Update, May 14, 2 p.m.: Late on Friday, Judge Mueller denied the application for an injunction. The parents wanted an injunction in place until they could find another hospital to take the infant. A temporary stay remains in place until next Friday. Lawyers for the parents will file an appeal with the 9th Circuit Monday.Parents' attorney Alexandra Snyder said the couple are disappointed but determined to fight on.
A federal judge is expected to deliver a written ruling Friday on whether an infant declared brain-dead should be kept on a life-support machine until he can be transferred to another hospital.
The parents of two-year-old Israel Stinson do not believe he is dead, and say he has responded to voice and touch since being declared brain dead more than a month ago.
Jonee Fonseca and Nate Stinson, of Vaccaville, California, have asked for an injunction while they organize a transfer for their son, possibly to New Jersey, the only state in the nation that allows a religious objection to a declaration of death.
In her federal lawsuit seeking the injunction, Fonseca disputed the determination of two doctors at Kaiser Medical Center in Roseville, Calif., and one outside physician, that the infant was brain dead. She "believes in the healing power of God,” according to the lawsuit.
In a statement issued Wednesday, Fonseca and Stinson said: “The best hope for Israel is to be transferred to another hospital that will provide Israel with nutrition and with a breathing tube.”
They also said that three weeks ago, Israel started moving his head and upper body in response to our voice and touch. They say there is video of Stinson moving his upper body in response to her voice and touch.
“He has kicked his legs. And he has taken some breaths on his own "over" or in addition to the ventilator,” the statement read.
Israel was initially treated in UC Davis Medical Center after suffering an asthma attack on April 2.
There were complications, as yet unreported with any specificity, and the infant stopped breathing. He was placed on a ventilator. He was later transferred to Kaiser Medical Center, where doctors determined he was brain dead and that his life support machine should be turned off.
If the parents do manage to get the injunction, and are able to fund a move to New Jersey, it will mirror the case of 13-year-old Oakland teenager, Jahi McMath.
Two years ago, following a tonsillectomy, she began to hemorrhage blood and became unconscious. She was declared brain dead and a death certificate was issued.
Her parents refused to accept the findings, and moved her to New Jersey. She now resides, on a life support machine, in an apartment in the state. Her parents are attempting to void the death certificate so they can return to California.
Attorneys for California and Alameda County asked a federal judge on Thursday to dismiss the action filed by Israel's parents, arguing it should be heard in state court.
Both the Stinson and McMath cases are supported legally by a pro-life group, the Life Legal Defense Foundation.
A hearing was held Wednesday on the Stinson case, and U.S. District Judge Kimberly Mueller promised a written judgment Friday.
Fonseca, in her lawsuit, claims Kaiser violated a federal law requiring hospitals to stabilize and treat emergency room patients, and that its doctors wrongly declared her child brain-dead.
The federal Emergency Medical Treatment and Labor Act (EMTALA) states that emergency care must be provided to patients arriving at any hospital.
Kaiser’s attorney, Jason Curliano, told the court the hospital complied with the law as it provided life-saving care to the child for nearly a month. This despite doctors confirming, within days of arriving, that the child was permanently brain dead.
"Kaiser's done nothing wrong. We've done everything right," Curliano said. "We had two physicians perform tests and they came to the same unfortunate conclusion." An outside physician came to the same conclusion.
Fonseca has been unable to find a permanent site for Stinson since she filed the lawsuit on April 28. A temporary restraining order forcing Kaiser to keep Stinson on life support is in place while the challenge is heard in Federal Court.
If Fonseca's motion is declined, her attorney, Kevin Snider, said she would immediately petition for a stay of Mueller's decision and appeal to the Ninth Circuit.
Chris Palkowski, chief of staff at Kaiser Permanente Roseville Medical Center, said Kaiser will continue to comply with court orders.
"Our hearts go out to this family as they cope with the irreversible brain death of their son, and we continue to offer our support and compassion to them," Palkowski said in a statement to Courthouse News, a wire service that covered the court hearing.
The cases of Israel Stinson and Jahi McMath echo to a degree previous, highly charged, cases that involved a debate over when a person's life support should be terminated.
Terri Schiavo, Nancy Cruzan, and Karen Quinlan are the most famous cases, Each were kept alive -- Schiavo for 15 years, Cruzan for eight years and Quinlan for 10 years -- despite all being in a permanent vegetative state.
The families of Cruzan and Quinlan both wanted the right to remove the feeding tubes keeping the women alive. The Schiavo case pitted her husband, who wanted his wife to be allowed to die, against her parents.
In all the cases, as in Stinson and McMath, right-to-life groups were vocal in their campaign to keep them alive.