Jahi McMath was a 13-year-old girl who went to the hospital for a simple, routine tonsillectomy and adenoidectomy. After surgery, she started to bleed heavily from the mouth and went into cardiac arrest. Three days after surgery, Jahi was declared brain dead by two neurologists at Children’s Hospital & Research Center in Oakland, California. Her mother, Nailah Winkfield, refused to accept the diagnosis of “brain death” and sought a court order to stay the removal of any mechanical support. Alameda Superior Court Judge Evelio Grillo ruled that no decisions could be made regarding discontinuing supportive technologies until December 30, and ordered that both sides work together. The court also appointed Dr. Paul Fisher, chief of pediatric neurology at Stanford’s Children Hospital, to determine if he concurs with the determination of brain death.

If Jahi is truly dead, then the hospital does not need permission to cease mechanical support. The body will not reanimate, her brain will not begin to function, Jahi will not be resurrected, and she certainly will not be cured of death. There is no law or medical ethic that requires treating a dead person.

Dr. Fisher corroborated that Jahi is brain dead, but her mother claims she still has hope she could recover. With the court stay expiring at 5pm on December 30, Winkfield has struggled to find a facility to which she can transfer her daughter’s body. The Oakland hospital will transport Jahi’s body, but refuses to perform the surgical procedures (tracheotomy and gastric tube insertion) most facilities require. The hospital maintains that such procedures hold no potential benefit to the patient. The family is fundraising to cover the cost of moving Jahi’s body to a facility in New York, which as of this writing has not given an indication of whether it will accept the transfer.

Brain death is a confusing term. It does not mean that every cell in the brain has ceased to function or that cellular decay has occurred. Brain death indicates that the major parts of the brain (cerebellum, cerebrum and brain stem) have irreversibly ceased to function (usually determined by flat brain waves, lack of spontaneous breathing lack of visual pupil reaction to light; sometimes demonstrated by a lack of blood flow in the brain).

The confusion is that a body on a respirator and receiving other support measures may still appear to breathe, will feel warm to the touch and will have a heartbeat. To a family member who lacks understanding of the underlying biology, the loved one may appear to be asleep while attached to a number of machines. However, the only thing keeping the body functioning is mechanical support. Unlike comas or minimally conscious states, no one recovers from brain death. Brain death is death by both legal and medical criteria.

Except in Texas.

There, a brain dead woman’s body must be maintained on mechanical support if she is pregnant. Marlise Munoz is a 33 year-old female paramedic who has remained unresponsive since November 26, when she was found collapsed on her kitchen floor. Her husband and mother both agree that Marlise would not want to have her body’s functioning prolonged by machines. Under the Texas Advance Directive Act, an incapacitated patient’s decisions would be made by a designated surrogate decision-maker. If one is not named, decisions are made by a spouse. Thus, in this situation, the machinery should be removed and Marlise’s body permitted to die.

However, Texas fiercely protects the rights of fetuses, and so the Advance Directive Act does not apply during pregnancy. Marlise was 14-weeks pregnant when she suffered a pulmonary embolism. As a result, no one can legally remove mechanical support until the fetus becomes viable, likely at 24 to 28 weeks when it could be delivered through a cesarean section. Premature children face an expensive and difficult road to survival. Add to this challenge the fact that no one knows how long the fetus was without nutrition and oxygen when Marlise collapsed, and the chances for a good outcome diminish even more.

The family wants to exercise patient autonomy—self determination as to what should happen to one’s body—by honoring Marlise’s wishes to remove mechanical support. In conversations, Marlise stated this position; as a paramedic, she knew what it meant. Yet the state has intervened, maintaining that its interest in preserving an unviable fetus outweighs Marlise’s and her family’s Constitutional right to make medical choices.

Only two people should ever have the right to make medical choices—a patient (or his/her surrogate) and the physician. In no case should a legislator or other elected official have the right to choose for a patient that he or she has never met. Ceasing mechanical support after brain death is a difficult private decision that a family makes. It should not be part of a referendum, and tragedy should not be marched onto a public stage to make a point.

Both of these cases can make the concerned future patient (i.e. all of us) feel as if there is a political war on death. Culturally and socially, Winkfield cannot accept that her daughter experienced a tragic death after surgery. Politically, the state of Texas will not honor a woman’s (and family’s) choice to cease mechanical support. Tragic as both cases are-dead is dead, and no person or politician should be able to require a medical professional to perform procedures on the dead. In fact, doing so may be an act of desecration.

For those of us with an interest in civil rights at the end of life, these cases are an affront to human dignity. These cases demonstrate that even if you have had conversations with your families and done the appropriate things in preparing for your wishes to be honored, the state, a hospital policy or a well-intentioned relative who disagrees can waylay those plans.

What we need is a new law that says “dead is dead.” This law is required so that a dead girl’s body cannot be maintained only due to her mother’s fantastical hope, and so that a dead woman cannot be maintained against her wishes merely as a fetal incubator. We should allow the dead to die legally, medically, culturally and socially in order to honor the life that was lived. Let the dead rest in peace.