A Question of Life and Death
Le Roux-Kemp, A 'A question of life and death' Comparative and International Law Journal of Southern Africa 2013 46(1), 74-89
16 Pages Posted: 12 Mar 2014
Date Written: January 2013
Science and technology have assumed a pivotal role in shaping all aspects of modern society. They are intertwined with wider socio-political issues, and feature in both civil and criminal courtrooms. The law, however, often lags behind in adequately considering scientific and technological advances, social context, and the consequences of technological advances in a multicultural society. This article focuses on the moment of death, defined in the National Health Act 61 of 2003 as brain death. The development of death criteria will be considered, together with contemporary controversies surrounding brain death as the generally accepted death criterion. The pivotal role of social norms in determining the moment of death is discussed with specific reference to Jewish law, Japanese culture, and finally African indigenous traditions. It is argued that while it is important that the concept of death be ‘updated’ and redefined as science and technology provide for new possibilities, and social norms and belief systems change over time, it is only with due regard to societal norms and values that the law can truly give effect to the role of science and technology in shaping all aspects of modern society – including the medical and legal definitions of death.
Keywords: Brain death, somatic death, traditional death criterion, moment of death
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