Custodial Nightmare!?!

There is no "right or wrong" answer...

There are two sets of parents, we will refer to them as parents (A) and parents (b)

Parents (A) have a 8 year old son, Parents (B) also have an 8 year old son...

Parents (A) son gets into a car accident, completely paralyzed from the neck down and his face is unrecognizable, it will be impossible to survive without constant life support... But his brain is fully functional... He is on the donor list...

Parents (B) son gets into a car accident and is wearing his seatbelt, when his head hits the airbag his brain suffers too much of a blow and dies instantly... His body and face survives flawless... He is on the donor list

The hospital performs a radical procedure (without consent of either parents) and places the Brain from parents (A) son into the perfect body of parents (B) son...

You know have 1 child, body of parent (B) son but the perfect working mind of parent (A) son...

The child is a minor, which set of parents does he go home to? Why?

Keep in mind even though we associate the mind with who we are, legally it is an organ and 95% of parents son (B) is still intact and functional... If it were just a heart, this would not even be a question!

UPDATE: Why will nobody just pick a side and defend it? You can argue either side... Work on your debating skills! There is no right or wrong, just pick a side (NO JOINT CUSTODY) and tell us why you think that!

I came up with this question when I was in school and it was an awesome conversation/debate in a class... A lot of fun... JUST HAVE FUN WITH IT!

Pretend you are Parents (A) or Parents (B)... you WANT your son back... You are willing to fight for it, you live on 500 miles apart and joint custody won't work... What would you argue to get your kid back?

[edit on 4-3-2008 by sparda4355]

Wow, nightmare is right. I have to get back to you on this, it requires a little thought.

Skip

I don't think he should go home with either one, as he was too young to be driving in the first place. And, as is supported by all US laws, you must be at LEAST 15 to be driving with a permit.

To me, and the reason why I say that he doesn't belong to either set of parents, is because neither set of them are responsible enough to keep their 8 year old sons from doing something so insane as getting into a car and driving it. How are we assured that if he does go home with one or the other that he won't go off and do this kind of thing again?

TheBorg

maybe they would get some sort of shared custody. Both the bodies parents and mind's parents share equal time. Interesting thought.
Perhaps they can already do that and they become lab rats or super soldiers. j/k

reply to post by TheBorg


First of all... never said he was driving! Just said he got into a car accident! Parents could have been driving, uncles, whoever...

Second... that means you assumed he was driving...

Third... you probably already know that when you assume you make an a$$ out of u and me!

reply to post by sparda4355


By making the following statements:

Parents (A) son gets into a car accident, completely paralyzed from the neck down and his face is unrecognizable, it will be impossible to survive without constant life support... But his brain is fully functional... He is on the donor list...

Parents (B) son gets into a car accident and is wearing his seatbelt, when his head hits the airbag his brain suffers too much of a blow and dies instantly... His body and face survives flawless... He is on the donor list

you separate the parents from the children. By saying that Parent A and Parent B's sons both get into accidents, you exclude the parents, which implies, whether intended or not, that the children were the ones driving.

If I misunderstood the analogy, I do sincerely apologize. I just saw the wording as suggestive to the angle that I took with it.

Again, all apologies for any misunderstanding.

TheBorg

Based on some rather long stretches of current legal precedent, the (A) family is going to have custody of the child (assuming they actually want it), and both families are going to be getting large settlement checks from the hospital, and a lot of doctors are going to be spending a lot of time as guests of their Rich Uncle Sam.

Here's my reasoning:
Most states define 'death' in terms of brain death, in one form or another. Child B did, indeed, suffer brain death (death by massive head trauma is stipulated in your scenario). Therefore, B is legally dead, even though his body is relatively unscathed. Child A, while suffering extensive physical trauma, did not suffer brain death (also stipulated in the scenario), and therefore, never legally died. The surgical procedure is (at least from a legal perspective) no different than a heart transplant....the family of an organ donor has no legal claim to custody of the recipient of the organ. In this case, the 'organ' was the full body of child B.

The hospital and the doctors involved are in a world of deep hurt, since they've performed surgical procedures without consent of the patients (or their guardians). That's a fast 'adios' to your license to practice medicine, probable jail time, and the mind boggles at the size of the punitive damage awards some jury is going to throw around.

Years ago, there was a Lifetime movie that covered this exact topic, except it was the wives of the two families that had the issue. This brings up an interesting moral dilema, and not sure how it could be handled to everyones satisfaction.

If the surviving brain retains it's memories, then the 'identity' of the person should be the one that the brain 'sees' itself as.......or child A, and probably would then 'feel' that he belongs with parents A......it would seem that considerations for the child's feelings would carry the day.....he has already been through enough !!

Good luck, however, on straightening out the legal problems of mis-matching fingerprints or DNA. If there are siblings and/or family wealth involved, on either side.....you could be in court for years!!

reply to post by TheBorg


No problem borg... This is all in good fun... NO hard feelings and if you thought I was trying to be offensive, I appologize... just wanted to see if people would pick a side, and try to back up their side of view... It was a lot of fun last time I did this, not so much this time!

Originally posted by Brother Stormhammer
Here's my reasoning:
Most states define 'death' in terms of brain death, in one form or another. Child B did, indeed, suffer brain death (death by massive head trauma is stipulated in your scenario). Therefore, B is legally dead, even though his body is relatively unscathed. Child A, while suffering extensive physical trauma, did not suffer brain death (also stipulated in the scenario), and therefore, never legally died. The surgical procedure is (at least from a legal perspective) no different than a heart transplant....the family of an organ donor has no legal claim to custody of the recipient of the organ. In this case, the 'organ' was the full body of child B.

First of all... Thank you!

You not only answered the question (the way it was intended to be answered by picking a side and backing it up) you actually had fun with it and expanded on the legal repercussions of the medical staff evolved! Kudos to you my friend!

That being said… This debate is not over just because he has valid points, this can be argued! Does anybody want to take a stab at it? For fun?

Originally posted by frayed1
If the surviving brain retains it's memories, then the 'identity' of the person should be the one that the brain 'sees' itself as.......or child A, and probably would then 'feel' that he belongs with parents A......it would seem that considerations for the child's feelings would carry the day.....he has already been through enough !!

Again... Thank you for having fun with this... it was all intended just to make you think...

You chose to go the "best interest" rout as apposed to the legal reasoning! Great choice because the child is a minor, and mentally I would agree with you, this would be the least strain on the child involved!

Anybody want to fight for Parents (B)

If nobody does... I will take a stab at it!

Okay... Nobody has been in defense of Parents (B) so I will take a stab at it... let me know how I do!

Although as previously mentioned some states classify death as brain death... Not all states do so, and it was never specified as to which state the child was in...

Some states will allow life support to keep a brain dead patient alive as long as funds allow!

That being said, and as previously stated... an organ donar has no rights to the organ donated and your brain is in fact an organ...

It also is an organ that we truly know very little about! A lot of what is known about this brain, is still considered theory!

That being said, parents (B) son has a fully functioning body, including pumping heart, lunges, stomach, cells (filled with cell memory), and much much more! This type of procedure has never been attempted or at least successfully completed so one could argue that the body would contain enough cell memory to retrain the brain organ who Parents (B) son is... Legally Parents (B) son has never been truly classified with a TOD (time of death) and therefore is legally still alive! The brain is a single organ, nothing more, nothing less in legal terms! The brain has no rights and legally is not considered "the person"... It would come down to the finger prints, dental records, DNA, and the fact that there was no TOD... Technically speaking Parents (A) son would most likely have received a TOD when the heart was unable to be stimulated!

reply to post by frayed1



I have to agree! Its the memories, thoughts, emotions, etc... that make us human, not our outter shell. So in MY mind...child A with the new body goes back home to his parents. Parents B can be a part of his new life if they so choose, but the brain remembers Mom & Dad, not the body.

I relate it to a house fire. When a house burns to the ground the only thing families worry about are the "BRAINS" of the house..the memories and valuables (i.e. pictures, jewelry, items of family origin, keepsakes, etc..) The house itself (as painful as it is to lose) is a shell that can be rebuilt, the memories and items can't!

reply to post by sparda4355


Nah, I wasn't taking offense. I was merely defending my side. I tend to be a bit more abrasive than I'd like when I'm making points.. It's something that I'm working on. I call it "interpersonal skills".

Good thread though!!

TheBorg

reply to post by sparda4355



i think the biggest nightmare here will be the lawsuits that hospital will endure from both families.