Legal and Medical Relevance of Establishing the Moment of Death
Legal and Medical Relevance of Establishing the Moment of Death

Summary/Abstract: For centuries, death has been defined, from a medical point of view, as the irreversible cessation of breathing, circulation and activity of nervous system. The actual techniques of reanimation, by giving the possibility of artificial surviving (the so called living dead) and by blurring the barrier between life and death, have brought into question the problem of establishing the moment of death. If in the traditional definition of death, the criteria for establishing death which are cessation of any vital functions, indicated by cessation of heartbeat and no breathing, are clear and the determination of timing of death doesn’t raise any medical, ethical or legal problems, controversy arises when referring to brain death. From a medical point of view, the biologic organism is still alive as long as the heart continues to beat although conditioned by artificial breathing. But, in conformity with the definition of the status of a human being, in terms of legal and ethical criteria, a person may be considered deceased independent of the status of the biological body. Issues raised by the timing of death, in particular cases as that of brain death, are reflected not only in medical field but also in civil and penal law. Consequences of the death of a person are legally passed on all aspects of ending of his civil capacity: the opening sequence, ending of civil rights and obligations of individuals, etc. The fact that Law 95/2006 clearly states that organs can be harvested both from those who are brain dead and from those with irreversible cardio-respiratory cessation, they being declared dead without doubt, clears up, in terms of legal considerations, the status of persons in this situation. Another problem of keeping alive the body in order to take over organs for transplantation is the preservation of human dignity. When a brain dead person (in all senses that are involved in the definition) is declared dead we deal with a body, kept alive but which lacks both the rights of a living individual and of a deceased person.

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