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Thematic Issue: Law and Economics/General

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


Neera Bhatia and James Tibballs

In this article, we examine whether organ procurement of the heart and transplantation contravenes the dead donor rule and Australian legislative definitions of death as an irreversible cessation of the circulation. We contend that this practice upholds a long-held belief that donors of any organs after cessation of the circulation are not actually dead at the time of procurement – principally because of insufficient time lapse between cessation of the circulation and procurement of organs. Moreover, the fact that the transplanted heart functions in a recipient proves the donor’s circulation had never actually ceased irreversibly. Nonetheless, we suggest that this practice may be legitimised by amending legislation to redefine death as an irreversible cessation of brain function preceded by cessation of the circulation and requiring medical proof that the donor’s cortical brain function has ceased function before organ procurement.

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(2022) 45(3) UNSWLJ 914: