Who should define death?
Who defines death? There is more than one right answer in the case of Taquisha McKitty, a woman in her late twenties who was left braindead after a drug overdose in September.
That’s often the case with the big metaphysical questions: When does life begin? When does it end? What is it? And that’s why these questions are so ill-suited to being adjudicated by courts of law.
One of the right answers about McKitty is the one her family has provided.
They say McKitty, who has been on life support since last year, is still alive because her heart is still beating, and that’s how these matters are judged in McKitty’s fundamentalist Christian faith.
“If you touch her, she still moves,” McKitty’s father told reporters last week. “As far as we’re concerned, she’s never stopped being alive.”
I don’t know what McKitty’s young daughter thinks, or if she’s been at her mother’s bedside. But unfortunately, I know from experience that patients on ventilators can be just as warm to the touch as any fully functioning human (sometimes more so), and their faces can look as they always have, even peaceful or placid or pink-cheeked. It’s easy to imagine a child believing — even knowing — that a parent in this state is still living. Especially when the parent still moves her limbs, as McKitty does.
The second right answer about McKitty is the one doctors have provided, which is that she is brain-dead.
It has been more than nine months since doctors declared McKitty “dead by neurological criteria” — nine months since a death certificate was issued in her name. In those nine months, there has been no credible medical indication that any mistake was made in the initial determination. Objective wellestablished tests show there is no blood flow to McKitty’s brain. Her movements can be explained as originating in the spinal cord — nerves causing muscles to move or jerk. Reflexes. The damage to her brain is irreversible. She is not in a persistent vegetative state like Terri Schiavo, Nancy Cruzan and Karen Quinlan were when heavily publicized ethical and legal controversies arose over their respective “rightto-die” cases. Those three women were still breathing on their own and showing regular sleep patterns. The same is not true of Taquisha McKitty.
It is because I believe both McKitty’s family and the doctors to be right that I don’t envy Ontario Supreme Court Justice Lucille Shaw. She is the judge who had to decide on the family’s request for an order that McKitty be declared alive and kept on life support. The case is called McKitty vs. Hayani — it’s literally a legal action undertaken by the patient (through her family acting as substitute decision makers) against her doctor (Dr. Omar Hayani, McKitty’s treating physician) and hospital. As such, both sides couldn’t win.
And so they didn’t. Judge Shaw ruled against the McKitty family. Her decision noted that Ontario doesn’t have a statutory definition of death, so it must rely solely on the doctors’ determination.
Death is a finding of fact, Judge Shaw wrote. “To import subjectivity to the definition of death would result in a lack of objectivity, certainty and clarity.”
It’s probably the right legal decision. It’s certainly the most practical one.
But it inevitably leaves out so much.
For most of us, death is anything but a finding of fact because death means more than the expiration of a physical body (and for some of us, less).
We might see it as a permanent ending, or we might view it as the beginning of consciousness’s next journey. Eternal oblivion? Reincarnation? Heaven or hell? When we have so little consensus about what happens when we die, it’s no wonder that exactly when death occurs is not a straightforward question either.
Judge Shaw’s decision said that ultimately, it’s the legislature, and not the courts, that should be doing the social policy analysis and making the choices about what defines death and what medical protocol follows from that definition.
Maybe so, though I’d counter that courts are in a better place than legislatures to enforce individual rights that make things difficult, unpleasant and/or expensive for society as a whole.
It would certainly be satisfying if we could see our laws tweaked to allow for end-oflife considerations beyond the physical state of a brain stem, though I confess I don’t know how that could be accomplished.
It’s going to be hard for doctors to practise evidencebased medicine if we expect them to issue death certificates when, and only when, a person’s soul has departed his body. At the same time, there’s something soul-crushing about reading Judge Shaw’s completely correct analysis that defining death by the cessation of the heartbeat (as opposed to the irreversible cessation of brain function) might have “significant financial impact” on our health-care system.
In Taquisha McKitty’s case, at least, we have another month before we know the final legal word. Her family has been given 30 days to appeal Judge Shaw’s decision. And though the decision does seem sound, there’s a tautological aspect to it — the conclusion that McKitty’s Charter rights don’t have to be considered when deciding whether or not it’s constitutional to remove her life support because she has no Charter rights because she’s already dead. Could there be seeds for an effective challenge there?
Regardless, for most of us, the legal definition of death will never do much to inform our fears or hopes for the end of life anyway. Exactly what death is will remain a question with many right answers.