The determination of death by neurological criteria - “brain death” - has long been legally established as death in all U.S. jurisdictions. Moreover, the consequences of determining brain death have been clear. Except for organ donation and in a few rare and narrow cases (such as pregnancy in some states), clinicians withdraw physiological support shortly after determining brain death. Until recently, there has been almost zero action in U.S. legislatures, courts, or agencies either to eliminate or to change the legal status of brain death. Despite ongoing academic debates, the law concerning brain death has remained stable for decades.
However, since the Jahi McMath case in 2013, this legal certainty has been increasingly challenged. The persistent salience of this case has spurred other families to challenge other clinicians. Many of these cases have been litigated in the spotlight of judicial and media scrutiny, further exposing long‐standing yet little‐known fractures in brain death's biological and conceptual foundations. Admittedly, some families have always had concerns with brain death, whether emotional, biological, or psychological. What has changed over the past nine years is that more families have been emboldened to translate their concerns into legal claims and legislative reform.