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Federal Appeals Court Agrees with California, Compassion & Choices that ‘Brain Death’ is ‘Death’

Compassion & Choices Filed Brief in Lawsuit Challenging L.A. Hospital’s Decision to Stop Artificial Life Support for Legally Dead Child

The U.S. Court of Appeals for the Ninth Circuit Thursday affirmed the lower court’s dismissal of a lawsuit that sought to undermine California’s legal definition of ‘brain death’ as ‘death.’ In 2018, Compassion & Choices filed an amicus brief in the case, Jonee Fonseca et al v. Karen Smith et al, defending California’s legal definition of brain death as death, which was challenged because of a decision by Children’s Hospital of Los Angeles to stop artificial life support for a brain dead boy. 

The deceased boy’s mother and a group opposed to medical aid in dying and reproductive rights filed the lawsuit in federal appeals court in October 2017. A federal judge previously dismissed the lawsuit in March 2017 filed on behalf of Israel Stinson’s mother, Jonee Fonseca, and Life Legal Defense Foundation, which is represented by the Pacific Justice Institute. The plaintiffs claim the state’s health department director, Karen Smith, M.D., should have prevented the hospital from discontinuing Israel’s artificial life support in August 2016, even though a state court order declared he was legally dead, so his artificial life support should end. 

The Ninth Circuit’s unpublished opinion upholds the lower court’s conclusion that the plaintiffs lack legal standing “requirements of an injury in fact, causation, redressability” to maintain their challenge to California’s Uniform Determination of Death Act (CUDDA). Theoretically, the plaintiffs could appeal this ruling to the U.S. Supreme Court, but historically the nation’s highest court rarely considers lower court decisions that are unpublished.

In Ninth Circuit’s ruling, the court concluded: “California has defined brain death as ‘death’ since 1974…eight years before CUDDA was adopted in 1982. Thus, doctors may make exactly the same medical decisions regarding the definition of death without CUDDA” (see page 5 of ruling here: https://compassionandchoices.org/wp-content/uploads/2020-09-17-Dkt.-52-1-Fonseca-v.-Smith-CA9-Mem-Dispo-Affirming-Jmt-wm.pdf).

Compassion & Choices’ amicus brief urged the appeals court to uphold the lower court’s dismissal and concluded that: “[t]he modern consensus that brain death is actual death derived from years of painstaking study and recommendations by dedicated medical and legal researchers … with joint support from the American Medical Association, the American Bar Association and the National Conference of Commissioners on Uniform State Laws.” 

“We are pleased the appellate court upheld the lower court’s dismissal, and the widely accepted of legal standard that brain death is death remains the law in California,” said amicus brief coauthor Kevin Díaz, Esq., national director of legal advocacy for Compassion & Choices

“This definition and accepted medical standard that brain death constitutes death is the result of years of scientific inquiry and thoughtful, balanced consideration by the California Legislature and drafters of the model code on which California’s Uniform Determination of Death Act is based,” said brief co-author Josephine Mason Petrick, San Francisco-based Senior Counsel at Hanson Bridgett LLP’s Appellate Practice Group. 

The development of technologies that can artificially sustain a heartbeat and respiratory function have the potential to ‘mask’ that death has already occurred,” said brief co-author Jon B. Eisenberg, Esq., of Healdsburg (Sonoma County). 


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