The Kerala High Court, on February 10, dismissed a writ petition seeking to review the concept of brain death or brain stem death, a topic that put the medical community in the state at the centre of a raging controversy for nearly a decade. With the order, the bench of Justices A Muhamed Mustaque and P Krishna Kumar put an end to the legal battle on the medical and ethical questions raised in declaring a patient 'brain dead'. Before arriving at the final conclusion, the court chose to check the brain death policies of various countries by putting up a query on ChatGPT, the generative AI chatbot.
The court said that its ‘hands were tied’ as the concept was recognised by Parliament and thus was beyond their scope of intervention. The court cited the 2024 Supreme Court review of Section 6A of the Citizenship Act (2024 SCC OnLine SC 2880), stating that the focus of judicial scrutiny was limited to the legality of the policy, excluding any evaluation of its wisdom or soundness. Further, the courts were not tasked with assessing the efficacy of policies and the Court could not sit in judgement over policy to determine whether revisions may be necessary for its enhancement.
The writ petition was filed in 2021 by Dr S Ganapathy, a 73-year-old medical practitioner, requesting the court to declare the concept of brain death as wrong, unscientific, and a violation of Article 21 of the Constitution. He also sought for the court to declare Sections 2(d) and 2(e) of the Transplantation of Human Organs and Tissues Act, 1994 (THOTA) related to brain death as unconstitutional. Dr Ganapathy argued there is no specific length of time to declare a person as brain dead and that some patients who have been declared brain dead have come back to life.
Dr Ganapathy began his legal battle first with a public interest litigation (PIL) filed at the Kerala High Court in 2017. In the PIL, Dr Ganapathy alleged that doctors in the state had failed to follow proper procedures in declaring brain death. Alleging malpractice by doctors, he said they were declaring patients as brain dead and were then persuading the family to donate the organs to facilitate organ transplantation. He also pointed out that the highest number of brain dead donors in the country were in Kerala.
While closing the PIL on June 28, 2017, the court said, “If any specific case (of malpractice) is brought to the notice of the authorities concerned by anyone, including Dr Ganapathy, then the appropriate authority (Director of Medical Education) would be required to take suitable action in the matter.”
Dr Ganapathy had also filed complaints against two private hospitals in Kochi and nine doctors, alleging that they failed to adhere to the norms for declaring brain death and harvesting organs. The HC, in 2023, quashed the criminal case against one of the hospitals and nine doctors.
Later, a complaint was also filed against Dr Ganapathy for making communal remarks on the topic of brain death. According to the complaint, Dr Ganapathy claimed that no Muslim suffered brain death because hospitals were largely Muslim-owned. He approached the HC again in 2021, this time with the plea to declare the concept of brain death unscientific and a violation of the Constitution.
In an interview given to an online portal two years ago, Dr Ganapathy claimed that the number of deceased organ donations came down after he filed the petition in 2017. The number of deceased donations in Kerala dropped from 76 and 72 in 2015 and 2016 to just 18 and 8 in 2017 and 2018, respectively. A total of 378 deceased organ donations took place during 2012-2024, with last year recording only 11 such donations.
According to health department officials, multiple factors such as litigations and negative social media campaigns resulted in the decrease. Films like Joseph, released in 2018, which dealt with the theme of a nexus involving doctors and hospitals in organ trafficking were criticised by the Kerala chapter of the Indian Medical Association for negatively impacting the deceased organ donation in the state.
However, Health Department officials said that the major setback in deceased organ donation was not public resistance but reluctance on the part of doctors to declare brain death.
“The number of average annual deaths due to accidents in Kerala is 4,300. However, the number of donations from brain dead patients was only 11 in 2024. This was primarily due to the reluctance of doctors to declare brain death following the litigation filed by Dr Ganapathy. In fact, we were not even able to assess whether there is public resistance because doctors are not ready to declare brain death. For them, it is an extra risk and burden in an already stressful duty,” an official from the Health Department said.
During the hearings of the first petition in 2017, the Kerala State Organ and Tissue Transplant Organisation (K-SOTTO) informed the court that cases mentioned by Dr Ganapathy happened before the state government introduced stringent measures for declaring brain death in 2012. K-SOTTO is an apex body that regulates the removal, storage, and transplantation of human organs and tissues in the state. It was preceded by the Kerala Network for Organ Sharing (KNOS), which was set up in 2012 for the effective implementation of THOTA.
The High Court closed the first petition in 2017 after directing the government to take effective steps to avoid medical fraud and malpractices. “The state has a responsibility to protect people from such exploitation. The state would have to take such allegations seriously to avoid medical fraud and malpractice. It would have to take special or extraordinary care in these matters to ensure that hospitals stick to the highest level of medical ethics and follow the law strictly, and any failure or slip in the process or the procedure must be dealt with very seriously,” the HC said.
The Kerala government in 2018 issued a standard operating procedure (SOP) to declare brain death following HC’s directive. Along with the procedures, the government also issued an order to record the entire proceedings on video for more transparency. At present, a panel of four doctors is needed to declare brain stem death, another term for brain death where the brain stem suffers irreversible damage. It should include a registered medical practitioner from the hospital where the patient is admitted, a registered medical practitioner nominated from the panel of doctors approved by the Director of Medical Education, a neurologist/neurosurgeon and the registered medical practitioner treating the patient.
Doctor vs Doctor
Just as Dr Ganapathy’s arguments were being widely discussed, another doctor decided to implead in the case to defend the concept of brain death. Dr Easwar HV, a professor of neurosurgery at Sree Chitra Tirunal Institute of Medical Sciences, Thiruvananthapuram first appeared as a representative of the Kerala Health Department during the hearing of PIL in 2017. Later, when Dr Ganapathy moved the writ petition in the case, Dr Easwar impleaded himself in the case and argued in the court that brain death was medically and ethically correct.
According to Dr Easwar, if a patient is not declared brain dead after the brain's blood circulation and oxygen supply are cut off and if such a patient is allowed to remain in the hospital forever, it would displace the cause of a genuine patient to get treatment with all apparatus and support system. Dr Easwar decided to join the case after realising the fear among medical practitioners in declaring brain death following the complaints and litigations by Dr Ganapathy.
“In a government hospital, the delay in declaring brain death of a patient with irreversible coma might be costing the lives of three critical patients waiting for the ICU facility. In private hospitals, the families will be left with a mounting medical bill as long as the doctors refuse to declare brain death,” Dr Easwar told TNM.
In his counter affidavit, Dr Easwar analysed cases presented by Dr Ganapathy as evidence of patients who reportedly came back to life after declaring brain death. Dr Easwar informed the court that there was no proper evaluation of brain death in one case and the patient was suffering from a neurodegenerative condition in another case. Regarding the case of a woman who delivered a baby after brain death, Dr Easwar pointed out that she never came back to life.
Court uses ChatGPT to research global practices
Ganapathy informed the court that there was a lack of a uniform scientific assessment across the globe in declaring a patient as brain dead. To analyse the global policies, the court took the aid of ChatGPT. While the prompt given by the court is not clear in the order, it said that ChatGPT provided it with the prevalent policies followed regarding brain death in some of the countries. It produced a result of the chat generated on February 5, which carried the title 'Comparison of Brain Dead Policies Worldwide'. It compared the policies of eight countries, including the US, UK, Germany, India, Saudi Arabia, and China. It compared themes such as ‘legal death’ (whole brain, brain stem, etc.), religious exemptions, and organ donation approaches (explicit consent, presumed consent, etc.).
The use of ChatGPT and other generative AI by the judiciary and the legal fraternity is a fraught issue across the world. One of the reasons is the tendency of generative AI applications to "hallucinate" or concoct facts. In 2023, a judge in Manhattan, US, imposed a fine on two lawyers for providing a legal brief with made-up cases generated by ChatGPT.
In India, there are no rules or guidelines either allowing or disallowing the use of generative AI for researching or writing judgements. While courts have gone ahead with using AI for translation and transcribing, Supreme Court judges have pointed out the ethical and legal considerations and concerns about errors and inherent biases in AI for its use in adjudication. Last year the Manipur High Court made headlines when judges used ChatGPT to research a topic related to service law.
"The problem in depending on generative AI chatbots like ChatGPT is that it might hallucinate. They cook up stories and present them as facts. There are mechanisms like Retrieval Augmented Regeneration to overcome such issues. It is always better to ask for sources of data to find out the accuracy of the information," said Prof Asharaf S, Dean at Digital University Kerala
Relying on Aruna Shanbaug case
The HC reviewed the SC order in the Aruna Shanbaug case in the context of euthanasia to understand the concept of brain death. Aruna, a nurse, had remained in a vegetative state for 36 years after a brutal sexual assault. A petition was filed in 2011 by her friend in the Supreme Court, seeking directions to allow her to die. The SC had rejected her petition but also deliberated on the question of euthanasia. The Kerala HC noted SC’s observation, “One is dead when one's brain is dead.”
The court also analysed multiple academic papers, including “Brain Death and Organ Transplantation: Ethical Issues” by Calixto Machado, a Cuba-based Senior Professor and Researcher of Neurology and Neurosurgery, where it mentioned that it was possible to keep a brain dead patient 'alive' for decades with the support of machines. "But the author poses a very relevant question in this regard, i.e., are we preserving a corpse or a human being?" the HC noted.
The court, however, expressed shock over various news reports that appeared on the websites of The New York Post, the Scottish Sun, and People regarding patients who have come back to life after declaring brain dead.
After a review of the material submitted, the HC concluded that it could not intervene in matters decided by the Parliament. " Parliament enacted the THOTA in the year 1994 to provide regulation of removal, storage and transplantation of human organs. It is in that context of the enactment, Parliament defined brain stem death. That means Parliament assumed brain stem death as factually and legally tenable… The Court cannot now enter upon a controversy to define what is brain death or not. Parliament is the only authority to define what is brain death. Brain death in India is recognised through a definite medical procedure. The Court cannot judicially review
Parliament’s wisdom in assuming certain facts as correct for the application of law,” the HC said in its concluding remarks.