THE MOMENT OF DEATH: LAW, SOCIETY AND SCIENCE

Abstract

To determine the moment of death is very important for various purposes in medico-legal practice. The moment of death may not only assist and be regarded as valuable evidentiary material in criminal investigations but it is also important in the context of organ transplantation, questions regarding euthanasia, insurance claims, the termination of a marriage or business partnership as well as in the legal domain of succession. A diagnosis of death is furthermore important and necessary for society to commence with religious and/or traditional rituals, burials etcetera. In order to determine the exact moment of death, however, is not an easy task, least of all a very simple and straightforward undertaking as Prof Christiaan Barnard suggested by asserting that a person is dead when the doctor says that the person is dead!  To determine the exact moment of death, a definition of death is required as well as a standard to diagnose death – diagnostic criteria. This note will show that what initially may be regarded as general medical and legal requirements as well as basic semantics when referring to a definition of death, a concept of death and the criteria for the purposes of diagnosing death, is actually a very complicated, multifaceted and unsettled area of debate. The focus of this note will be on the moment of death in the broader context of medico-legal practice and with specific reference to the amendments made by the National Health Act 61 of 2003 in this regard. Owing to the vast scope of the topic, the note will highlight the main debates regarding the moment of death, the definition for death and criteria for determining death. The basic principles and comments on recent developments in this particular area of medical law will also be discussed.