The Legal Void Outside Brain Death in India: The Legislative Need of 'DNR' in Brain Death

The legal definitions of brain death are tantamount for legal dogmas and sometimes criminal intimidation of the treating doctors. The tests for brain death are only applicable to patients planned for organ transplantation. We intend to discuss the necessity of the "Do Not Resuscitate (DNR)" legislature in cases of brain death patients and applicability of tests for brain death irrespective of the intention for organ donation.

A comprehensive review of the literature was performed till May 31, 2020 from the MEDLINE (1966 to July 2019) and Web of Science (1900 to July 2019). Search criteria included all publications with the MESH terms: "Brain Death/legislation and jurisprudence"[Mesh] OR "Brain Death/organization and administration"[Mesh] AND "India" [Mesh]. We also discuss the different opinions and implications of brain death versus brain stem death in India with the senior author (KG) who was responsible for South Asia's first multi-organ transplant after certifying brain death. Additionally, a hypothetical scenario of a DNR case is discussed in the current legal paradigm of India.

The systematic search yielded only five articles reporting a series of brain stem death cases with an acceptance rate of organ transplant among brain stem deaths being 34.8%. The most common solid organs transplanted were the kidney (73%) and liver (21%). A hypothetical scenario of a DNR and possible legal implications of the same under the current 'Transplantation of Human Organs Act (THOA)' of India remains unclear. A comparison of brain death laws in most Asian countries shows a similar pattern regarding the declaration of brain death and the lack of knowledge or legislature regarding DNR cases.

After the determination of brain death, discontinuation of organ support requires the consent of the family. The lack of education and the lack of awareness have been major impediments in this medico-legal battle. There is also an urgent need to make laws for cases that do not qualify for brain death. This would help in not only realistic realization but also better triage of the health care resources while legally safeguarding the medical fraternity.