7.12Currently in New Zealand, in the absence of a statutory definition of death, a person needing to know whether “death” includes brain death must look to the common law for clarification. Unfortunately, the common law is unhelpful in this area. There have been only two cases in New Zealand that have discussed the definition of death, but neither provides clear guidance. Even if more case law is developed, each will consider only a narrow range of facts, which may or may not be relevant to future issues.
… advances in medical science and technology have taken us beyond the position where it is appropriate to think of death solely in terms of an irreversible cessation of respiration or circulation. But I find myself unable to accept that the Family Court, unaided by any statutory guidance, should go as far as declaring the common law in terms of [brain death].
[…] it could not be right for the common law to develop in such a way that the threshold of death could be fixed at different points depending on the individual circumstances. Some might find it acceptable to regard a state of permanent and irreversible unconsciousness, on its own, as a sufficient indication of death for the purposes of remarriage or for a grant of probate or administration. But it could be expected that there would be general difficulty in accepting the same criterion for the purpose of tissue or organ transplants, or for burial or cremation. […] It seems to me, however, that these are issues on which people’s values might be expected to differ quite widely and that if a threshold for death is to be fixed for any purpose below a level which attracts general acceptance in situations where there must be a high degree of certainty that death has occurred, that is function of Parliament, not the Courts.
7.15He then stated that Mrs Joe was not legally dead simply by attaining a state of permanent and irreversible unconsciousness. He added, however, that he might have been prepared to hold, as matter of law, that a person will be dead when there is irreversible cessation of brain stem function and when that person’s respiration and circulation can be sustained only by artificial cardiorespiratory processes. However, in this case, he was not required to do so nor thought it desirable to do so.