Two recent controversies over “brain-dead” patients have obviously flustered some medical ethicists. Writing in a commentary in the New England Journal of Medicine, David C. Magnus, Benjamin S. Wilfond, and Art Caplan insist that the definition of death as brain death must be maintained.

In Fort Worth, Texas, the relatives of 33-year-old Marlise Muñoz, a woman who was 14 weeks pregnant, wanted her to be taken off life support after they learned in November that she was brain-dead. But her hospital refused, believing that it would be breaking a Texas law which mandated life support of pregnant women to save the life of a foetus.

At the other side of the country, in Oakland, California, 13-year-old Jahi McMath was declared brain-dead in December and the hospital recommended that she be taken off life support. Her relatives refused.

How should such stand-offs be resolved?

The authors insist that the medical profession and the law must draw a line at brain death. On one side of that line, patients are alive. On the other, they are dead. Too much is at stake, they argue.

The determination of death is a highly significant social boundary. It determines who is recognized as a person with constitutional rights, who deserves legal entitlements and benefits, and when last wills and testaments become effective. Sound public policy requires bright lines backed up by agreed-on criteria, protocols, and tests when the issue is the determination of death. The law and ethics have long recognized that deferring to medical expertise regarding the diagnosis of brain death is the most reasonable way to manage the process of dying. Nothing in these two cases ought to change that stance.

What about grieving families? Should they have a say in the matter?

Not really, say the authors. A brain-dead person is a dead person. The feelings of the family must be taken into account and it is only humane and politic to give them a few days for the truth to sink in. But in the end, the family is clearly wrong about the facts of the case.

“Proponents of allowing family members to determine death threaten to undermine decades of law, medicine, and ethics… Families often need time to accept death, and that can be particularly complicated in cases of brain death. For the family's benefit, a short-term accommodation can be ethically justified. But these psychological realities do not undermine the important social construction of death when the brain has ceased all meaningful activity.

Will articles like this settle the question? Perhaps not. Magnus, Wilfond and Caplan frame their argument in terms of good public policy, rather than proving that brain death is death. In fact, they imply that patients in a permanent vegetative state could be also “defined” as dead. “Although one could conceivably draw the line somewhere else, such as loss of cognitive functioning, the reliability and social consensus that has emerged around brain death as death is reflected in the broad legal agreement under which brain death is recognized in every state.”