functions in life—respiration, cardiac activity, and brain activity … A person who becomes devoid of respiration but who still has cardiac activity is considered semi-alive and semi-dead. Consequently, if someone will kill him, he will be considered a murderer. Hence, it is absolutely forbidden (יהרג ואל יעבור) to cut out the heart of that person even though the removal of the heart of the donor is indispensable to the preservation of the life of the donee.
Contemporary Criteria for the Declaration of Death by Rabbi Daniel S. Nevins
We have concluded that these cases are distinguished by the inability of the victim to breathe. Because the protocol for ascertaining brain-death currently includes verification of the complete cessation of respiration, it suffices to prove halakhic death.
This understanding differs from that advanced by previous advocates of accepting brain-death such as Rosner, Tendler and Reisner, who view the neurological injury suffered to the brain stem as halakhically significant in and of itself. Our position focuses on the inability to breathe caused by brain-death as the halakhically-significant criterion.
A diagnosis of brain-death, according to its rigorous protocol, is required for halakhic purposes only when contemplating an action such as the harvesting of vital organs. It may be possible one day to transplant the hearts and livers of non-heart beating donors, thereby avoiding this ambiguous situation. Meanwhile, the brain-death protocol with its test of apnea satisfies the traditional definition of death established in b. Yoma 85a and the codes that follow it.
We must remain clear that the stringent criteria proposed by Wijdicks and Plum et al. to rule out any temporary or reversible factors, followed by careful clinical examination, are prerequisites to the diagnosis of death according to halakhah. The brain-reflex clinical examination should indicate whether the components of the brain stem—mid-brain, cerebellum, pons and medulla oblongonta—have indeed ceased to function. These examinations are also preliminary to the halakhic diagnosis of death. They satisfy Rashi’s explanation of b. Yoma 85a, that the patient is utterly unresponsive. These tests also can prevent medical staff from performing an apnea test which could be dangerous for a patient who does retain brain function, and whose death could be hastened by a premature apnea test.
What about the continued heartbeat? It seems counterintuitive to dismiss this rhythmic function as פרכוס, which is generally spasmodic movement after death. Yet the heart is a muscle which can continue to beat even outside of the body (as it often does during heart-transplant operations). We do not consider a heart transplant recipient to have died and been reborn. Asystole alone does not define death, and continued heartbeat may indeed qualify as פרכוס.
Heartbeat alone does not constitute a נפש חיה, a living person, either in the womb or in the ICU. The brief persistence of cardiac activity in cases where there is no consciousness, no movement in response to any neurological examination, nor any spontaneous respiration as demonstrated by the apnea test, is consistent with a declaration of death in halakhah. The cardiac standard has clearly been rejected by the Gemara and codes in cases where the person is found to be דומה למת, “like dead.”
The apnea test confirms that the brain stem has ceased to function and also meets the traditional respiratory criterion of death. This is the halakhically-significant and final determination of death. Indeed, a patient who fails to breathe during the apnea test, showing no signs of spontaneous respiration after all the preliminary confounding factors and brain reflex exams have been accounted for, is dead by both classical Jewish and contemporary medical criteria. The moment that this test is completed can serve as the official moment of death according to halakhah.
Jewish Treasures from Oxford Libraries Edited by Rebecca Abrams and Cesar Merchan-Haman Review by Stu Halpern
Even Jews who joyously celebrate Passover each year might be hesitant to observe the holiday twice in one year. And yet, in 1117 CE, Rayyisa, the daughter of Saadya, married Yahya, the son of Abraham, in a mixed marriage. By that I mean one was a rabbinic Jew and one a Karaite. In their ketubah (marriage document) it was stipulated that they would not “profane each other’s holidays,” despite Karaites and rabbinic Jews in some years observing Passover a month apart due to their disparate calendars.