Some hold that the cessation of a heart beats marks death but others argue hold that the brain’s dis-functionality constitutes death.
There is hence no clearly accepted point where a person can be declared dead, thereby mandating a legal definition for what constitutes death.
What has triggered the current debate?
A while ago, Kerala government issued protocols to confirm brain death cases with the intention of making organ transplantation more transparent.
This has brought to the fore, the lack of clarity, medically and ethically, about assessing when the moment of death has occurred.
India needs clear standard operating procedures as well as a legal definition of death in order to ensure ethical conformity questions of life and death.
How did death become a grey concept?
Historically, life was strongly linked to heart pumping blood and death was consequently identified by cardio-respiratory failure.
Doctors would feel for a pulse, check for breath, and sometimes even hold a mirror before the nose to test for condensation.
But the arrival of the modern ventilator upended the metrics of life and as intensive care medicine took shape, defining death became more complex.
Advances in medi-care also furthered neurosciences and terms like “death of the nervous system” and “irreversible coma” are no longer valid.
Hence, defining life and death has now gone beyond the mere factual bodily indicators and has encompassed the domain ethics and philosophy.
What is the current legal status of death in India?
Presently, in India, two Acts give different answers.
Brainstem death - This (different from brain death) is acknowledged in the Transplantation of Human Organs Act, 1994.
According to this, a deceased person is one “in whom permanent disappearance of all evidence of life occurs”.
It encompasses in its ambit both “brain stem death” and “cardio-pulmonary” cessation, at any time after live birth has taken place.
Record Keeping Act - “Registration of Birth and Death Act, 1969” excludes the diagnosis of brain death and covers only cardio-respiratory aspects of life.
Notably, whilea patient on ventilator support is not deemed dead as per this act although he might be brain dead.
How is the ambiguity on life and death playing out elsewhere?
In the U.S., the case of Jahi McMath who was declared brain dead at 13 has fuelled the debate on what constitutes death.
Notably, she is now 17 and survives on life support, and even attained puberty in the 4 years after she was declared brain dead.
Experts - Many opine that although legal definitions typically indent to define a bright border between life and death, biology of life is a lot more fluid.
Further, diagnosis of brain death functions is a self-fulfilling prophecy as once the ventilators are dis-connected, cardio-respiratory death follows invariably.
While biology and law function differently, clear standard operating procedures and a legal definition would nonetheless help in functionality.
