PE R S PE C T IV E Death in Pregnancy — An American Tragedy

that respect for pregnant wom- be aligned with the patient’s distress will arise again. Using a
en’s autonomy is not limited to and family’s wishes and against dead woman’s body as an incuba-
end-of-life choices. Decisions that a state’s interference with those tor against her wishes (as inter-
are left to patients, surrogates, wishes. It would seem both wrong preted by her family) should be
and families outside of pregnancy and difficult for the state to com- of grave concern to everyone who
should remain theirs during preg- pel a provider to participate in a cares for and about both women
nancy as well. patient’s care against her and her and our nation’s moral health.
Practically speaking, what is a family’s wishes. Yet for some Disclosure forms provided by the author
clinician to do when what a hos- physicians, the consequences of are available with the full text of this arti-
cle at NEJM.org.
pital’s attorney says must be done seeming to break the law (real or
seems different from what should imagined risks of losing hospital From the Department of Obstetrics and Gy-
be done? As Martin Luther King, privileges or one’s state license) necology, Massachusetts General Hospital
and Harvard Medical School, Boston.
Jr., famously wrote, “One has a may weigh too heavily to allow
moral responsibility to disobey un- them to disobey. Such physicians This article was published on February 5,
just laws.” If asked to violate a may object by making their moral 2014, at NEJM.org.

pregnant woman’s wishes regard- distress clear to their patients and 1. Texas Constitution and Statutes. Health
ing her end-of-life care, physicians the public and advocating for and safety code (http://www.statutes.legis
could appropriately choose to changes in the law. .state.tx.us/Docs/HS/htm/HS.166.htm
#166.049).
support the patient by declaring a Marlise Muñoz was dead for 2. Feldman DM, Borgida AF, Rodis JF,
conscientious objection. Though 2 months before she could be Campbell WA. Irreversible maternal brain
conscientious objection should ar- cremated. This event calls into injury during pregnancy: a case report and
review of the literature. Obstet Gynecol Surv
guably have limits, particularly question the moral appropriate- 2000;55:708-14.
in reproductive medicine and es- ness of laws limiting pregnant 3. Braindeath.org. Texas statute: death
pecially in emergency situations, women’s right to have their end- and disposition of the body (http://www
.braindeath.org/law/texas.htm).
those limits relate to clinicians of-life wishes honored. Although, 4. Committee on Ethics. ACOG committee
unwilling to provide requested fortunately, the need to make end- opinion Number 403 April 2008: end-of-life
and accepted care such as emer- of-life decisions is rare in obstet- decision making. Obstet Gynecol 2008;111:
1021-7.
gency contraception. In contrast, rics, the prevalence of statutes 5. In re A.C., 573 A.2d 1235 (D.C. 1990).
in cases like this Texas tragedy, constraining women’s autonomy DOI: 10.1056/NEJMp1400969
conscientious objection would argues that similar conflict and Copyright © 2014 Massachusetts Medical Society.

Accepting Brain Death

David C. Magnus, Ph.D., Benjamin S. Wilfond, M.D., and Arthur L. Caplan, Ph.D.

T wo cases in which patients

have been determined to be
dead according to neurologic
Children’s Hospital and Research
Center in Oakland from discontin-
uing ventilator support. Per a court-
after the medical and legal criteria
for death were met, in an attempt
to “rescue” her fetus. Muñoz was
criteria (“brain death”) have re- supervised agreement, the body 14 weeks pregnant when she
cently garnered national head- was given to the family 3 weeks died from pulmonary embolism.
lines. In Oakland, California, after the initial determination. Her family asserted that continu-
Jahi McMath’s death was deter- The family’s attorney stated that ing ventilatory support was con-
mined by means of multiple in- ventilatory support was continued trary to what the patient would
dependent neurologic examina- and nutritional support added at have wanted, but John Peter Smith
tions, including one ordered by a an undisclosed location. Hospital cited a state law requir-
court. Her family refused to ac- In Fort Worth, Texas, Marlise ing that support not be terminated
cept that she had died and went Muñoz’s body was maintained on if a patient is pregnant. A judge
to court to prevent physicians at mechanical ventilation for 8 weeks ultimately ordered that the hospi-

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PERS PE C T IV E Accepting Brain Death

undermine decades of law, med-

Determination of Brain Death*
icine, and ethics.
1. Absence of neurologic function with a known irreversible cause of coma The current U.S. approach to
2. Correction of conditions affecting evaluation of brain death (performed before neurologic determining death was developed
evaluation): in response to the emergence of
• hypotension technologies that made the tradi-
• hypothermia tional standard of cardiopulmo-
• metabolic disturbances nary death problematic. In 1968,
3. Discontinuation of medications affecting the neurologic examination (performed before an ad hoc committee at Harvard
neurologic evaluation): Medical School published an in-
• sedatives fluential article arguing for ex-
• neuromuscular blockers tending the concept of death to
• anticonvulsants patients in an “irreversible coma.”1
4. Timing of neurologic evaluation should be more than 24 to 48 hours after cardiopulmonary The emerging neurologic criteria
resuscitation or other severe acute brain injury
for death defined it in terms of
5. Duration of observation (pediatric cases):
loss of the functional activity of
• 24 hours for neonates (37 weeks of gestation to 30 days after birth for term infants) the brain stem and cerebral cortex.
• 12 hours for infants and children (>30 days to 18 years of age) Although clinical criteria were
6. Clinical evaluation: developed in the 1960s, it took
• absence of pupillary response to a bright light more than a decade for consen-
• absence of movement of bulbar musculature sus over a rationale for the defini-
• absence of gag, cough, sucking, and rooting reflexes shown by examining the cough response tion to emerge. In 1981, the Presi-
to tracheal suctioning dent’s Commission for the Study
• absence of corneal reflexes demonstrated by touching the cornea; no eyelid movement of Ethical Problems in Medicine
should be seen
and Biomedical and Behavioral Re-
• absence of oculovestibular reflexes shown by irrigating each ear with ice water; movement
of the eyes should be absent during 1 minute of observation
search provided a philosophical
definition of brain death in terms
7. Apnea testing:
of the loss of the critical func-
• Pretest: confirmation of complete absence of spontaneous respiratory effort — preoxy-
genate with 100% oxygen, maintain core temperature above 35°C, normalize pH, blood tions of the organism as a whole.2
pressure, and arterial blood gas (partial pressure of carbon dioxide [PaCO2]) Shortly thereafter, the Nation-
• Test: demonstration of increase in arterial PaCO2 of at least 20 mm Hg above baseline al Conference of Commissioners
and of a total PaCO2 of at least 60 mm Hg, with no observed respiration on Uniform State Laws produced
• Ancillary study: indication to perform if there is a medical contraindication to the apnea the Uniform Determination of
test, hemodynamic instability, desaturation to less than 85%, or the inability to reach a
PaCO2 of at least 60 mm Hg Death Act, which has been ad-
• Evidence of any respiratory effort is inconsistent with brain death, and the apnea test opted in 45 states and recognized
should be terminated in the rest through judicial opin-
8. Ancillary studies: ion.3 In response to pressure
• electroencephalography from a vocal religious minority,
• radionuclide cerebral blood flow New York and New Jersey added
• spinal cord reflexes if abnormal movements present religious exceptions that affect
the timing of the declaration of
* Derived from the American Academy of Neurology. death. Even in these states, how-
ever, the vast majority of the
time, the standard medical crite-
tal follow the medically and legal- their religious beliefs (both about ria for death are followed.
ly indicated steps of declaring the when death occurs and about Over the past several decades,
patient dead and removing venti- prognosticating a possibility of brain death has become well en-
latory support. recovery) were not respected. In trenched as a legal and medical
The McMath family’s attor- making this argument, propo- definition of death. It is clearly
ney claimed that their constitu- nents of allowing family members defined by the neurologic com-
tional rights were violated and to determine death threaten to munity (see box), standards for

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PE R S PE C T IV E Accepting Brain Death

diagnosis are in place, and it is procure organs after such decla- ments for that as a philosophical
established in law. It has become rations. position, it is far out of touch
the primary basis of organ-pro- Unfortunately, these views raise with currently accepted medical
curement policy for transplanta- severe difficulties for public policy. and legal standards and public
tion. Ironically, the other standard In a society tolerant of individual opinion.5
for defining death, irreversible ces- values and views, family views We believe that there is no
sation of circulation, lacks consen- are appropriately given great good reason to take such a dras-
sus about diagnosis. weight in deciding exactly when tic step. Dying is a process. Parts
The concept of brain death to discontinue mechanical sup- of the body die, and then other
has periodically come under crit- port. If brain death were not de- parts do. Eventually, gradually,
icism.4 The primary objections fined as death, it would be more all the cells die. Where in that
focus on inadequacies in the philo- difficult to justify routine deci- process should the line between
sophical rationale for the concept sions to discontinue mechanical life and death be drawn? Given
that the unifying functioning of support in this context. Families the brain’s importance in deter-
the body has been lost with loss often need time to accept death, mining who we are and its cru-
of brain functioning, combined and that can be particularly com- cial role in driving the activity of
with a concern that biologically, plicated in cases of brain death. bodily organs and systems, it is
there is still a sense that the For the family’s benefit, a short- not surprising that loss of corti-
body is alive, often long after term accommodation can be eth- cal and brain-stem function should
brain death occurs. Wound heal- ically justified. But these psycho- be equated with death.
ing can continue to occur, most
organs continue to function for Brain death is now clearly defined by
some period, hormonal and body-
temperature regulation may be the neurologic community, standards for
maintained. It has been reported
that a child’s growth can continue.
diagnosis are in place, and it is established
And as the Muñoz case demon- in law. It has become the primary basis of
strates, a pregnancy can be main-
tained even after the pregnant organ-procurement policy for transplantation.
woman has met the neurologic
criteria for death.
Ironically, the other standard for defining
Even many of the most vocal death, irreversible cessation of circulation,
critics of brain death agree that
there is no obligation to continue lacks consensus about diagnosis.
providing mechanical support af-
ter brain death. Although they do logical realities do not undermine Seen in this light, the decision
not consider brain death to be the important social construc- reached by the medical and par-
death, many of them agree that tion of death when the brain has ticularly the neurology commu-
the person has ceased to exist ceased all meaningful activity. nity to articulate and promulgate
and has no interests at stake in Rejecting brain death by shift- the concept of brain death as the
the discontinuation of ventilator ing toward a more fluid and var- right place to draw the line be-
support. Although some physi- iable standard might undermine tween life and death is extremely
cians accommodate a family’s support for cadaveric organ do- reasonable. There are clear medi-
grief by allowing a brief delay nation. The “dead-donor rule,” a cal criteria that can be reliably
either before completing brain- fundamental concept of trans- and reproducibly utilized to de-
death examinations or before dis- plant ethics, requires that patients termine that death has occurred.
continuing mechanical support not be killed by the removal of If professional standards are fol-
after a brain-death determination, vital organs necessary for life. lowed properly, there are no false
these actions are for the family, Some critics of brain death seek positives. Brain-dead patients are
not the patient. In addition, many to abandon the dead-donor rule. clearly past the point of any pos-
believe that it is appropriate to Whatever one thinks of the argu- sibility of recovery. Although one

n engl j med 370;10 nejm.org march 6, 2014 893

PERS PE C T IV E Accepting Brain Death

could conceivably draw the line tional rights, who deserves legal (B.S.W.); and the Division of Medical Eth-
ics, New York University, New York (A.L.C.).
somewhere else, such as loss of entitlements and benefits, and
cognitive functioning, the reliabil- when last wills and testaments This article was published on February 5,
ity and social consensus that has become effective. Sound public 2014, at NEJM.org.
emerged around brain death as policy requires bright lines backed
death is reflected in the broad up by agreed-on criteria, proto- 1. A definition of irreversible coma: report of
the Ad Hoc Committee of the Harvard Medi-
legal agreement under which brain cols, and tests when the issue is cal School to Examine the Definition of Brain
death is recognized in every state. the determination of death. The Death. JAMA 1968;205:337-40.
Medical and legal acceptance law and ethics have long recog- 2. President’s Commission for the Study of
Ethical Problems in Medicine and Biomedi-
that the irreversible loss of brain nized that deferring to medical cal and Behavioral Research. Defining death:
functioning is death enables fam- expertise regarding the diagnosis a report on the medical, legal and ethical is-
ilies to grieve the loss of their of brain death is the most reason- sues in the determination of death. Washing-
ton, DC: Government Printing Office, 1981.
loved ones knowing that they able way to manage the process 3. National Conference of Commissioners
were absolutely beyond recovery, of dying. Nothing in these two on Uniform State Laws. Uniform Determi-
as distinct from patients in a cases ought to change that stance. nation of Death Act, 1981 (http://www
.uniformlaws.org/shared/docs/determination
coma or a vegetative state. It errs Disclosure forms provided by the authors %20of%20death/udda80.pdf).
on the side of certainty when or- are available with the full text of this article 4. Truog RD, Miller FG, Halpern SD. The
gan procurement is requested. at NEJM.org. dead-donor rule and the future of organ do-
nation. N Engl J Med 2013;369:1287-9.
The determination of death is a 5. Bernat JL. Life or death for the dead-donor
highly significant social bound- From the Center for Biomedical Ethics, rule? N Engl J Med 2013;369:1289-91.
Stanford University, Palo Alto, CA (D.C.M.);
ary. It determines who is recog- the Treuman Katz Center for Pediatric Eth- DOI: 10.1056/NEJMp1400930
nized as a person with constitu- ics, Seattle Children’s Hospital, Seattle Copyright © 2014 Massachusetts Medical Society.

Beyond Repeal — A Republican Proposal for Health Care Reform

Timothy Stoltzfus Jost, J.D.

B y voting repeatedly to repeal

the Affordable Care Act (ACA)
over the past 4 years, Republi-
nently changed the health policy
landscape. The proposal would,
for example, retain the ACA’s
ance policy except in the case of
fraud. It would retain limits on
age rating of insurance premi-
cans have risked being identified Medicare provisions in recogni- ums, but insurers could charge
as a party without a positive tion, no doubt, of the difficulty five times as much for an older
health policy agenda. On Janu- of rolling back all the ACA’s pro- as for a younger enrollee, as op-
ary 27, 2014, however, three vider-payment changes or reopen- posed to the three-to-one ratio
Republican senators — Orrin ing the doughnut hole in Part D limit in the ACA.
Hatch (UT), Tom Coburn (OK), coverage of prescription drugs but The proposal would, like the
and Richard Burr (NC) — un- also apparently in order to use the ACA, use premium tax credits to
veiled a proposal that would not ACA’s $700 billion in Medicare make health coverage affordable
only repeal the ACA, but also re- payment cuts to finance Repub- for lower-income Americans. Un-
place it with comprehensive legis- lican initiatives. The proposed like the ACA’s tax credits, which
lation based on Republican health legislation would retain popular are available to families with in-
policy principles.1 Although the ACA insurance reforms, including comes of up to 400% of the fed-
proposal recycles long-standing the ban on lifetime insurance eral poverty level ($95,400 for a
Republican prescriptions, it also limits, required coverage for chil- family of four) and are based on
offers new ideas. dren up to 26 years of age on the actual cost of health insur-
The proposal would not en- their parents’ policies, mandated ance in particular markets, the
tirely repeal the ACA. Republicans disclosure of insurance benefits Republican proposal would help
seem to be coming to terms with and limitations, and a ban on families with incomes of up to
the fact that the ACA has perma- canceling an enrollee’s insur- only 300% of the poverty level

894 n engl j med 370;10 nejm.org march 6, 2014