This is a rush transcript from "America's Election HQ," November 11, 2008. This copy may not be in its final form and may be updated.
MARTHA MACCALLUM, HOST: It's a very emotional story: A young boy at the center of a legal and ethical and religious battle right now. Twelve-year-old Motl Brody underwent surgery to remove a brain tumor in June. He has been in a coma ever since June.
Last week, doctors at the Children's National Medical Center in Washington pronounced him brain dead. But his Orthodox Jewish parents say that according their religion, death only occurs when the heart and lungs stop functioning. And until then, they believe they must everything in their power to keep him alive. This case continues in a Washington, D.C. courtroom this week.
Still with me is FOX News legal analyst and criminal defense attorney, Mercedes Colwin. We're also joined by Arthur Caplan who is a professor of bioethics at the University of Pennsylvania. Welcome. Good to have you here.
ARTHUR CAPLAN, PROFESSOR OF BIOETHICS, UNIVERSITY OF PENNSYLVANIA: Hi, Martha.
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MACCALLUM: Hi, there, Dr. Caplan. Talk to me a little bit about this case. What do you think the ethical issues are, you know, beyond what I have just laid out?
CAPLAN: Well, the key question is, does the hospital have an obligation to listen to parents — grieving parents. You know, it's a 12-year-old — terrible situation to be in to try and accept that death.
How far do they go, even knowing that this young boy has died, to go with the individual wishes of these parents to see their religious ideas about when death comes put into practice? It is one thing to say legally, they're within their rights to stop caring for the young Brody boy. But at the same time, they're tying up resources, they're tying up doctors, the meter is running on the costs.
CAPLAN: Insurance isn't going to pay for this. So how far do they go and what's their obligation?
MACCALLUM: So can the hospital say, you know, we can't do anymore for him here. You need to move him to a private facility. If you want to keep him on these machines, that's your option?
CAPLAN: Absolutely yes and it often is put that way. They didn't choose to go that way in this case. They decided to go to court to get a judicial sanction, if you will, for stopping.
But many times in the U.S., we get in situations where the doctors simply say, we're stopping and if you want to go home or try to manage this elsewhere, that's up to you, but we're ending this.
MACCALLUM: All right. Mercedes, talk to me about the legal implications here. I mean, basically the hospital is stepping in and saying we believe that we should pull the plug on your child. And the parents say, no, our religion believes heart pumping, lungs working, our child is alive.
MERCEDES COLWIN, FOX NEWS LEGAL ANALYST: That's exactly right, Martha. What the hospital has done is saying, we're going to step in and be the guardian for this child, because there is no conceivable way that this 12-year-old child wants to live like this, if, in fact, he's still living.
MACCALLUM: But we don't know that. I mean., you know, this is where it gets tricky.
MACCALLUM: Who knows what this child wants, who is 12 years old.
COLWIN: Especially — you see a lot of these ones, especially with adults. There are lots health proxies. There are documents that...
COLWIN: ... where adults will say, I don't want to live on life support.
COLWIN: That's fine. But with a 12-year-old, the hospital will step in and say, look, we're not required to provide these accommodations. What I'm surprised is that the parents have not done and said, this is our religion. You have to accommodate us under the local laws of this nation. This is our religion. You have to accommodate us for our religious beliefs.
The hospital step in and say, no, we're not going to spend hundreds of thousands of dollars if not millions to sustain this child's life.
MACCALLUM: But who's paying?
COLWIN: Because under the law, if they do go this route and they force the hospital to make this accommodation, the hospital would be required to, following a judgment by the court.
MACCALLUM: Why does the hospital have to pay for it? I don't understand that. Why doesn't the family and the family's insurance company have to pay for it?
CAPLAN: Martha, the insurance — we may get into an argument about what the hospital has to do, what the definition of death is, but the insurance company, as soon as that death was pronounced, then, they shut off the funds.
MACCALLUM: They're out. They're done. Yes.
CAPLAN: They're gone.
CAPLAN: So in another sense, you might say, we don't know what this young boy would have wanted. But the hospital's position is, it doesn't matter. They don't treat the dead. That's a bright line that they don't cross. You don't accommodate anybody's spiritual or religious or personal beliefs about this.
CAPLAN: They have the law behind them. All states have adopted a Uniform Determination of Death Act. And you don't want a situation where people start coming in and saying, I am going to wait for my dead relative to resurrect. I'm going to wait for the spirits to come back and somehow revivify this person.
And I happen to be sympathetic on this one to the hospital. I think they're well within their rights to say, we can argue about permanent vegetative state. We can argue about coma. But when you're dead, that is the point at which what the hospital's duty is over.
MACCALLUM: Right. And a hospital is basically, you know — it's a company, an entity.
MACCALLUM: And they have their laws in what they determine to be a death in this case. I mean, the only outcome I can imagine is that the parents will have to take this child to a private facility if they want to continue his life support.
COLWIN: Exactly right, Martha. There's no way they're going to be able to require the hospital to continue the treatment of this child. At some point, they're going to have to stop and remove the child.
MACCALLUM: A terribly sad story and an unbelievable — an awful decision for any family and any hospital to be put in a position to have to make.
Art Caplan and Mercedes Colwin, thank you very much.
COLWIN: Thanks, Martha.
CAPLAN: Thank you.
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