McMath attorney: Jahi's family aren't fools; they deserve better than ignorant attacks

Brian Franklin, left, attorney for Children's Hospital Oakland, and Christopher Dolan, attorney for Nailah Winkfield, mother of Jahi McMath, speaks during a court hearing to discuss the treatment of Winkfield's daughter in Oakland. Among those in the courtroom were Martin Winkfield and wife Nailah Winkfield, behind the attorneys.

By Christopher Dolan

Jan. 21, 2014 12 AM PT

I am the attorney who answered a call for help from Jahi McMath’s family in December. I have represented them for free — starting 10 hours before the first order to turn off Jahi’s ventilator at Children’s Hospital Oakland — as they have fought for their right to make medical decisions for a beloved child.

Despite the incendiary, hateful public rhetoric that has surrounded this case, I believe that self-interest alone should lead most Americans to thank Nailah Winkfield, Jahi’s anguished mother, for her courage.

It has been amazing to see how many people think they have a right to an opinion about this child, this mother, this family and the issues in this case. Self-righteous commenters and commentators who have no firsthand knowledge of the facts or the people involved pretend they can somehow know not only what’s best for Jahi but what’s best for society in such situations. They take it upon themselves to proclaim what will relieve or prolong the family’s suffering, what will desecrate Jahi or honor her, and they feel justified in sharing it with the world in mean-spirited terms.

For the most part, those who have attacked Jahi’s family argue these simplistic, uninformed points: The family is either stupid, misled by their lawyer or trying to exploit the system. Why can’t they simply accept the doctors’ decrees? Why should they be different?

What happened to Jahi at Children’s Hospital Oakland will most likely be a matter of litigation. But if you were Jahi’s mother, would you want the doctors and hospital authorities you believed had contributed to — or even caused — your child to be declared “brain dead” making final decisions about her?

Over my legal objections, Nailah Winkfield was cruelly made to go to the Alameda County Registrar of Births and Death to get a “death certificate” in order to move Jahi out of the hospital to a site where she could receive care. It required the intervention of the coroner because, at first, even the official at the agency didn’t want to issue the certificate — after all, Jahi was connected to a ventilator and her heart was still beating.

Those who condemn Jahi’s family appear to have no idea that doctor-decreed “brain death” is not sufficient as a declaration of death everywhere in the United States.

In New Jersey and New York, for example, there is accommodation for those who do not accept “brain death” as the appropriate criterion. According to New Jersey law, “the death of an individual shall not be declared upon the basis of neurological criteria … when such a declaration would violate the personal religious beliefs or moral convictions of that individual.” The McMath family’s position isn’t ridiculous or unheard of. There would have been no legal battle if Jahi had had her tonsils out in New Jersey.

And the rush to abrogate Nailah and Jahi’s constitutional rights is as reprehensible as the widespread ignorance about the limits of “brain death.” These rights include the 1st Amendment right to freedom of expression of religion, and the 4th and 14th amendment rights to privacy and personal liberty.

Those who attack Nailah’s decision and who are “pro-choice” on the issue of abortion should think hard about the fallout from their insistence that the family’s personal and private decision about when life ends can and should be overridden by doctors or the state. The same rights that support the choice made by Nailah also support contraceptive rights and abortion rights.

Nailah has eloquently made her own case: “That’s my daughter; I love her,” she told me. “As long as she is fighting, and God has her heart beating, I will fight with and for her. She needs some time, God needs some time; I’ve seen what medicine has done, now I want to see what God can do.”

Nailah’s fight is the fight of a loving mother for her child. It is a fight for privacy in the making of a medical decision. It is a fight for a strongly held belief in the miracles and mercy promised by the Bible.

If any among her critics share her faith, how could they call her ignorant or ridiculous for actually believing in the power and mercy of God? If they would have made a different decision, then right-on, they are Americans and they get to make their own choice.

Jahi McMath’s family are brave, loving, honorable hardworking people. They are not fools. They know the odds. They want time, free from the threats of the hospital to pull the plug. They want Jahi to be somewhere where people care for her and do not call her “the body.”

Trust me, they will happily disappear from the public spotlight — if you will let them.

Christopher Dolan is an attorney in private practice in San Francisco and Oakland.