Do We Die Twice? Paradox and Ambiguities in the Legal Determination of Brainstem Death in India - Dr Rahul Chawla and Dr Nitin Kumar Sethi

"A 65-year-old gentleman underwent a procedure for 'Brainstem death certification for the purpose of organ donation after discussion with patient's son. However, once the patient was declared as ‘brain-dead’, the son refused to sign the consent form for organ donation owing to lack of consensus between the family members. Now, what is the legal status of the patient? Is he ‘dead’ or is he ‘alive’?”

We asked this question in a recently conducted symposium in our hospital, which invited a whole range of ethical and philosophical questions. The law doesn’t count such patients as dead, even when he has been declared as brain-dead, and he would have been declared as dead legally had the consent for organ donation been signed by the family members.

Unfortunately, the law maintains silence on whether life support can be withdrawn for the patients certified as brain-dead but not undergoing organ retrieval for transplant. The paradox is: Do we die twice? First when the ‘brain’ dies, the second time when the heart dies?

With the advent of cardiopulmonary resuscitation techniques, patients with severe, irreversible brain dysfunction can be maintained on a ventilator. While these patients might turn out to be ‘brain-dead’ once the protocol for the certification is followed, there is no law that certifies them legally dead except for the purpose of organ donation and hence puts the doctors in critical position as they have to continue to the life support and medications.

While legally these patients are alive, the question remains, is the life meaningful? In a resource poor country like ours, is it justifiable to continue intensive care for an otherwise dead individual, just waiting to achieve the legal status of being ‘dead’?

While it may not matter much for the family in a government hospital, but in a private hospital where the costs of maintaining a patient in ICU is so high, it adds to an extra financial burden on the patient’s family.

Family members, not understanding the medico-legal perspectives, blame the doctors of being money minded for keeping such moribund patients in ICU for long. Ethically a doctor is supposed to give life and not take it, neither actively nor passively and removing the ventilator support from such a patient could amount to culpable homicide.

It is only the cardiopulmonary death, not the brain death, which finds mention on the death certificate and is acceptable for the purpose of cremation, burial and insurance claim settlement.

Supreme Court of India during Aruna Shanbaug versus the Union of India case concluded that Brain death can be considered as the death of a person. In India, death is defined by three different laws. Section 46 of the Indian Penal Code (IPC) defines death as ‘death of a human being unless contrary appears from the context’.

As per section 2(b) of the Registration of Birth and Death Act 1969, death is ‘the permanent disappearance of all evidence of life at any time after live-birth has taken place. As per Transplantation of Human Organs Act (THOA, 1994), death is ‘the permanent disappearance of all evidence of life by reason of brainstem death or in a cardiopulmonary sense at any time after live birth has taken’

India has huge deficiency of ventilators and ICU beds, and there is huge discrepancy in patient:ventilator ratio within the states and within the cities. It is important to realize that a ‘brain-dead’ patient who is not legally dead, is actually dead and such a patient is occupying an ICU bed that could have been given to another deserving patient that could have saved his life.

While we as health care provider cannot change the fate of the former, we can certainly improve the prognosis and reduce the chances of mortality in the latter case. Doctors around the world face such a dilemma, but their hands are tied because of the medico-legal framework and the absence of clear laws. The ambiguities in the law has been a worldwide problem.

In fact, in the United States, one can be legally dead in a state and alive in the other, which allows for a ‘brain-dead’ patient being transported to the other state so that he/she can acquire the status of being ‘alive’. This ambiguity, silence on critical clinical scenarios gives rise to various false propaganda and sensational news.

The determination of brain stem death should not be limited to and should be delinked from organ donation and SOP guidelines need to be formulated for the death certification of such patients legally.

Also, there is unmet need for training program for the doctors for reliable and precise determination of the brain stem death. Furthermore, initiatives are required to raise public awareness regarding deceased organ transplantation.

The article is jointly written by Dr Rahul Chawla and Dr Nitin Kumar Sethi

Disclaimer: The views expressed in this article are of the authors and not of Medical Dialogues. The Editorial/Content team of Medical Dialogues has not contributed to the writing/editing/packaging of this article.