Indian law on the determination of brain stem death is clear that the declaration of the brain stems death means declaring a person to be dead, both clinically and legally. But in practice brain stem death is declared only if organ donation is contemplated. We looked into the legal and ethical challenges faced by intensive care doctors in declaring death by neurological criteria.
The general practice in India is to provide the continued application of life-sustaining measures to the brain stem dead patient if relatives are not consenting to organ donation.If they agree to donation organ sustaining measures are instituted till organ retrieval is completed. Allowing the brain stem dead to continue on ventilators may lead to potential harms, which include mistreatment of the dead, deprivation of dignity, provision of false hope with resultant distrust, prolongation of the grieving process, undermining the professional responsibility of the physician to achieve a timely and accurate diagnosis, and anticipated societal harm arising from a negotiated and inconsistent standard of death. The objection raised by HCPs is that the Transplantation of Human Organ Act(THOTA) which defines brain stem death is not explicit about the standard of care to be followed by the hospital when a near relative is not authorizing organ removal.The wording of THOTA has given an impression to medical practitioners that they are supposed to declare death using brain stem death criteria only if organ donation is contemplated.

The THOTA or the Rules are silent as to the question of what if the deceased person's relatives are not giving consent for organ donation. In such an event of not providing consent for the relatives to remove organs, what should be the further course of action? Is the treating doctor legally allowed to withdraw all life support measures?.

Hence, a larger question of declaration of death using brain stem death criteria independent of organ donation remains an unsettled question in the minds of healthcare providers in India.

The lack of a uniform code of Indian practice guidelines in the brain stem death diagnosis and aftercare of those individuals who are not organ donors are the most important hurdles in bringing the determination of death using neurological criteria into common clinical practice.

Determination of brain stem death should not be limited to organ donation but should be standard clinical practice to ensure that an appropriate level of care is provided to patients. The certification of death (be it the cardiopulmonary criterion or brain stem death) should imply the withdrawal of all therapies, and further ventilation and homeostatic stabilization should be permitted only for preserving organs.

Such a statutory provision may remove ambiguities in the minds of health-care providers and the public, thereby making the dying process more dignified.