Reincarnation and discrimination
by Dominic Wilkinson @Neonatalethics
In California, in the last week, there have been further motions in a long running lawsuit relating to a brain-dead child. Oakland teenager Jahi McMath died after a tonsillectomy in December 2013. However, her parents rejected the medical diagnosis of brain death, and despite a Californian court providing judicial backing for doctors’ determination, organized for her to have a tracheostomy and be transferred to another medical facility. More than 18 months later it appears that Jahi’s heart is still beating and she is still connected to a breathing machine somewhere in New Jersey.
There are a host of challenging ethical questions in this case. One of these is raised by a curious inconsistency in US law around brain death. It isn’t a coincidence that this is where Jahi now resides. In New Jersey, statute specifically allows a religious exemption to the process of determining brain death that applies everywhere else in the US
“The death of an individual shall not be declared upon the basis of neurological criteria … when the licensed physician authorized to declare death, has reason to believe, … that such a declaration would violate the personal religious beliefs of the individual. In these cases, death shall be declared, and the time of death fixed, solely upon the basis of cardio-respiratory criteria ….”
The justification for this exemption is that some members of the New Jersey community reject the concept of brain death. Although all major religions accept brain death, some subgroups (for example some Orthodox Jews) do not.
One practical challenge of the New Jersey exemption is that it could appear to make death a contingent matter of location. Did Jahi McMath come back to life when she crossed the New Jersey state border?*
More broadly, although New Jersey is a particularly striking example, there are differences in the criteria used for defining death even where brain death is accepted (see here, and here) both within countries and between countries. So the problem of cross border reincarnation* or at least cross border inconsistency is not restricted to the East coast of the US.
However, there is a further problem in relation to the New Jersey statute, in that it specifies exemption for religious objections to the concept of brain death. But while one reason for the law is a concern to avoid discriminating against those who hold particular religious views on death, this very clearly discriminates against those who share those views on non-religious grounds. (Although rare, there are secular opponents of brain death). It may or may not be justified to allow people to opt out of a concept of death that is endorsed by the majority. However, it appears problematic to confine that to those who have a religious reason.**
This is an example of a wider issue. There are a range of situations where states may be tempted to grant a religious exemption to a norm. For example, perhaps we think that believers should be exempted from performing abortions, working on a religious festival, being conscripted to military service etc. In a medical context, believers may be given access to expensive medicines that reduce the need for a blood transfusion, or medications that are not derived from pork. However, whenever such exemptions or special treatment are warranted, they should apply equally to those with religious or non-religious reasons to desire different treatment.
It is possible that actual reincarnation, and eternal life is confined only to believers of a particular religious tradition. However, down here on Earth, we have the option of being more impartial. Cross-border reincarnation, and eternal ‘life’ on a ventilator, should be open to all, or to none.
*This is not strictly speaking correct, since the NJ statute only refers to the ‘declaration of death’. Had Jahi had her surgery in New Jersey she could not have been declared dead. However, having been declared deceased elsewhere there is nothing in the NJ statute to undo the previous determination.
**One possible reason to confine exemptions to members of a particular religion is because of a desire to reduce the total number of exemptions (where these are particularly costly). For example, since continued mechanical ventilation in intensive care is very expensive, states may have a desire to reduce the number of individuals who claim an exemption to brain death and request continued treatment. However, where limited resources provide a reason to discourage or prevent some individuals from demanding expensive treatment, this should apply equally to those with religious or non-religious reasons underlying their demand.