Brain Dead

Is a brain dead person dead? The answer is both yes and no and depends upon under which Act you are looking and what actions your legal heirs/family members take once you are declared brain dead. How is it possible that the answer is both yes and no? The dilemma lies in the way the death is defined in the two acts, that is Registration of Birth and Death Act 1969 and the Transplantation of Human Organs Act 1994 and this puts the medical fraternity in dilemma and here again they are faced by devil’s choice, unless the legal heirs/family members help them out.

Death is defined in the Registration of Birth and Death (RBDA) Act 1969 as “The permanent disappearance of all evidence of life after live birth has taken place”. The mention of the word all, evidence of life excludes brain death. Therefore even if the doctors issue a death certificate stating brain death as a cause, which normally they will not do, then the death cannot be registered as death under this act. Hence no death certificate can be issued, implying that even though the person is dead and cremated but he is still alive legally.

Brain dead has only been defined in the Transplantation of Human Organs (THO) act 1994 only in connection with human organ donation and has led to the certification being mostly viewed as a procedure. If the legal heirs refuse to donate the organs, this applies even though you may have donated the organs legally as without their permission the donation is not valid unless you have made a living will or what is called Advance Declaration by the Supreme Court. The procedure for the execution of this advance declaration is very lengthy and cumbersome with the judicial magistrate first class being the custodian and executor of the living will and only after recommendation of a medical board as given in the Supreme Court judgement. The act also is not clear as to what will happen if family refuses to donate organs and in that eventuality the doctors will also refuse to switch off the ventilator and support systems fearing legal implications and the cost of treatment will keep rising till death takes place and may lead to a huge bill. Death in THO act is defined as “Permanent disappearance of all evidence of life by reason of brain stem death or in a cardio pulmonary sense at any time after live birth has taken place”. Here brain stem death is defined to mean death and this act will apply only if the legal heirs/family members agree to donate the organs.

Medical fraternity is of the opinion that it is futile intervention once diagnosis of brain dead is made. But it is challenging for a doctor and the family to decide whether to continue life support or not. This is what we often refer to as the devil’s choice, the doctors fearing legal implication and the family worried about the rising cost per day and the bad mouthing by the relatives and friends and social humiliation. The gap between brain death and cardiac death may be days. There is a 10 step procedure to be followed for certifications if the THO act becomes applicable and only if family agrees to donate organs. Conditions are laid down as to when and how the brain death can be declared and the process is to be repeated after an interval of six hours.

Therefore what is needed is that the  procedure needs to be specified under the RBDA 1966 to include brain death as a cause of death along with the procedure to constitute a medical board which will examine the case and conduct tests which can be repeated after 6 hours or as specified and the board will have the power to declare the person brain dead even though the family members have not agreed for organ donation but are unwilling to continue with the life support system due to any reason whatsoever.