The diagnosis of brain death: medical and legal aspects with special reference to the German Transplantation Law (TPG)

Abstract

The diagnosis of brain death following total and irreversible cessation of all cerebral functions is based on anthropological assumptions and conventions as well as on the exact medical diagnosis of total loss of brain function. The question whether individual life ends after cerebral function is irreversibly lost cannot be answered by medical definition alone. Clear and unrefutable legal definitions of death and the cessation of the rights of the individual must be provided before organs may be harvested from brain dead individuals. Acceptance of these definitions by the general population is of paramount importance for the practice of organ donation. In the first part of this article, the legal definition of death and the provisions of the German transplantation law are critically reviewed. The legal statements deal with the question of the definition of death and how death can be detected. The provisions of the German transplantation law are referenced with special attention to the provision of prior consent to the removal of organs following after the diagnosis of brain death. The provisions of the German constitution with respect to the preservation of the personal rights of the individual are discussed in the light of organ harvesting. The second part deals with the medical procedure of determining brain death in adults. The medical statements pertain to the diagnostic steps to be taken in the diagnosis and determination of brain death. The prerequisites for entering the diagnostic procedure to determine brain death are described. The clinical signs of total and irreversible cessation of brain function are listed, and the technical examinations to corroborate the clinical signs of brain death as accepted in Germany are delineated. In the perspective of the authors, individuals having suffered brain death still possess the protection of their personal human rights according to the German constitution since it cannot be conclusively demonstrated that total loss of brain function alone constitutes the cessation of life in the sense of the German constitution.