The Case for Reasonable Accommodation of Conscientious Objections to Declarations of Brain Death
Since its inception in 1968, the concept of whole-brain death has been contentious, and four decades on, controversy concerning the validity and coherence of whole-brain death continues unabated. Although whole-brain death is legally recognized and medically entrenched in the United States and elsewhere, there is reasonable disagreement among physicians, philosophers, and the public concerning whether brain death is really equivalent to death as it has been traditionally understood. A handful of states have acknowledged this plurality of viewpoints and enacted “conscience clauses” that require “reasonable accommodation” of religious and moral objections to the determination of death by neurological criteria. This paper argues for the universal adoption of “reasonable accommodation” policies using the New Jersey statute as a model, in light of both the ongoing controversy and the recent case of Jahi McMath, a child whose family raised religious objections to a declaration of brain death. Public policies that accommodate reasonable, divergent viewpoints concerning death provide a practical and compassionate way to resolve those conflicts that are the most urgent, painful, and difficult to reconcile.
KeywordsBrain death Death Conscientious objection Reasonable accommodation
- BBC News. 2013. Jahi McMath, “brain dead” US girl: Life support extended. BBC News, December 31. http://www.bbc.co.uk/news/world-us-canada-25552818. Accessed January 24, 2014.
- Engelhardt, H.T. 1986. The foundations of bioethics. New York: Oxford University Press.Google Scholar
- Fields, L. 2013. Mom of girl on life support: “I can’t let them kill my baby a second time.” ABC News, December 22. http://abcnews.go.com/US/mom-girl-life-support-kill-baby-time/story?id=21305193. Accessed January 24, 2014.
- Ford, D. 2013. Jahi McMath’s family seeks to move brain-dead girl to another facility. CNN Health, December 26. http://www.cnn.com/2013/12/26/health/jahi-mcmath-girl-brain-dead/index.html?iref=allsearch. Accessed January 24, 2014.
- HHC Ethics Network. No date. Brain death and reasonable accommodation. New York City Health and Hospitals Corporation. http://hhcethics.org/paragraphs/Brain_Death_and_Reasonable_Accommodation.shtml. Accessed January 24, 2014.
- Larue, C., J. DeJong, M.P. Schlosser, et al. 2013. A survey to determine public opinion regarding whether brain death is death and should allow vital organ donation. American Journal of Respiratory and Critical Care Medicine. http://www.atsjournals.org/doi/abs/10.1164/ajrccm-conference.2013.187.1_MeetingAbstracts.A4433.
- Lupkin, S. 2014. Why Jahi McMath’s mom is sure her daughter isn’t brain dead. ABC News, December 16. http://abcnews.go.com/Health/jahi-mcmaths-mom-daughter-brain-dead/story?id=27570953. Accessed December 16, 2014.
- Machado, C. 2007. Brain death: A reappraisal. New York: Springer.Google Scholar
- National Health Service. 2012. Brain death. http://www.nhs.uk/conditions/brain-death/Pages/Introduction.aspx. Accessed January 24, 2014.
- New York State Department of Health and New York State Task Force on Life and the Law. 2011. Guidelines for determining brain death. http://www.health.ny.gov/professionals/hospital_administrator/letters/2011/brain_death_guidelines.htm. Accessed January 24, 2014.
- Onishi, N. 2014. A brain is dead, a heart beats on. The New York Times, January 4, A10.Google Scholar
- President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. 1981. Defining death: Medical, legal and ethical issues in the determination of death. Washington, DC: U.S. Government Printing Office.Google Scholar
- President’s Council on Bioethics. 2008. Controversies in the determination of death. Washington, DC. https://bioethicsarchive.georgetown.edu/pcbe/reports/death/. Accessed January 24, 2014.
- Schuchman, A.D. 1998. The holy and the handicapped: An examination of the different applications of the reasonable-accommodation clauses in Title VII and the ADA. Indiana Law Journal 73(2): 745–764.Google Scholar
- Shah, S.K., and F.G. Miller. 2010. Can we handle the truth? Legal fictions in the determination of death. American Journal of Law & Medicine 36(4): 540–585.Google Scholar
- U.S. Equal Employment Opportunity Commission. 2002. Enforcement guidance: Reasonable accommodation and undue hardship under the Americans with Disabilities Act. http://www.eeoc.gov/policy/docs/accommodation.html. Accessed January 24, 2014.
- Veatch, R.M. 2014. Comments to An ICU nurse discusses brain death. Bioethics Forum. http://www.thehastingscenter.org/Bioethicsforum/Post.aspx?id=6679&blogid=140. Accessed January 24, 2014.