The issue of a clear legal definition of death resurfaced after the brain-death certification process in Kerala was challenged in the Kerala High Court. The State Government set up an expert committee to draw up Standard Operating Procedures for more fool-proof measures for the same, to rule out any possibilities of manipulation or coercion to make organs available for transplant. However, for all the advances in medicine, there is a lack of clarity, both medically and ethically about assessing when the moment of death has occurred.
As a result of certain actual legal controversies, the relevance of defining the moment of death is no longer a mere theoretical interest and has assumed considerable practical importance. To illustrate, it may be useful to cite a few situations wherein legal significance would come to be attached to the moment of death.
The law has a well-established doctrine that a Will speaks from the moment of death and not earlier, nor later. If a person is regarded as dead in the eyes of the law, then, from that moment, it is the executor appointed under the Will who takes charge of his assets and who can exercise certain powers regarding the same. Again, if two or more persons have died and one has made a Will in favor of the other, then it becomes necessary to determine who dies first. If the beneficiary under the Will is, on facts, held to have died first, then obviously he or she cannot take what is assigned to them under the Will.
- Transplantation of Organs
Organs of the body (with the exception of kidney and liver) cannot be transplanted from the body of a live person. Death must have occurred, if transplantation is to be carried out. This is how the practical importance of defining the moment of death arises-though the importance of defining the moment of death is not confined to the act of transplantation.
Historically, death was noted to occur when the heart stopped pumping blood. Death was identified by cardiorespiratory failure. The arrival of the modern ventilator upended this simple understanding of the end of life.
From the legal perspective, it is important to determine whether a person can be declared dead if the heart and lungs continue to function even after brain death? Two Central legislations in India give different answers.
‘Transplantation of Human Organs Act, 1994’ defines a deceased person as one “in whom permanent disappearance of all evidence of life occurs, by reason of brain stem death or in a cardiopulmonary sense, at any time after live birth has taken place”. Where the Transplantation of Human Organs Act acknowledges Brain Stem death, The Registration of Birth and Death Act, 1969, excludes the diagnosis of brain death. Section 2(b) of the Registration of Birth and Death Act defines death as the “permanent disappearance of all evidence of life at any time after live-birth has taken place”. By its definition, a patient on ventilator support may not necessarily be dead.
In India, it is the legislation on transplantation of organs which contains a clear definition of death. If the position regarding the criterion for death in a context other than transplantation is left ambiguous by a statute, then what is the principle governing the definition of the moment of death in other cases? The law would still remain ambiguous for other situations; while the Indian Penal Code under Section 46 defines “death” as “death of a human being (unless context otherwise requires)”, the legal inconsistency occurs in light of other Indian legislation, such as Section 2 (b) of the Registration of Birth and Death Act, 1969. As things exist today, if a patient is not donating organs, for it to be not considered murder or abetment to suicide under the law, a physician must wait for the patient’s heart and respiratory system to cease to function before they can be pronounced dead. While the regulations of the Medical Council of India provide for a consultation with a council consisting of the chief medical officer and another doctor nominated by him apart from the doctor in-charge of the patient, it does not absolve doctors of liability, nor does it add any clarity.
Therefore, a clear and uniform legal definition of death in India will go a long way, not only in creating better trust in doctors but also in resolving various legal issues that arise from the ambiguity surrounding it.
- Transplantation of Human Organs Act, 1994
- Registration of Birth and Death Act, 1969
- Indian Penal Code, 1860