Abstract

http://ssrn.com/abstract=2386042
 


 



Legal and Ethical Responsibilities Following Brain Death: The McMath and Muñoz Cases


Lawrence O. Gostin


Georgetown University - Law Center - O'Neill Institute for National and Global Health Law

January 24, 2014

JAMA Online, 2014

Abstract:     
What are the legal and ethical implications of continuing to treat a brain dead patient? And may a hospital refuse to provide such treatment? These ethical and legal problems are raised in two recent cases. In the first Marlise Muñoz, a pregnant woman declared brain dead, was kept on life support against her family’s wishes due to the treating hospital’s interpretation of a Texas fetal protection law. In the other a hospital refused to treat Jahi McMath, a brain dead girl, despite her family's entreaties. The cases, at first, appear similar because in each case the hospital was refusing to abide by the family’s wishes. But on closer reflection, they are markedly dissimilar.

This opinion piece distinguishes brain death from a persistent vegetative state, arguing that once a person is brain dead it is unethical to continue treatment. Deceased individuals do not possess legally or ethically cognizable interests. The article similarly takes issue with the trend of placing the value of autonomy above all other interests, as well as perverting the meaning of autonomy. I argue that autonomy, properly understood, is the right to avoid unwanted intrusions rather than a right to have any medical treatment, however futile or cost ineffective. Finally, the article considers the competing claims in the Muñoz case — the woman’s right of autonomy on the one hand and the state’s interest in safeguarding her fetus on the other. Here, the article makes the case that the Texas statute protecting fetuses is not applicable to a deceased woman — a claim supported by a recent Texas district court opinion.

Number of Pages in PDF File: 3

Keywords: brain death, legal responsibilities, ethical responsibilities

JEL Classification: K30, K32, K39

Accepted Paper Series


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Date posted: January 29, 2014  

Suggested Citation

Gostin, Lawrence O., Legal and Ethical Responsibilities Following Brain Death: The McMath and Muñoz Cases (January 24, 2014). JAMA Online, 2014. Available at SSRN: http://ssrn.com/abstract=2386042

Contact Information

Lawrence O. Gostin (Contact Author)
Georgetown University - Law Center - O'Neill Institute for National and Global Health Law ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9038 (Phone)
202-662-9055 (Fax)
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