What is meant by "make declaration of brain stem death mandatory for every hospital"?

Question

I am an activist working for organ donation popularization in India, a country with a dismally low rate (0.5 per million). Apart from working for deceased donation, I had also offered my own organs as a living donor, but the donation couldn't go through due to unfortunate legal hurdles in unrelated living donation in India.

While reading a recent paper on the challenges, I found the following:

Sensitization of doctors regarding brain stem death declaration is one of the biggest challenges encountered by the transplant programme in India.

A major change in the transplant laws can significantly increase the deceased donor pool if declaration of brain stem death is made mandatory for every hospital.

Could the experts here please elaborate, in some detail, what is meant here? How are the brain stem deaths dealt with now, in the absence of such a law? Is it not reported/communicated? Are only the authorities not informed? Or is the family also not informed? Why is a separate law needed? How is it legal to not inform a death?

In other words, my question is what exactly is lacking today and why?

Thank you so much for this community. Your answer will guide my activist group's efforts.

Answer 1

The details are fleshed out in this article. Outside of India, jurisdictions differ as to whether they accept whole-brain-death vs. brain-stem death as "death". The article points out that there is not widespread awareness of the relevant medical concepts in India (which impacts the laws that are enacted). Brain-stem death was "legalized" by The Transplantation of Human Organs Act, 1994. The act sort of defines the term:

“brain-stem death” means the stage at which all functions of the brain-stem have permanently and irreversibly ceased and is so certified under sub-section (6) of section 3

but this is, apparently, insufficiently clear to practicing physicians, and there are or have been doubts about the legal procedure of certifying brain-death. Under the act, it is allowed to take organs if "it appears to be a case of brain-stem death, [and] that such death has been certified under sub-section (6)". Sub-section (6) allows but does not require a certification of brain-stem death, though one state, Maharashtra, passed a resolution making such a declaration mandatory.

The article points out that there is little literature on the actual practices of brain-death determination, "no sufficient evidence to determine the minimally acceptable observation period between clinical exams", and other medical issues which are discussed in the article.

This means that physicians do face or have faced significant uncertainty as to when it is legal to remove organs for transplant. As a general rule, when there is considerable risk of personal liability associated with one's decisions and since great liability attaches to removing organs from a non-dead person, removing physician option (w.r.t. certification of brain-stem death) reduces physician probability of liability, therefore may increase the supply of available organs.

Answer 2

The law presently doesn't define “dead”

Therefore each doctor must decide on the basis of their own knowledge and experience when someone is dead. In those circumstances, it is common for doctors to be unwilling to call a brain dead individual who still has respiratory and circulatory function “dead”, even if those functions require a machine.

Contrast this with new-south-wales, a jurisdiction where the type of law reform proposed has already happened: Human Tissue Act 1983 s33:

33 When death occurs

For the purposes of the law of New South Wales, a person has died when there has occurred--

(a) irreversible cessation of all function of the person's brain, or

(b) irreversible cessation of circulation of blood in the person's body.