Death in India is defined by two Acts—one which deals with circulatory death and the other with brain stem death. But experts are now pitching for a common law where both definitions are clearly defined to remove all confusion
By Shobha John
In India, over a lakh die of brain stem death annually. At any given time, every major city will have 8-10 brain deaths in various ICUs. Some 4-6 percent of all hospital deaths are due to brain deaths. In such a scenario, it is essential that there is clarity over what it means to be brain dead and to have laws that are crystal clear in this regard. Unfortunately, awareness about brain death is very low in India.
It was in 1994 that India passed the Transplantation of Human Organs (THO) Act which legalized brain stem death. In 1995, THO rules were laid down which described the procedure to be followed for brain death certification. Yet, brain death is not promptly declared in India due to lack of awareness and obfuscation of the legal procedures. There is reluctance even on the part of doctors to pronounce a patient brain dead.
Natural death is akin to the heart stopping irreversibly, leading to stoppage in blood circulation and death. In brain death, there is neurological death of the brain, leading to death of the rest of the body. As far as brain death is concerned, in the US, a person is certified as dead if there is complete death of the brain, in the UK, if there is brain stem death and in Australia, if it includes circulatory and brain death.
A recent convention on medicine and law organized by the Mumbai-based Institute of Medicine and Law discussed this issue. It brought together doctors, lawyers, editors of medical and law journals, academicians, representatives from hospitals and policymakers to deliberate over legal issues relating to medicine, including brain stem deaths.
As far as the law is concerned, there are two definitions of death—one in the Registration of Births and Deaths Act and the other, in THOA. The former defines “death” as “the permanent disappearance of all evidence of life at any time after live-birth has taken place”. THOA, on the other hand, 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”. Confusing?
A brain stem death patient may take two hours to 10 days to get cardio-respiratory death. Experts now want just one definition of death instead of two and a uniform death certificate that also includes brain stem death.
Currently, brain stem death is only defined in the context of organ donation. Both these definitions exclude the other. However, a brain stem death patient may take two hours to 10 days to get cardio-respiratory death. Experts now want just one definition of death instead of two and a uniform death certificate that also includes brain stem death. Therefore, they want an amendment in THOA.
Dr Sunil Shroff, managing trustee of Mohan Foundation, a Chennai-based NGO which is in the forefront of organ donation, told India Legal that his Foundation had written to the health ministry and the Rajya Sabha Standing Committee in 2010 for amendments in THOA so that there was one definition of death. “We had also put it on the agenda for discussion at a National Law Commission meeting. With two definitions, there is difficulty in withdrawing support of a brain dead person unless it is for organ donation. This results in unnecessary hospital stay, escalating bills and needless use of the ventilator when it can be put to better use,” he said.
Mahendra Bajpai, advocate, said: “We need a special law that defines death in India. The definitions in the Registration of Births and Deaths Act and THOA take us nowhere and we want brain stem death to be factored in too. Certification of brain stem deaths is usually done only for organ transplants but if a brain dead person doesn’t want his organs harvested, he can be taken home if there is a law in this regard. Why hook him to the ventilator, a scarce resource, unnecessarily when it can be used for those wanting to donate organs.”
To go back in time, before 1960, death was defined as the complete and irreversible cessation of spontaneous cardiac and respiratory functions. However, with the advance of medicine and ICUs, ventilators allowed temporary cardiopulmonary function in the absence of brain function, and the concept of brain-stem death evolved. But it is a relatively new concept in India and relatives still find it hard to believe that the patient is dead (brain dead) when his heart is still beating.
Before 1960, death was defined as the complete and irreversible cessation of spontaneous cardiac and respiratory functions. However, with the advance of medicine and ICUs, ventilators allowed temporary cardiopulmonary function in the absence of brain function, and the concept of brain-stem death evolved.
Often, there is confusion about what exactly constitutes brain stem death? Can a loved one who is brain dead suddenly come awake considering he is breathing normally? Should he be removed from the ventilator? Are doctors declaring him brain dead so as to harvest his organs? These are the many questions spawning in the minds of people.
Though brain death is the permanent cessation of all functions of the brain, individual organs may function. But there is lack of respiratory drive, consciousness and cognition, confirming that death is irreversible. Incidentally, once a person is brain dead, almost 37 organs and tissues can be harvested, including heart, kidneys, liver, lungs and pancreas.
Another issue regarding brain death is the reluctance of doctors to identify and certify such a patient. In spite of medical and legal acceptance globally, brain death is not promptly declared and many such patients are kept on life support needlessly. Dr Harsh Jauhari, chairman, renal transplant surgery, Ganga Ram Hospital and advisor, organ transplant to the Ministry of Health, said: “In the public’s mind, death is linked to organ donation. So they feel doctors are declaring a person brain dead so that the organs can be harvested. We want people to understand that both circulatory death and brain death mean the same thing—the person is dead. So we want one certificate to declare a person dead, be it due to circulatory or brain death.” It was suggested that the public and doctors be educated that a dead body can have a beating heart.
In India, he said, people don’t accept the inevitability of death. Also, a person in coma and a brain dead person are two different things. “A person can be comatose due to being drugged, tumors, accidents, etc, and can come out of it, whereas a brain dead person won’t,” he added.
Dr Rahul Pandit, head of Intensive Care, Fortis, Muland, Mumbai, and chairman, Indian Society of Critical Medicine, said that ironically, under the present Birth and Registration Act, one can declare a person circulatory dead but not brain dead. “We want to remove such anomalies. Also, under THOA, a panel of four doctors is needed to declare a person brain dead. We want to simplify this so that even an MBBS doctor with some experience can examine, identify and certify brain death.” The panel includes the doctor in charge of the patient, the doctor in charge of the hospital where he was treated, an independent specialist of unspecified specialty and a neurologist or a neurosurgeon.
While some states such as Tamil Nadu make identification and certification mandatory in government hospitals, it is yet to be implemented in other states. Certification will also make it easier for patients who don’t want to donate organs to be removed from the ventilator so that last rites can be done.
Another suggestion was to amend THOA so as to include “Donation after Circulatory Death” (DCD). This was a way to improve organ donation which is woefully inadequate in India.
In DCD, death is induced when there is futility of care. Abroad, there are clear laws in this regard, and if the families agree, the ventilator is willfully disconnected. In India, DCD is possible only under two circumstances—when there is a brain stem death but the family wishes to donate only after cardiac arrest. Second, if a donor has been given brain stem death certification and in the meantime, develops cardiac arrest. But active withdrawal of the ventilator is a tough decision to take and is not prevalent in India.
It was also suggested that families of a brain dead person should be shown the angiogram/CT scan or isotope brain scans so as to show them a visual image depicting “no brain activity”. It would make them more willing to remove the patient from the ventilator.
Another suggestion was that doctors must wait for 10 minutes after the absence of circulatory activity to declare a person dead. There are currently no guidelines on how much time a doctor should wait after the heart stops beating to retrieve organs. Different countries have prescribed different timings.
Better awareness of these issues would also help organ donation in our country, said Dr Shroff. “India is still to achieve the magical figure of one donation per million population. In the US, it is 22 per million, while Spain does about 35 per million. Tamil Nadu, Andhra Pradesh, Kerala, Maharashtra, Gujarat and Karnataka are quite active in organ donation. Tamil Nadu’s organ donation rate is 10 times the national average.” Dr Johri said that Tamil Nadu has a culture of donation and even the government is very proactive, leading to registration of brain stem deaths. It is time that things are made easier for all stakeholders who handle deaths—the patient foremost, his relatives and even hospitals.
As Isaac Asimov, the famous American author, said: “Life is pleasant. Death is peaceful. It’s the transition that’s troublesome.”
Lead Picture: A uniform death certificate which includes circulatory and brain stem deaths will make it easier for families and hospitals as well as those in need of organs.