Chapter 7
Certainty about when death occurs

Other jurisdictions

7.7In the 1970s and 1980s, many jurisdictions enacted statutory definitions of death following a seminal report from the Harvard Medical School.72 In the Commonwealth, these statutory definitions typically followed reports of the law commissions in those jurisdictions, and they generally focused on the need for a definition of death as brain death in the context of organ transplantation.
7.8Almost every Australian state and most states of the United States have a definition of death for all purposes along the following lines:73
a person has died when there has occurred—
(a) irreversible cessation of all function of the brain of the person; or
(b) irreversible cessation of circulation of blood in the body of the person.
7.9A few jurisdictions merely state that death means “brain death”.74
7.10It is interesting to note that in recommending a statutory definition of death as including “brain death”, the Australian Law Reform Commission also addressed the general application of such a definition:75

[…] although appearing in this context of transplantation, the recommended statutory definition of death is intended to have general application. It should not be limited in its legal effect to any particular kind of patient, nor to patients maintained by support machinery (although, in practice it will no doubt principally, if not exclusively, affect only such patients), nor to transplantation. […] Despite the greater accuracy of determining death by reference to cessation of brain function, it is clear that in most cases, death will be certified or determined according to the traditional respiratory-circulatory-cardiac standards. There will not be a great number of cases in which the need and facilities of, and opportunity of, employing the necessary ‘brain death’ criteria will be present.

7.11While this statement talks of the brain death definition having “general application”, in fact it is clear that the Australian Law Reform Commission did not intend it to apply to the doctor’s duty to certify death.

72Harvard Medical School ad hoc committee “Report of the ad hoc committee of the Harvard Medical School to examine the definition of brain death: The definition of irreversible coma” (1969) 7 Transplantation 204.
73For Australia, see Death (Definition) Act 1983 (SA), s 2; Human Tissue Act 1982 (Tas), s 27A; Human Tissue Act 1982 (Vic), s 41; Transplantation and Anatomy Act 1979 (Qld), s 45. For the United States, the Uniform Determination of Death Act is a draft state law recommended in 1981 by the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, the American Medical Association and the American Bar Association for adoption by all states.
74See, for example, the Canadian jurisdictions of Nova Scotia - Human Organ and Tissue Donation Act SNS 2010 c 36, s 2(j); and Newfoundland and Labrador - Vital Statistics Act SNL 2009 c V-6.01, s 2(1)(h); and also the National Health Act 2003 (South Africa), s 1.
75Australian Law Reform Commission Human tissue transplants (ALRC Report 7, 1977) at 63.