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When is a person legally dead? (And does it really matter?)

I wrote an article for The Lawyer's Daily in which I explored the impact of a recent Ontario decision (McKitty v Hayani) involving a young woman declared brain dead. Her family challenged the standard of using “brain death” as the criterion for death. They wanted her death certificate revoked.

From the perspective of the family, a person who is brain dead often does not appear dead. For one, their heart can still be beating. The person's chest may rise and fall (since they are on a breathing machine), their body is warm to touch, and they may even be observed moving. These behaviours raise the question, when should a personally be legally dead?

Some families argue that "heart death", rather than brain death, should be used as the criterion to declare a person dead and issue a death certificate.

While writing the article, I came to an important realization: legal disputes involving brain death frequently have something in common – an unexpected tragedy. In my review of the case law I saw drug overdoses, automobile accidents and asthma attacks - situations that arise suddenly. In these cases the families fought against the criterion of brain death and advocated to keep their loved ones on life support.

The McKitty family lost their case. Health professionals in Ontario will continue to use the standard of brain death. This was not a surprising outcome, particularly because brain death is irreversible and supported by the majority of physicians as the appropriate standard.

As I reflected on these cases I reached the following conclusion:

"The issue, then, is not so much about the definition of death, but the fact that brain death comes first. A different definition of death is just a way to buy time. It means a family has to let go sooner, before they are ready. When a tragedy leads to brain death, everything happens too quickly – often faster than a family can process and accept what has transpired. Sometimes families are portrayed as not understanding the science or hoping for a miracle. While that might be true in some cases, I think it is too simplistic. Being able to hold a loved one’s hand, or give a warm body a kiss, is tangible. The patient will never regain consciousness, but they can still be shown love – regardless of the legal definition of death."

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