Report No. 196
(1) Advances in science and technology and concepts of brain-stem death:
Science and technology developments in the last century have altered concepts of life and death. Today, a person who is in a persistent vegetative state, whose sensory systems are dead can be kept alive by ventilators and artificial nutrition for years. Heart may be stopped during open-heart surgery but the patient can be kept alive artificially. In scientific parlance, the body is treated as dead only if the 'brain-stem' becomes dead. Once brain stem is dead, the brain cells cannot be regenerated and it is at that stage a person is treated as dead.
The Indian statute, 'Transplantation of Human Organs Act, 1994 defines 'brain stem death' in section 2(d) as follows:
"2(d) 'brain stem death' means the stage at which all functions of the brain-stem have permanently and irreversibly ceased and is so certified under subsection (b) of section 3."
This aspect of 'brain stem death' was first mentioned by Thomas J, in the context of withdrawal of artificial respiration and nutrition in Auckland Area Health Board vs. Attorney General: 1993(1) NZLR 235 and his judgment received praise from the House of Lords in Airedale NHS vs. Bland: 1993(1) All ER 821 (HL).
The House of Lords stated in Airedale that a patient may be unconscious, unable to see or hear or speak or have any sensory capacity but as long as the brain-stem, which controls the reflective functions of the body is able to make the heartbeat and allow breathing to go on and digestion to take place, the person is not considered to be clinically dead. In the eyes of the medical world and of the law, a person is not clinically dead as long as the brain-stem retains its functions. A person may be alive, yet it may be a case of a 'living death' or 'ventilated corpse'.
As a result of developments in modern medicine and technology, a person who is unconscious and is on the verge of death but whose brainstem has not become dead, but who is close to death, can be kept alive by artificial respiration and nutrition. Ventilators are used for providing artificial respiration and food can be sent into the body through the mouth, nose or other procedures and the body can be kept alive.
Doctors no longer associate death exclusively with breathing and heartbeat and it has come to be accepted that death occurs when the brain and in particular the brain stem has been destroyed (See Prof. Ian Kennedy's paper 'Switching off Life Support Medicine: The Legal Implications' (Reprinted in 'Treat Me Right', Essay in Medical Law and Ethics (1988)(pp 351-392).
In USA, in McKay vs. Bugstedt: (1990) 801 P. ed. 617 (Nev Sup. Ct) Kenneth, aged 31 years, who was suffering from tetraplegia from the age of 10 wanted to be released from being artificially kept alive by life sustaining device of respirator. Justice Steffen said (at p 5):
"One of the verities of human experience is that all life will eventually end in death. As the seasons of life progress through spring, summer and fall, to the winter of our years, the expression unknown to youth is often heard evincing the wish to one might pass away in the midst of a peaceful sleep. It would appear, however, that as the scientific community continues to increase human longevity and promote 'the greying of America", prospects for slipping away during peaceful slumber are decreasing. And for significant number of citizens, like Kenneth, misfortune may rob life of much of its quality long before the onset of winter."
(quoted in Ms B vs. An NHS Hospital Trust: 2002 EWHC 429 by Dame Butler-Sloss, P of Family Court)
The Supreme Court of Arizona in Rasmussen vs. Fleming (1987) 154 Ariz 207 stated in a beautiful passage as follows:
"Not long ago, the realms of life and death were delineated by a bright line. Now this line is blurred by wondrous advances in medical technolog.- advances that until recent years were only ideas conceivable by such science fiction visionaries as Jules Verne and H.G. Wells. Medical technology has entered a twilight zone of suspended animation where death commences while life, in some form, continues. Some patients, however, want no part of a life sustained only by medical technology. Instead, they prefer a plan of medical treatment that allows nature to take its course and permits them to die in dignity."
(quoted by Justice O'Flaherty of the Ireland Supreme Court in Ward of Court, Re a: (1995) ILRM 401)
In the light of these developments, legal, moral and ethical issues have arisen as to whether a person who is under ventilator and artificial nutrition should be kept alive for all time to come till the brain-stem collapses or whether, in circumstances where an informed body of medical opinion states that there are no chances of the patient's recovery, the artificial support systems can be stopped. If that is done, can the doctors be held guilty of murder or abetment of suicide? These questions have been raised and decided in several countries and broad principles have been laid down. The case law in this behalf has been set out in Chapters II to V. In this chapter, we propose to summarise the principles under various headings.