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Brain DeathBrain Death: Legal Duties to Accommodate: Legal Duties to Accommodate Religious Objections FREE TO VIEW

Thaddeus Mason Pope, JD, PhD
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From Hamline University School of Law.

CORRESPONDENCE TO: Thaddeus Mason Pope, JD, PhD, Hamline University School of Law, 1536 Hewitt Ave, Saint Paul, MN 55104; e-mail: tpope01@hamline.edu


FINANCIAL/NONFINANCIAL DISCLOSURES: The author has reported to CHEST that no potential conflicts of interest exist with any companies/organizations whose products or services may be discussed in this article.

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Chest. 2015;148(2):e69. doi:10.1378/chest.15-0973
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To the Editor:

I read with great interest the recent article by Luce1 in CHEST (April 2015). Luce provides an informed and useful summary of the ethical and legal issues that arise in the growing number of disputes over the determination of death by neurologic criteria (DDNC) or “brain death.” I write to clarify three points in this legal landscape.

First, Luce1 states that New York allows families to reject the concept of determining death entirely by neurologic criteria. This is incorrect. Yes, in 1986, New York considered legislation that would have permitted families to reject DDNC. This legislation would have carved out a religious “exception,” such as New Jersey later did in 1991. But the New York legislation failed. Instead, the New York Department of Health promulgated regulations mandating hospitals to provide only “reasonable accommodation” of religious and moral objections.

In contrast to Luce’s characterization, asserting a moral or religious objection to DDNC in New York does not affect the individual’s status as dead (as it does in New Jersey). Instead, it changes only the hospital’s “treatment” duties after DDNC.2 The New York regulations require a definite and limited accommodation, not an indefinite one such as in New Jersey. Indeed, the New York regulations have been interpreted to require hospitals to continue physiologic support for only 24 to 72 h after DDNC.3

Second, Luce1 omits mention of Illinois as the third state that mandates hospitals to reasonably accommodate religious objections. Like similar laws in California and New York, Illinois requires that every hospital “adopt policies and procedures to allow health care professionals, in documenting a patient’s time of death at the hospital, to take into account the patient’s religious beliefs concerning the patient’s time of death.”4

Third, Luce1 cogently argues against adopting a New Jersey-type “exception” law that prohibits physicians from applying DDNC to religious objectors. But it is far easier to defend “reasonable accommodation” laws such as those in California, Illinois, and New York. Hospitals in these states have not reported that compliance is burdensome. Indeed, the burden of extending such a mandate to other states would be minimal. The duration of accommodation would be limited to just a few hours or days. And these disputes would be rare given the relatively small US population with religious objections (Japanese Shinto, Orthodox Jews, Buddhists, Muslims, and Native Americans).5 Furthermore, most US hospitals already typically offer such accommodation. Consequently, extending a “reasonable accommodation” mandate would simply codify and clarify the prevailing standard of care.

References

Luce JM. The uncommon case of Jahi McMath. Chest. 2015;147(4):1144-1151. [CrossRef] [PubMed]
 
Burkle CM, Pope TM. Brain death: legal obligations and the courts. Semin Neurol. 2015;35(2):174-179. [CrossRef] [PubMed]
 
Pope TM. Legal briefing: brain death and total brain failure. J Clin Ethics. 2014;25(3):245-257. [PubMed]
 
210 Illinois Compiled Statutes 85/6.24.
 
Pew Forum on Religion and Public Life. US Religious Landscape Survey: Religious Affiliation: Diverse and Dynamic. Washington, DC: Pew Research Center; 2008.
 

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References

Luce JM. The uncommon case of Jahi McMath. Chest. 2015;147(4):1144-1151. [CrossRef] [PubMed]
 
Burkle CM, Pope TM. Brain death: legal obligations and the courts. Semin Neurol. 2015;35(2):174-179. [CrossRef] [PubMed]
 
Pope TM. Legal briefing: brain death and total brain failure. J Clin Ethics. 2014;25(3):245-257. [PubMed]
 
210 Illinois Compiled Statutes 85/6.24.
 
Pew Forum on Religion and Public Life. US Religious Landscape Survey: Religious Affiliation: Diverse and Dynamic. Washington, DC: Pew Research Center; 2008.
 
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