For 50 days, two-year old Israel Stinson occupied a hospital bed in California, where a ventilator forced air into his lungs, keeping oxygen flowing throughout his tiny body.  Israel is brain dead, and has been since April 2, 2016.  Any diagnosis of brain death is based on three criteria: i) absence of brainstem reflexes (e.g. pupil reaction to light, gag reflex); ii) coma (as evidenced by zero responsiveness); and iii) failure of an apnea test.  In Israel’s case, such a clinical and definitive determination was made by no fewer than three different physicians at two different hospitals.  Mechanical ventilation did not give Israel life, nor is it keeping him alive.  It is merely replacing the function of his lungs, which can no longer function on their own.  His heart continues to beat, not because he is alive, but because heart function is not entirely dependent on the brain.  Brain death is death; the term simply describes how the death was determined.

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California law allows a hospital to disconnect mechanical support in the event of brain death, however Israel’s family waged a legal battle in the United States District Court to block his hospital from doing just that.  Court documents indicate that “Plaintiffs are Christians with firm religious beliefs that as long as the heart is beating, Israel is alive.”  On May 13th, the court rejected the lawsuit to keep Israel on indefinite “life support” but upheld a temporary restraining order keeping the ventilator in place, thus allowing the family time to appeal. An appeal was filed with the 9th U.S. Circuit Court of Appeals, but that appeal was essentially rendered moot when this past weekend, the family had Israel transferred to another medical facility outside of the United States.  Citing privacy, the family’s attorney would not disclose the name of the hospital or its location.  Israel’s body remains on a ventilator.

Hard data on the frequency of brain death disputes is evasive, particularly since there is great disparity in media coverage from case to case.  Some cases, like that of 13-year old Jahi McMath, have received enough media attention as to have firmly galvanized the public.  Thaddeus Pope, a law professor at Mitchell Hamline School of Law, refers to this as the Jahi McMath shadow effect. In an interview last week, Pope stated, “It’s casting a shadow; it has had some impact. I don’t know how to quantify it, but based on my discussion with physicians at a number of hospitals, it does seem there’s an uptick.”  Personal injury attorney Chris Dolan, for example, has worked on seven brain death disputes to date, including that of Jahi McMath.  In Jahi’s case, the law was leveraged to allow her family to have their daughter transferred to New Jersey where her body remains on a ventilator, more than two years after being declared brain dead.  This shift in public perception of the concept of brain death concerns Arthur Caplan, director of the Division of Medical Ethics at New York University School of Medicine:

“It becomes important for the medical field to be responsive to these cases. Not heartless or cruel, but nonetheless try to explain what the concept is, how it’s tested.”

Many doctors consider efforts to ventilate a dead body in the face of all medical evidence to be wrong and unethical.  It is indeed telling that not a single hospital facility in the United States would agree to accept Israel’s body after the diagnosis of brain death.

Meanwhile, in a statement Sunday, Israel’s mother Jonee Fonseca declared, “Victory!”.

Jennifer Hartman