Clift, Hayden --- "How Dead Is 'Dead Enough'? Reconciling the Contested Definitions of Death to Better Facilitate Organ Donation After Voluntary Assisted Dying" [2024] UNSWLawJlStuS 5; (2024) UNSWLJ Student Series No 24-5

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HOW DEAD IS ‘DEAD ENOUGH’? RECONCILING THE CONTESTED DEFINITIONS OF DEATH TO BETTER FACILITATE ORGAN DONATION AFTER VOLUNTARY ASSISTED DYING

HAYDEN CLIFT

I INTRODUCTION

They say, in life, two things are certain – death and taxes. The definition of the former, however, is becoming increasingly less so. While death could once be established on purely somatic grounds – that is, in the absence of spontaneous breathing, circulation and responsiveness^[1] – the advent of life-sustaining technologies over the past 50 years has forced us to reconsider what it means to die.^[2] Mechanical ventilation, for instance, can sustain circulation and respiration in a person who, after suffering a catastrophic brain injury, would no longer be able to maintain those functions spontaneously.^[3] This increased liminal space between life and death has thus given rise to varied and competing understandings of when death is said to occur, with this contention spanning the fields of law, science and philosophy.^[4] The timing of a death declaration is critically important in the context of organ transplantation, where the Dead Donor Rule (‘DDR’) provides that donors must already by dead at the time of procurement.^[5] Clinically speaking, this poses practical challenges considering ‘live’ organs must be taken from the bodies of ‘dead’ patients to reduce warm ischaemic time.^[6] With an ever-growing shortage of transplantable organs,^[7] and the recent legalisation of Voluntary Assisted Dying (‘VAD’) in all Australian states,^[8] this essay analyses the current legal, scientific and moral arguments concerning the practice of organ donation after VAD (‘dVAD’). It ultimately contends that dVAD is legally permissible under the current VAD schemes in Australia, but is complicated by an antiquated legal definition of death and unnecessarily conservative VAD laws. A bioconstitutional framework will be adopted to explore the state’s role in defining death and canvas potential avenues to greater facilitate dVAD in Australia.

This essay will consist of eight parts. Following this introduction, Part II will establish a bioconstitutional framework within which the ensuing analysis will be situated. In Part III, the legal, biological and moral definitions of death will be compared. The statutory requirements pertaining to organ donation will be outlined in Part IV. Part V will perform a comparative analysis of VAD schemes across Australian jurisdictions. The challenges associated with dVAD will be examined in Part VI, and a bioconstitutional solution to these problems will be posited in Part VII. Finally, Part VIII will serve as this essay’s conclusion.

II THEORISING BIOCONSTITUTIONALISM

In order to holistically conceptualise the state’s role in defining death, and therefore contemplate possible ways to greater facilitate dVAD using state processes, one must first position state-citizen relations within a bioconstitutional framework.

Put simply, bioconstitutionalism focuses on how the state’s legal, political and moral apparatus imagine and regulate human bodies.^[9] While the concept was popularised by Jasanoff in the early 21^st century,^[10] it is derivative of Foucauldian biopolitics.^[11] In attempting to push beyond Marx’s conception of state-power relations, Foucault conceived government as the ability to exercise political sovereignty, and with this sovereignty comes the juridical power to ‘foster life’.^[12] In exploring Foucault’s work, Adorno argued that the circumstances under which life can be seized equally falls within the government’s purview.^[13] This therefore renders biopolitics a thanatopolitical phenomenon.^[14] Indeed, Foucault argued that the commonly-espoused right to life and death is rooted in the sovereign’s right to kill; sovereign power is not exercised in simply allowing life and death, but rather in the sovereign actively taking or sparing a human life.^[15] Accordingly, it can therefore be said that the state derives its political legitimacy from its ability to control the human body and its biological processes.

Bioconstitutionalism, on the other hand, provides a theoretical extension of this discourse as it highlights the legal and constitutional frameworks that govern biopolitical practices. It suggests that the preservation of life is the core function of the constitutionally-regulated state, realised through the enactment of law and policy.^[16] Bioconstitutional scholars present questions of law, biology and morality as being intertwined and codependent – developments in biological knowledge alter our understanding of the moral ends of human life, and therefore shape how the state carries out its duty to protect the lives of its citizens.^[17] As new biological realities emerge, the normative concepts upon which the law relies are challenged.^[18] This aligns closely with the notion of coproduction whereby natural and social orders are taken to develop together.^[19] Another critical feature of bioconstitutionalism rests in its consideration of ‘culturally distinctive imaginaries’ in defining the limits of life.^[20] This echoes the construction of biolegality which positions biotechnological innovation as central to evolving interpretations of ‘truth’ within law and therefore integrates biological knowledge into our social fabric.^[21] Hence, bioconstitutionalism provides an ideal theoretical framework through which to analyse the state’s approach to death as it problematises the ‘mutually constitutive interplay’ between law and science,^[22] while also taking into account the cultural and social considerations which form morality’s bedrock.

III DEATH IN BIOLOGY, MORALITY AND LAW

Having established a bioconstitutional framework, one must now analyse how different sects of knowledge define death. It has long been recognised that there exists a clear categorical distinction between life and death legally, socially and psychologically.^[23] In the legal context, for instance, the death of an assault victim will invariably increase the charge faced by an accused to manslaughter or murder. Further, and indeed to which this essay will return, organs can only be procured from naturally dead donors, otherwise the transplant surgeon will face legal, even criminal, sanctions.^[24] Despite its categorical significance, there is no universal agreement between relevant stakeholders on what it means to be dead.^[25] This dynamic has only increased in complexity as biomedical innovations facilitate new modes of existence, and the liminal space between life and death has widened.^[26] As such, the below sections will survey the biological, moral and legal definitions of death respectively, with the goal of establishing common ground between the differing conceptions.

A Biology

In scientific knowledge, death has traditionally been conceived as a biological reality and the notion of ‘organismic death’ has thus prevailed;^[27] that is, an organism biologically dies when it, as a whole, loses the capacity for integrated functioning.^[28] Importantly, writing in 1834, Philip observed that biological death can be separated into two distinct physiological stages – the ‘final loss’ of sensorial functions which he calls ‘the name of death’, and the loss of all functions which he labels ‘absolute death’.^[29] This therefore highlights that death is understood to be a biological process marked by the progressive loss of physiological functions.^[30] Indeed, Moschella posits that death is best described as a change in substance (from one type of entity to another), not the cessation of all signs of biological life.^[31] She further notes that organismic death occurs well before the cessation of all biological functions, as certain immune responses can still be triggered up to several days postmortem.^[32] However, the imposition of a ‘loss of integrated function’ standard in determining death imposes an important threshold question: at what stage is ‘integrated function’ lost?^[33] This is complicated by life-sustaining technologies that, in effect, seek to artificially uphold a human’s integrated function and subverts the ‘intuitive’ biological understanding of death.^[34]

These biological facts are useful in grounding death as first and foremost a biological reality. However, they do not provide unequivocal assistance in ascertaining where the limits of that reality lie. After all, any biological conception of death also relies on ‘metaphysical presuppositions’ on the requisite biological threshold to which death can appropriately be declared.^[35] As observed above, reliance on absolute death in biology is niche. Where the line is drawn in determining death therefore invites a consideration of moral virtues,^[36] and as articulated in the bioconstitutional framework constructed in Part II, rests upon the social and cultural values that inform one’s interpretation of biological phenomena.

B Morality

As previously established, attempts to deconstruct biological phenomena necessitate the consideration of cultural, moral and philosophical approaches to the life sciences. In fact, many social scientists frame death as a social construct, with the precipice of death relying on the moral virtues that different societies, cultures and religions attach to life.^[37] Seale, for example, places death at the intersection between social structure, social relations and the body, arguing that the interpretation of bodily functions is culturally shaped.^[38] This closely aligns with DeGrazia’s position that biological signs of life, such as a pulse or spontaneous respiration, should not be taken to be life itself, but are rather representative of a more complex reality.^[39] Here, one observes a noticeable connection to the biological, organismic definition of death. The body, or indeed life itself, is conceived as a set of independent-though-connected units which together function to produce outputs in the form of consciousness, digestion and bodily movement, for example, which themselves evoke cultural responses. Social science may therefore affirm that life is dependent on ‘integrated function’, though the value of each function in an integrated unit is subject to social understandings of life processes.

Moreover, philosophical thought may be expressly applied to matters of ‘biological reality’ to provide definitional clarity. Bernat attempts precisely this as he describes death as a ‘biological paradigm’.^[40] He recognises that death is first and foremost a biological reality, yet conditions the existence of that reality on seven biophilosophical assumptions:

1. Death is a non-technical term used to describe the cessation of an organism’s life;

2. Life is ultimately a biological phenomenon, and the termination of it must also be regarded as such;

3. Death is a univocal concept applied to all higher animal species;

4. Death, as a biological concept, can only be applied to organisms;

5. Organisms exist within a strict binary of life and death as mutually exclusive underlying states of existence;

6. Death is an event, not a process; and,

7. Death is irreversible.^[41]

Bernat’s sixth criterion – that death is an event – has notably been subject to scholarly debate, and is of particular importance to this essay, given the significance of a death declaration’s temporal element to organ donation. This argument is mounted on his fifth criterion – that no intermediary state exists between life and death, and so the transition from the former to the latter must be instantaneous.^[42] Elsewhere, it has also been contended that construing death as a process risks conflating it with the different, often more protracted, process of dying – itself a sociological construct.^[43] However, recognition of the increased liminal space between life and death as a result of novel biomedical technologies,^[44] coupled with the biological knowledge that death occurs over multiple stages,^[45] arguably challenges the dualistic conception of life and death advanced by Bernat. Hence, this showcases the high moral charge associated with the philosophical interpretation of biological phenomena, while also highlighting the symbiosis been biology and the social sciences.

C Law

Having considered the biological and moral understandings of death, the manner in which these understandings materialise in law assumes fundamental importance. After all, the transcription of biological knowledge into legal text is a form of ‘political enterprise’ and represents a cornerstone of bioconstitutional inquiry.^[46]

While the subject of state legislation, the definition of death throughout Australia is near universal. All Australian states and territories define death as the irreversible cessation of circulation of blood in the body of the person or the irreversible cessation of all function of the brain of the person, albeit with some minor syntactic variation.^[47] Notably, however, Western Australia does not define circulatory death.^[48] Nonetheless, this bifurcated definition was adopted in response to a 1977 report tabled by the Australian Law Reform Commission (‘ARLC’) which was tasked with providing recommendations on how to regulate human tissue transplants in light of the first successful transplantation of a human heart.^[49] The ALRC itself was seemingly influenced by the definition proposed by the United States Uniform Law Commission.^[50]

The recognition of circulatory death was uncontroversial, merely formalising a standard of death determination which had been socially and medically accepted for centuries.^[51] Legislating for brain death, however, proved more problematic. The definition is one of whole-brain death, which some scholars have suggested is flawed given certain higher-brain functions currently remain untestable.^[52] The New South Wales Supreme Court, however, appears to have interpreted this standard as being equivalent to no detectable brain activity.^[53] Indeed, this aligns with the concept of brain death originally articulated by the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death (‘Harvard Ad Hoc Committee’) in 1968 which proposed that ‘comatose individuals who have no discernible central nervous system activity’ be declared dead.^[54] By contrast, United Kingdom courts (with a lack of definitive statutory guidance) favour a brainstem definition – meaning brainstem function has been irreversibly lost though certain higher brain functions may remain – on the basis that it more closely resembles clinical conceptions of brain death.^[55] Critics of whole-brain death argue that a person should not be regarded as medically or legally alive when they have no prospects of regaining consciousness or any other neurological function, but retain some brain activity on a disintegrated, cellular level.^[56] Such criticism resembles the focus on loss of integrated function favoured in biology. Notwithstanding this contention, the legal recognition of brain death evidences the state’s acceptance of new moral and scientific conceptions of death, conditioned by the advent of life-sustaining technologies, which challenged the prior normative assumption that the presence of respiratory function unequivocally represented the presence of life.

IV STATUTORY REQUIREMENTS FOR ORGAN DONATION AND THE LIMITS OF THE DDR

Understandings of death must now be situated within the context of organ donation. The relevant statutory schemes mandate that for donation to occur in Australia, two requirements must be met. First, the donor of vital organs must already be pronounced dead; meaning, organ procurement must not cause the death of the donor.^[57] Secondly, consent must be granted and documented either premortem by the donor or perimortem by the donor’s senior available next of kin.^[58] For the purpose of this essay, the ensuing discussion will be focused solely on the first requirement.

The requirement that organ procurement not be the proximate cause of a donor’s death – otherwise known as the DDR – dates back to the 1960s, during which the French National Council of the Order of Physicians, Harvard Ad Hoc Committee and World Medical Assembly were concerned with the possibility of transplant surgeons being exposed to legal liability by procuring organs from individuals sustained on ‘artificial survival’.^[59] Killing is, of course, unlawful in most contexts, and changing the definition of death to recognise an irreversible loss of brain function would thus reduce any legal or social allegations that transplant surgeons were killing patients who no longer displayed signs of neurological activity.^[60]

Donation after brain death is preferred given the condition of the heart-beating donor’s organs can be maintained prior to retrieval which thus reduces warm ischaemic time.^[61] However, the acute shortage of transplantable organs has resulted in a steady rise in donation after circulatory death (‘DCD’).^[62] This most often involves bringing the patient, who is ‘near death and ... ventilator-dependent but will not progress to brain death’ into the operating theatre,^[63] withdrawing life support systems and observing an absence of circulation for five minutes to ensure autoresuscitation does not occur,^[64] before a pronouncement of death is made and the organs retrieved.^[65]

Questions have arisen as to whether DCD contravenes the DDR.^[66] Most notably, relying on a definition of death that recognises an irreversible cessation of cardiac function is problematic in heart transplants, where the poignant question arises: ‘If you can start this heart going again in a new body, why couldn’t you have kept it going in the old one?’^[67] This unresolved ethical question, ^[68] rooted in medical practice and framed by the legal transcription of socio-biological phenomena, demonstrates a lack of cohesion between the clinical reality of organ transplantation and the current legal framework. Therefore, the moral weight attached to the DDR cannot be regarded absolute.

V VAD IN AUSTRALIA

The statutory requirements of VAD in Australia will now be concisely laid out. At the outset, it is important to note that VAD determines in what context the killing of another person will be legally acceptable and thus does not fall under public health law, but is rather a product of criminal law.^[69] Moreover, some scholars have articulated the inherently biopolitical nature of VAD, wherein the relevant legislative schemes are created through the state’s interpretation of new biomedical practices, and their perceived social and political utility.^[70]

Statutory schemes allowing for and regulating VAD in Australian jurisdictions are of recent vintage, with Victoria becoming the first jurisdiction to legislate for VAD in 2017 and all states following soon after.^[71] The territories also have the newfound ability to legislate for VAD,^[72] though such legislation is yet to be passed.^[73] The general legislative structure facilitating VAD remains relatively consistent across jurisdictions, though there is variation in eligibility criteria, the assessment process and administration requirements.^[74] Generally speaking, a person will be eligible for VAD if they are an adult suffering a terminal illness and are within 6 months of death, or 12 months in some states if the terminal illness is neurodegenerative.^[75] The person must also have decision-making capacity, be acting voluntarily and free from duress.^[76] Healthcare workers are prohibited from proposing VAD,^[77] and, with the exception of New South Wales,^[78] the VAD substance must be self-administered, though practitioner administration may be permitted in some circumstances.^[79] These requirements have been labelled excessively conservative.^[80]

VI FEASIBILITY OF dVAD

Having outlined the relevant statutory requirements of VAD throughout Australia, the feasibility of dVAD will now be considered.

Notably, nothing in law prohibits the practice of dVAD in Australia. A person may, having met the legal criteria for VAD, be declared dead within the legal definition following the administration of a VAD substance and, provided consent is obtained, may have their organs retrieved for the purpose of donation.^[81] In fact, the first instance of dVAD in Australia was reported in September last year.^[82]

There exists, however, a number of practical, clinical and ethical challenges which limit the scale to which dVAD can be widely implemented. First, VAD substances kill their consumer by sending them into respiratory arrest.^[83] Thus, dVAD relies on DCD which, as previously outlined, is medically, ethically and arguably even legally flawed.^[84] Secondly, the importance of reducing warm ischaemic time in ensuring the viability of transplantable organs means that dVAD depends on the patient’s willingness to die in hospital.^[85] Ascertaining that willingness is difficult given healthcare workers cannot initiate VAD discussions.^[86] This further raises the important issue of informed consent. Up to 70% of Australians want to die at home,^[87] and while this is unachievable for most people, it largely remains within the control of VAD patients whom can decide when and where they die. The possibility of dVAD is therefore a significant factor informing the matrix of a terminally ill person’s end-of-life choices. Thirdly, the lack of professional protocols in relation to dVAD means that clinicians are without guidance on how to facilitate dVAD in a medically, ethically and legally acceptable manner.^[88] Fourthly, a vast number of VAD patients will be ineligible for organ donation given the risk of malignancy. Approximately 10% of patients eligible for VAD, however, would be medically suitable.^[89]

Importantly, public confidence in the healthcare system remains paramount. As observed throughout Australia, and indeed internationally, VAD is a politically contentious issue which attracts strong responses across the political spectrum.^[90] Despite its widespread support, there exists even with the medical fraternity, a small minority whom view the practice of VAD unconscionable.^[91] In introducing a policy agenda to greater facilitate dVAD in Australia, such responses and attacks should again be expected. However, public consultation and public information campaigns should be utilised to combat the potential spread of misinformation. In doing so, the social utility of dVAD can widely articulated (which itself may increase informed consent), and trust in medical professionals, and the healthcare system more generally, can be upheld.

VII RECONCILING THE TENSION: DEATH AS A BIOCONSTITUTIONAL PHENOMENON

Previous parts have analysed the contested notions of death, the limits of DCD and the DDR, the conservative statutory scheme regulating VAD and the current challenges on putting dVAD into practice. Here, this essay makes a number of recommendations in seeking to reconcile the tensions earlier outlined through a bioconstitutional framework.

First, the most pressing issue plaguing the realisation of dVAD is reliance on DCD and the problematic nature of cardiac death. In the context of the two legal standards – cardiac and whole-brain – being inherently flawed, reforming the legal definition of death is necessary. Per the bioconstitutional symbiosis between law and science, the state determines when a life can be taken by conditioning the terms on which a legally recognised death is constituted.^[92] Additionally, the relationship between the state and its citizens is reframed through the state’s legal response to changing conceptions of the life-death distinction.^[93] Therefore, the state may regulate the process of death to maximise utility for its citizens, such as to facilitate dVAD.

Further, the current death standards rely on the absence of signs of life; namely, either cardiac or neurological activity. However, such absences should not be taken to be death itself, as they simplify and obscure the nature of biological reality.^[94] They are, after all, ‘legal fictions’.^[95] Instead, these two standards both construct the irreversible disintegration of bodily function in differing ways. Rather, this essay recommends that the broader biological standard of death be imposed: the irreversible cessation of integrated function in the body of the person as a whole. Some have argued that this standard is merely another articulation of whole-brain death.^[96] However, it is argued that the definition extends much more broadly. Organisms are essentially sets of connected systems, themselves comprised of individual organs. When one system ceases irreversibly, the remaining become incapable of functioning independently, even if life-sustaining biomedical interventions cloak this loss.^[97] This also aligns with the earlier-mentioned social scientific construction of the body as a culturally-shaped set of independent-though-connected units.^[98] While the threshold question ‘how dead is dead enough?’ remains, the integrated function standard is at least flexible enough to adapt to changing social attitudes towards the constituent parts of life and death. Such flexibility also allows for a more fluid, co-productive relationship between the state and its citizens in conceptualising death. This definition can greater facilitate dVAD as VAD patients’ organs may be procured once their bodily systems have started shutting down following the consumption of the VAD substance, which in turn reduces warm ischaemic time.

It is also recommended that VAD laws be amended to allow medical practitioners to initiate VAD discussions with patients. This better facilitates informed consent, and allows patients to make the choice to die at hospital if they wish to donate their organs, shifting the decision away from the state. Suggestions that clinical environments be made to feel more homely and comforting should also be considered to greater allow VAD patients to achieve their end-of-life goals.^[99] This would effectively reduce the tension that exists between a VAD patient’s choice to participate in dVAD and their wish to die in a comfortable, compassionate setting.

Finally, state-based guidelines should be drafted to provide clinical, moral and legal guidance to medical practitioners in relation to dVAD. Such guidelines already exist in relation to VAD generally.^[100] They would ensure quality patient care and inform practitioners of their duties to prevent misconduct.^[101]

VIII CONCLUSION

This essay primarily asks at what point can a person be deemed sufficiently dead for the purpose of facilitating dVAD. In providing a theoretical explanation of this question, death is unmistakably a bioconstitutional phenomenon born out of the biological, moral and legal exchanges between the state and its citizens. The current relationship between the Australian organ donation and VAD legislative schemes present challenges to widely implementing dVAD – a practice that has internationally saved approximately 1,000 lives.^[102] However, in redefining death as the ‘irreversible cessation of integrated function in the body of the person as a whole’, such legislative schemes can more closely reflect our current biological reality, ensure the law is operating for the utility of citizens, and better accommodate this life-saving practice.

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^[1] Neera Bhatia and James Tibballs, ‘Heart Transplantation after Circulatory Death: It Is Time to Redefine Death According to Irreversible Cessation of the Circulation and Reconcile It with Irreversible Cessation of Brain Function’ [2022] UNSWLawJl 36; (2022) 45(3) University of New South Wales Law Journal 1154, 1157.

^[2] Sam D Shemie, ‘Life, Death, and the Bridges In-between’ (2014) 1330(1) Annals of the New York Academy of Sciences 101, 101.

^[3] Robert D Truong, ‘Brain Death at Fifty: Exploring Consensus, Controversy, and Contexts’ (2018) 48(S4) Hastings Center Report S2, S2.

^[4] See, eg, IH Kerridge et al, ‘Death, Dying and Donation: Organ Transplantation and the Diagnosis of Death’ (2002) 28(2) Journal of Medical Ethics 89.

^[5] See generally John A Robertson, ‘The Dead Donor Rule’ (1999) 29(6) Hastings Center Report 6.

^[6] Bhatia and Tibballs (n 1) 1165.

^[7] Anne-Maree Farrell, ‘Addressing Organ Shortage: Are Nudges the Way Forward?’ (2015) 7(2) Law Innovation and Technology 253.

^[8] See Voluntary Assisted Dying Act 2022 (NSW) (‘NSW VAD Act’); Voluntary Assisted Dying Act 2021 (Qld) (‘Qld VAD Act’); Voluntary Assisted Dying Act 2021 (SA) (‘SA VAD Act’); End-of-Life Choices Act 2021 (Tas) (‘Tas VAD Act’); Voluntary Assisted Dying Act 2017 (Vic) (‘Vic VAD Act’); Voluntary Assisted Dying Act 2019 (WA) (‘WA VAD Act’).

^[9] Sheila Jasanoff, ‘Introduction: Rewriting Life, Reframing Rights’ in Sheila Jasanoff (ed), Reframing Rights: Bioconstitutionalism in the Genetic Age (MIT Press, 2011) 1, 4 (‘Rewriting Life’).

^[10] See, eg, Sheila Jasanoff (ed), Reframing Rights: Bioconstitutionalism in the Genetic Age (MIT Press, 2011).

^[11] J Benjamin Hurlbut, Sheila Jasanoff and Krishanu Saha, ‘Constitutionalism at the Nexus of Life and Law’ (2020) 45(6) Science, Technology and Human Values 979, 983.

^[12] Michel Foucault, The History of Sexuality: The Will to Knowledge (Penguin Books, vol 1, 2008) 138.

^[13] Francesco Paolo Adorno, ‘Power over Life, Politics of Death: Forms of Resistance to Biopower in Foucault’ in Vanessa Lemm and Miguel Vatter (eds), The Government of Life: Foucault, Biopolitics, and Neoliberalism (Fordham University Press, 2014) 98, 104–5.

^[14] Muhammad Ali Nasir, ‘Biopolitics, Thanatopolitics and the Right to Life’ (2016) 34(1) Theory, Culture and Society 75.

^[15] Michel Foucault, Society Must Be Defended (Picador, 1977) 240.

^[16] Jasanoff, ‘Rewriting Life’ (n 9) 3; Sheila Jasanoff, ‘Making the Facts of Life’ in Sheila Jasanoff (ed), Reframing Rights: Bioconstitutionalism in the Genetic Age (MIT Press, 2011) 59, 67.

^[17] Hurlbut, Jasanoff and Saha (n 11) 980.

^[18] Ibid 981.

^[19] Sheila Jasanoff, ‘The Idiom of Co-production’ in Sheila Jasanoff (ed), States of Knowledge: The Co-production of Science and Social Order (Routledge, 2004) 1, 2.

^[20] Hurlbut, Jasanoff and Saha (n 11) 983.

^[21] Sonja van Wichelen and Marc de Leeuw, ‘Biolegality: How Biology and Law Redefine Sociality’ (2022) 51 Annual Review of Anthropology 583, 585.

^[22] Jasanoff, ‘Rewriting Life’ (n 9) 3.

^[23] Robert M Veatch, ‘The Evolution of Death and Dying Controversies’ (2009) 39(3) Hastings Center Report 16, 17.

^[24] See generally Robertson (n 5).

^[25] See, eg, Ariane Lewis, Katherine Cahn-Fuller and Arthur Caplan, ‘Shouldn’t Dead Be Dead? The Search for a Uniform Definition of Death’ (2017) 45(1) Journal of Law, Medicine and Ethics 112.

^[26] David DeGrazia, Human Identity and Bioethics (Cambridge University Press, 2012) 119–20; Elizabeth Dzeng, ‘Navigating the Liminal State Between Life and Death: Clinician Moral Distress and Uncertainty Regarding New Life Sustaining Technologies’ (2017) 17(2) American Journal of Bioethics 22.

^[27] See Andrew P Huang and James L Bernat, ‘The Organism as a Whole in an Analysis of Death’ (2019) 44(6) Journal of Medicine and Philosophy 712.

^[28] Jeff McMahan, ‘An Alternative to Brain Death’ (2006) 34(1) Journal of Law, Medicine and Ethics 44, 47.

^[29] APW Philip, ‘On the Nature of Death’ (1834) 124 Philosophical Transactions of the Royal Society of London 167, 170.

^[30] Cf James L Bernat, ‘The Biophilosophical Basis of Whole-Brain Death’ (2002) 19(2) Social Philosophy and Policy 324, 331–2 (‘Biophilosophical Basis’).

^[31] Melissa Moschella, ‘Complexity of Defining Death: Organismal Death Does Not Mean the Cessation of All Biological Life’ (2017) 23(11) Journal of Medical Ethics 754, 754.

^[32] Ibid.

^[33] Maureen L Condic, ‘Determination of Death: A Scientific Perspective on Biological Integration’ (2016) 41(3) Journal of Medicine and Philosophy 257, 257.

^[34] Ibid.

^[35] Moschella (n 31) 754.

^[36] See Bernat, ‘Biophilosophical Basis’ (n 30).

^[37] See, eg, Clive Seale, Constructing Death: The Sociology of Dying and Bereavement (Cambridge University Press, 1998); Raymond G de Vries, ‘Birth and Death: Social Construction at the Poles of Existence’ 59(4) Special Forces 1074; Sarah Brabant, ‘Death: The Ultimate Social Construction of Reality’ (2010) 62(3) Omega 221; David Benator (ed), Life, Death and Meaning: Key Philosophical Readings on the Big Questions (Rowman and Littlefield, 2^nd ed, 2010) pt III.

^[38] Seale (n 37) 49.

^[39] DeGrazia (n 26) 119. See also President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Defining Death: A Report on the Medical, Legal and Ethical Issues in the Determination of Death (Report, July 1981) 33.

^[40] Bernat, ‘Biophilosophical Basis’ (n 30) 329.

^[41] Ibid 329–32.

^[42] Ibid 331–2.

^[43] James L Bernat, Charles M Culver and Bernard Gert, ‘On the Definition and Criterion of Death’ (1981) 94(3) Annals of Internal Medicine 389, 389–90.

^[44] See Dzeng (n 26).

^[45] Moschella (n 31) 754.

^[46] Jasanoff, ‘Rewriting Life’ (n 9) 1.

^[47] Transplantation and Anatomy Act 1978 (ACT) s 45; Human Tissue Act 1983 (NSW) s 33; Transplantation and Anatomy Act 1979 (NT) s 23; Transplantation and Anatomy Act 1979 (Qld) s 45(1); Death (Definition) Act 1983 (SA) s 2; Human Tissue Act 1985 (Tas) s 27A; Human Tissue Act 1982 (Vic) s 41.

^[48] See Human Tissue and Transplant Act 1982 (WA) s 24(2); Law Reform Commission of Western Australia, Review of the Law of Homicide (Final Report, September 2007) 25–7, recommendation 3(a).

^[49] Australian Law Reform Commission, Human Tissue Transplants (Report No 7, 30 June 1977) 63 [136].

^[50] See Uniform Law Commission, ‘Uniform Determination of Death Act’ (Model Act, 1981) s 1.

^[51] Sam David Shemie and Dale Gardiner, ‘Circulatory Arrest, Brain Arrest and Death Determination’ (2018) 5 Frontiers in Cardiovascular Medicine 15: 1–6, 3.

^[52] Bhatia and Tibballs (n 1) 1162; Robert M Veatch, ‘Controversies in Defining Death: A Case for Choice’ (2019) 40(5) Theoretical Medicine and Bioethics 381, 386.

^[53] Ibrahim v South Eastern Sydney Local Health District [2018] NSWSC 913 [8] (N Adams J).

^[54] Ad Hoc Committee of the Harvard Medical School, ‘A Definition of Irreversible Coma: Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death’ (1968) 205 Journal of the American Medical Association 337, 337 (emphasis added).

^[55] See, eg, Re M (Declaration of Death of Child) [2020] EWCA Civ 164; Re A (A Child) [2015] EWHC 443 (Fam). See also James Tibballs and Neera Bhatia, ‘New Challenges to the Legal Definition and Medical Determination of Brain Death: A Multijurisdictional Approach’ (2021) 28(3) Journal of Law and Medicine 831, 839–40.

^[56] Robert M Veatch, ‘The Impending Collapse of the Whole-Brain Definition of Death’ (1993) 23(4) Hastings Center Report 18, 18.

^[57] See, eg, Human Tissue Act 1983 (NSW) s 26.

^[58] See, eg, ibid s 23(1).

^[59] David Rodríguez-Arias, ‘The Dead Donor Rule as Policy Indoctrination’ (2018) 48(S4) Hastings Center Report S39, S41.

^[60] Ibid; Bhatia and Tibballs (n 1) 1147.

^[61] DW McKeown, RS Bonser and JA Kellum, ‘Management of the Heartbeating Brain-Dead Organ Donor’ (2012) 108(S1) British Journal of Anaesthesia i96, i96.

^[62] Robert M Sade, ‘Brain Death, Cardiac Death, and the Dead Donor Rule’ (2011) 107(4) Journal of the South Carolina Medical Association 146, 147.

^[63] Franklin G Miller and Robert M Sade, ‘Consequences of the Dead Donor Rule’ (2014) 97(4) Annals of Thoracic Surgery 1131, 1136.

^[64] Australian and New Zealand Intensive Care Society, The Statement on Death and Organ Donation (Report No 4.1, 2021) 23 [1.3.1].

^[65] Sade (n 62) 147.

^[66] See, eg, Bhatia and Tibballs (n 1); James L Bernat, ‘Clarifying the DDR and DCD’ (2023) 23(2) American Journal of Bioethics 1; D Gardiner and A McGee, ‘Death, Permanence and Current Practice in Donation after Circulatory Death’ (2017) 110(4) International Journal of Medicine 199.

^[67] Bhatia and Tibballs (n 1) 1155 quoting Albert Rosenfeld, ‘Heart Transplant: Search for an Ethic’ (1968) 64(14) Life 75, 79.

^[68] Bhatia and Tibballs (n 1) 1155.

^[69] David J Carter, ‘A Criminal Legal Biopolitics: The Case of Voluntary Assisted Dying’ in David J Carter (ed), Voluntary Assisted Dying: Law? Health? Justice? (Australian National University Press, 2022) 179, 183.

^[70] Marc Trabsky, ‘The Neoliberal Rationality of Voluntary Assisted Dying’ in David J Carter (ed), Voluntary Assisted Dying: Law? Health? Justice? (Australian National University Press, 2022) 95.

^[71] See NSW VAD Act (n 8); Qld VAD Act (n 8); SA VAD Act (n 8); Tas VAD Act (n 8); Vic VAD Act (n 8); WA VAD Act (n 8).

^[72] Restoring Territory Rights Act 2022 (Cth).

^[73] See however Voluntary Assisted Dying Bill 2023 (ACT).

^[74] See Katherine Waller et al, ‘Voluntary Assisted Dying in Australia: A Comparative and Critical Analysis of State Laws’ (2023) 46(4) University of New South Wales Law Journal 1421.

^[75] Ibid 4.

^[76] NSW VAD Act (n 8) s 16(1)(e)–(g); Qld VAD Act (n 8) s 11; SA VAD Act (n 8) s 26(1)(c), (e); Tas VAD Act (n 8) ss 12–13; Vic VAD Act (n 8) s 9(c); WA VAD Act (n 8) s 16 (d)–(e).

^[77] NSW VAD Act (n 8) s 10(1); Qld VAD Act (n 8) s 7(1); SA VAD Act (n 8) s 12(1); Tas VAD Act (n 8) s 17(1); Vic VAD Act (n 8) s 8(1); WA VAD Act (n 8) s 10(2).

^[78] See NSW VAD Act (n 8) s 60.

^[79] Qld VAD Act (n 8) ss 62–3; SA VAD Act (n 8) s 65; Tas VAD Act (n 8) ss 89–92; Vic VAD Act (n 8) s 53; WA VAD Act (n 8) s 58–9.

^[80] Rosalind McDougall and Bridget Pratt, ‘Too Much Safety? Safeguards and Equal Access in the Context of Voluntary Assisted Dying Legislation’ (2020) 21 Medical Ethics 38: 1–10: 4.

^[81] Robert Ray and Dominque Martin, ‘Missed Opportunities: Saving Lives through Organ Donation following Voluntary Assisted Dying’ (2023) 53(5) Internal Medicine Journal 861, 862.

^[82] Madi Chwasta and Mary Gearin, ‘Ballarat Nurse Marlene Bevern First Australian to Donate Organs after Voluntary Assisted Dying’, ABC News (online, 22 September 2023) <https://www.abc.net.au/news/2023-09-22/organ-donation-voluntary-assisted-dying-victoria/102881210>.

^[83] Betty Chaar and Sami Isaac, ‘Euthanasia Drugs: What Is Needed from Medications for Assisted Deaths?’, ABC News (online, 20 October 2017) <https://www.abc.net.au/news/2017-10-20/assisted-dying-what-is-need-from-drugs-for-voluntary-euthanasia/9069896>.

^[84] Steven J Philpot, ‘Organ Donation after Circulatory Death following Voluntary Assisted Dying: Practical and Ethical Considerations for Victoria’ (2018) 20(4) Critical Care and Resuscitation 254, 254.

^[85] Ibid; Najat Tajaâte et al, ‘Organ Donation after Euthanasia Starting at Home in a Patient with Multiple System Atrophy’ (2021) 22 Medical Ethics 120: 1–6, 3.

^[86] Ray and Martin (n 81) 863. See also NSW VAD Act (n 8) s 10(1); Qld VAD Act (n 8) s 7(1); SA VAD Act (n 8) s 12(1); Tas VAD Act (n 8) s 17(1); Vic VAD Act (n 8) s 8(1); WA VAD Act (n 8) s 10(2).

^[87] Productivity Commission (Cth), Introducing Competition and Informed User Choice into Human Services: Reforms to Human Services (Inquiry Report No 85, 27 October 2017) 111.

^[88] Ray and Martin (n 81) 862.

^[89] Jan Bollen et al, ‘Potential Number of Organ Donors after Euthanasia in Belgium’ (2017) 317(14) JAMA 1476.

^[90] See, eg, Ann Bunning, ‘Christians Support Compassion and Voluntary Assisted Dying’, Voluntary Assisted Dying South Australia (onine, 6 June 2021) <https://www.vadsa.org.au/christians_support_compassion_and_voluntary_assisted_dying>; Christopher Prowse, ‘Euthanasia in the ACT: Love Does Not Kill Love’, Catholic Archdiocese of Canberra and Goulburn (online, 26 April 2023) <https://cgcatholic.org.au/2023/04/euthanasia-in-the-act-love-does-not-kill-love/>.

^[91] See, eg, Richard Chye, ‘It’s Just Not Right: NSW’s Voluntary Assisted Dying Bill Has Myriad Flaws’, St Vincents’ Health Australia (online, 12 November 2021) <https://www.svha.org.au/news/latest/it%E2%80%99s-just-not-right-nsw%E2%80%99s-voluntary-assisted-dying-bill-has-myriad-flaws>.

^[92] Jasanoff, ‘Rewriting Life’ (n 9) 6.

^[93] Ibid 3.

^[94] DeGrazia (n 26) 119.

^[95] Bhatia and Tibballs (n 1) 1179.

^[96] E Christian Brugger, ‘Are Brain Dead Individuals Dead? Grounds for Reasonable Doubt’ (2016) 41(3) Journal of Medicine and Philosophy 329, 334.

^[97] Alberto Molina-Pérez, James L Bernat and Anne Dalle Ave, ‘Inconsistency between the Circulatory and the Brain Criteria of Death in the Uniform Determination of Death Act’ (2023) 48(5) Journal of Medicine and Philosophy 422.

^[98] See Seale (n 37) 49.

^[99] Ray and Martin (n 81) 863.

^[100] See, eg, Department of Health (WA), ‘Western Australian Voluntary Assisted Dying Guidelines’ (Guideline, 2023); Department of Health and Human Services (Vic), ‘Voluntary Assisted Dying: Guidance for Health Practitioners’ (Guideline, 4 July 2019).

^[101] Jan Bollen et al, ‘Feasibility of Organ Donation following Voluntary Assisted Dying in Australia: Lessons from International Practice’ (2023) 219(5) Medical Journal of Australia 202, 204.

^[102] Donate Life Victoria, ‘Organ Donation after Voluntary Assisted Dying (VAD) in Victoria’ (Factsheet, September 2023) 1 <https://www.donatelife.gov.au/sites/default/files/2023-09/2023-DLV-OrganDonationAfterVAD-Factsheet-FINAL.pdf>.