BY DANIEL GAITAN | daniel@lifemattersmedia.org

OAKLAND – A California court has ruled that the mother of a teenage girl declared brain dead more than two years ago can try to prove she is still alive.

Jahi McMath was declared brain dead after she went into cardiac arrest following a failed tonsillectomy at UCSF Benioff Children’s Hospital in December, 2013. She was 13.

However, McMath’s family does not accept that she is dead and moved her to New Jersey, where she remains on organ-support machines in an undisclosed location. They are suing the hospital and doctor who performed the procedure.

They cleared a hurdle this month when the First Appellate Court denied appeals by the hospital that McMath was legally dead and should be recognized as deceased in a civil trial, The Mercury News reports. They may now present any evidence in attempts to prove that she is alive.

If the court agrees, the family could sue her surgeon and the hospital for millions of dollars. The case will continue in Alameda County Superior Court and is likely to go on for years.

Brain death is defined as irreversible loss of all functions of the brain, including the brainstem. Since 1968, there has been consensus among scientists on what constitutes death in modern hospitals where technology may sustain other functions of life— breathing, temperature control, nutrition and hydration.

“Because machines can support the bodies of people, especially formerly healthy children, the determination of death is made when it is clear that the entire brain does not receive oxygen— this is the criteria that many people think of as ‘brain dead,’” Laurie Zoloth, a professor of medical humanities and bioethics at Northwestern University, told Life Matters Media.

ETHICAL CONCERNS

DePaul University bioethicist Craig Klugman emphasizes that the court’s decision allows only a hearing to McMath’s family.

“She was by a number of neurologists, by the coroner of Alameda County, declared dead,” Klugman told LMM. “The onus is proving that she’s not dead. Just because a body is being maintained does not mean that she’s not brain dead.”

Klugman said the case raises many ethical dilemmas. Depending on one’s perspective, one could view the court’s decision as “compassionate” or even “unfair.”

“Maybe that’s what they need to have closure, their day in court,” Klugman said. “But if we’re talking about it from a justice perspective and the amount of money, time and resources being spent on this person, this body, that’s disturbing. These resources could be put toward living people.”

Klugman also raised the slim possibility that McMath is not dead or could have minimal brain activity.

“Is harm being caused to Jahi, herself or to the body?” Klugman added. “If she is brain dead, then there is no harm to her as a person. But, there could be desecration of the corpse.”

Klugman said that because so little information regarding McMath has been released to the public, it is impossible to know for sure.

Zoloth said she hopes the family comes to understand the limits of modern medicine. “While it is very understandable that this family grieves deeply, and while the loss of a child is an unspeakable tragedy, there is nothing that lawyers or doctors can do to make this child return to them.”