Defining Death

Last week, I participated in a lunch time panel discussing the Marlise Munoz case with Terry Rosell of Kansas City's Center for Practical Bioethics. My ppt from that panel is posted here.  So much ink and tears have been shed over Marlise Munoz that I doubted I could say anything original.

I did think it might be interesting (heck, even refreshing) to begin at the beginning — starting with the facts of the case as they are publicly known and then moving to the Texas death statute without immediately jumping to the Texas advance health care directive statute.  

The way I see it, the hospital's hesitation between the medical record notation of brain death (two days post admission)  and the official declaration of death (several weeks later and under a court order noting Marlise Munoz had, in fact, been dead for several weeks) is even more interesting than the curious case of pregnancy exclusions from medical advance care directives. And that's saying something.

The relevant Texas death statute provides what I describe as a whole lotta ways to be dead in Texas. First, it indicates you may be dead under Texas law under a conventional definition of cardiac death. Second, it indicates you may be dead under Texas law under a definition of what we know as brain death.  Third, it discusses the role of a physician in declaring death.  Then, the statute  also states, in a free standing sentence, that death occurs when the conditions of brain death are met. Period.  

Here's the language:

So, did the hospital keep Marlise Munoz legally "alive" by refusing to officially declare death in the form of a death certificate  in the interval between the hospital staff's medical chart  determination of brain death (reportedly two days afer emergency admission) and the court's order to declare her dead several weeks later?  Can you, simultaneously, be medically dead but not legally dead?  If so, for how long?

Of course, death is a cultural construct as well as a medical and legal one.  But, it is usually seen as a curious amalgam of these things and not a dispute over which triumphs.  The Texas death statute, in short, created space — with its multiple definitions of death and multiple indications of the effective occurence of death — for the Marlise Munoz dispute to even arise.

You should know that other states have similarly turgid death statutes, a legacy of the combination of historical artifact, non-uniform adoption of statutory language designed to advance a uniform definition of death, and our own ambivalence about whether death is a state of being best defined biologically or legally.