A legal quirk means you can be dead in New York but alive in New Jersey

Who is really dead?
Who is really dead?
Image: Reuters/ Jorge Cabrera
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Driving from New York to New Jersey is all it takes to bring someone back from the dead.

“If you’re brain dead in the US you’re dead. Legally. Except New Jersey, if you have a religious exemption,” says Thaddeus Pope, law professor and bioethicist at Mitchell Hamline School of Law. “You’d think who’s alive and who’s dead would be one of the few questions on which all of American society could have clarity and consistency on.”

All 50 states in the US recognize that someone is legally dead once they are brain dead, meaning they have “sustained irreversible cessation of all functions of the entire brain, including the brain stem,” according to the Uniform Declaration of Death Act (UDDA). Those declared brain dead will never be conscious or responsive. They will never think, or be a sentient being in any meaningful sense of the word. But whether or not they’re really dead depends on how death is interpreted and who you ask.

The New Jersey version of this act, for example, contains a rather large exemption: Death cannot be declared “in violation of individual’s religious beliefs.” The law goes on to state that a physician should not declare someone dead on the basis of brain death if he or she, “has reason to believe…that such a declaration would violate the personal religious beliefs of the individual.” Many Orthodox Jews interpret a passage in the Talmud as implying that someone is alive as long as they’re breathing, regardless of brain death. Some Buddhists, Native Americans, and evangelical Protestants believe someone is alive as long as their heart is beating, through in every case this belief is a subjective interpretation of religious doctrine, rather than a widely held view.

Three other states, California, Illinois, and New York, also legal require that hospitals make “reasonable accommodations” to families’ objections to brain death. But it’s not a blanket exemption as in New Jersey and, in practice, hospitals usually continue physiological support for a further 24 hours after declaring brain death. In New York especially, this allows time for families to transfer the patient to New Jersey should they wish to do so.

In practical terms, the New Jersey law has little effect. It’s fairly rare to die of brain death. Instead, most people are declared dead according to the second clause in the UDDA: “irreversible cessation of circulatory and respiratory functions,” meaning their heart stops beating. And off the small number who are declared dead according to brain death, very few have families who object. But Pope says he has heard of people being transferred from New York to New Jersey hospitals at their families’ wishes so they remain legally recognized as alive. And life support is advanced enough to keep someone breathing and legally “alive” for many years after brain death—as long as they stay in New Jersey.

The question of whether a declaration of death according to brain death is truly definitive has come under greater scrutiny recently due to the ongoing case of Jahi McMath. McMath was declared dead in California, on December 11, 2013 on the basis of her brain death, but her family rejects that medical verdict, and is now a legal battle to have it reversed. In the meanwhile, McMath remains on life support thanks to clinicians in New Jersey, found by her family, who agreed to oversee her continued use of a ventilator and feeding tube.

McMath’s family has said declaring Jahi dead by by brain death goes against their religious beliefs. But this argument has been made by other families and dismissed in several states. The McMath case has gained legal traction as the family has also claimed to have evidence that Jahi does in fact show signs of brain activity. And, in an additional argument, the McMaths claim that the legal definition of death is not, in practice, applied medically. The law technically states that there should be “cessation of all functions of the entire brain” in order to be a case of brain death, yet, the McMaths argue, doctors often classify patients with extremely basic brain functions as brain dead.

Challenges to the legal definition of brain death have become more common since McMath’s family began publicly fighting her case five years ago. But opposition to the brain-death legal standard is still incredibly rare, notes Pope. Plus, there are concerns that questioning how we declare death could lead people to distrust medical standards on the practice and so opt to not donate their organs, thus creating an even great shortage for those in need of lifesaving transplants.

If the McMaths’ lawsuit is successful, the road will be cleared for further challenges to how death is medically recognized across the US. The McMaths are also bringing a malpractice suit against the UCSF Benioff Children’s Hospital in Oakland, claiming that Jahi became severely brain damaged as a result of medical negligence. A California judge has ruled that a jury will decide whether McMath is alive or dead; a trial date has not yet been set, and it will likely be months before there’s a decision.

If the jury decides that Jahi, once officially dead, is in fact alive, or if they believe that the legal definition of brain death is not sufficiently applied in medical practice, it will create legal ambiguity in declaring death. That would inevitably give weight to those who have religious objections to the brain death criteria upheld throughout most of the US.

It would also reflect a disturbing reality: there are different ways to draw the line between brain death and brain function, between life and death. If the case is decided in the McMaths’ favor, it “would illustrate that brain death a value judgment,” says Pope. “It’s not a scientific truth that we discover. It’s something we decide, it’s something we create.”

As the New Jersey law shows, even death is subjective.