A legal definition of death has always proven elusive and dependent, to some extent, on the level of available imaging or medical technology at the time of definition.
In Bennett v Peattie, the Ontario Court of Appeal stated that:
"From the standpoint of judicial inquiry, I am inclined to the view that in cases where there has been no resuscitation, death should be regarded as having taken place at the moment when respiration and pulsation ceased without entering into the inquiry that troubles biologists as to the exact line between life and death in the individual."
Consider these words of Justice MacKenzie in Re Rosebush:
"A person will be considered dead if in the announced opinion of a physician, based on ordinary standards of medical practice in the community, there is the irreversible cessation of spontaneous respiratory and circulatory functions. If artificial means of support preclude a determination that these functions have ceased, a person will be considered dead if in the announced opinion of a physician, based on ordinary standards of medical practice in the community, there is the irreversible cessation of spontaneous brain functions. Death will have occurred at the time when the relevant functions ceased."
The 1965 edition of Dorland's Medical Dictionary defined death vaguely and without reference to brain activity:
"Suspension or cessation of vital processes of the body, as heart beat and respiration".
The American National Conference of Commissioners on Uniform Laws proposed, in 1980, a Uniform Determination of Death Act which has been adopted by, amongst others, Kansas, as statute 77-202 as follows:
"An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards."
However, the definition is not totally patient-focused and instead accommodates the needs of the medical profession and organ transplants; thus the word "or" in the statute as opposed to the word "and" in the more exclusively legal definition.
Typically, organ transplant cannot occur until death has been certified.
In accordance with the uniform act, organs can be harvested from an irreversibly brain-dead person, thereby legally dead, even though circulatory and respiratory functions are still ongoing and viable.
Organ transplant puts apparently unstoppable pressure on the traditional legal definition of death. In Switzerland, the Swiss National Foundation for organ donation and transplantation defines the moment of deatn without any reference to circulatory and respiratory functions and as follows:
"... complete irreversible cessation of all brain function, including brain-stem function"
Almost all US states have adopted the uniform definition.1
In law, the moment of death requires formal and written certification by a medical professional and triggers the governance of the deceased's estate, by others, pursuant to his/her will of the relevant estate administration legislation.
References and Further Reading: