The standard definition of death in India like many other countries defines death as an irreversible cessation of circulatory and respiratory functions. However with the advent of brain death in the 1960s death was redefined to include neurological criteria of death. Over the last 50 years organ donation after brain death has been an important source of scarce organs, but the demand has far exceeded the number of organs procured from these donors. To overcome this short supply many countries set up systems like ‘presumed consent’ and ‘mandated choice’ on the driving license to ensure that organs in brain death situation are optimally utilised to save lives of organ failure patients. The possibility of getting organs from brain death also lessened the pressure on the living donation programme in many countries.

In India, the government accepted brain death as a form of death in 1994 through the Transplantation of Human Organs (THO) Act for the purpose of organ donation. Unlike the standard definition of death where only one doctor is required to certify death, in brain death four doctors are required for death certification and this is required to be done twice, six hours apart. The ‘required request’ law from 2014 amendment of the THO Act requires the doctors and transplant coordinators in the ICU to ask for organ donation in the event of brain death. In such a situation the family may either agree or refuse for organ donation.

In the event of a family refusing to donate organs, discontinuation of ventilation and handing over the body has posed a problem in many hospitals, especially in the private sector. Sometimes the family wishes continuation of ventilation in the hope of a ‘miracle’ and can get belligerent if the doctor’s advise against it. Due to the general lack of trust in the healthcare system in India, hospitals in such situations have yielded to the wishes of the relatives and continued unnecessary ventilation of the dead. As the ventilation gets prolonged the issues related to care of such deceased gets more complicated. These new ethical and financial challenges of ventilating someone who is declared brain dead, but is not an organ donor requires delinking brain death from organ donation. Many hospitals that have faced problems have either written off the bill in such situations or faced the wrath of the media.

To tackle these issues it becomes mandatory for the government of India to look at how death is defined and to have a ‘uniform definition of death’ to include both the circulatory and neurological criteria of death. Delinking brain death from organ donation will help avoid any ambiguity in the interpretation of the law and help free ventilator beds in difficult situations. A uniform legislation on death has been incorporated in many other countries too that faced similar problems.

At present death is an important component in three different Laws in India:

1. The Registration of Births and Deaths Act, 1969

2. Section 46 of Indian Penal Code

3. Transplantation of Human Organs Act of 1994

The death certificate itself is available in 2 different formats:

1. The Registration of Births and Deaths Act, 1969

2. Transplantation of Human Organs Rules 1995

Uniform legislation on death will require mentioning brain death as a form of death in the ‘Registration of Births and Deaths Act’ and this will need to be included in the certificate too. The current stress on donation after circulatory death to increase the organ pool, also requires that we in India define how long doctors should wait after asystole has occurred, before they can safely proceed to organ donation. In the UK this ‘no touch time’ is defined as 5 minutes while in some other countries it is 10 and even 20 minutes in the case of Italy. When legislating the definition of death a consensus is required from medical professionals about the ‘no touch time’ for organ donation and this aspect needs to be included in the law too for safely proceeding to organ donation.

Dr. Sunil Shroff

(the editorial is based on a talk delivered at a

plenary session at the 6th National Bioethics

Conference 2017, Pune)