Organ donation and transplantation involve those who have consented towards donating their organs most commonly for the purposes of saving another’s life through transplantation. The National Health Service (NHS) reports between the 1st of April 2013 and 31st March 2014, there were 2466 donors who made it possible for 4655 organ transplants to be carried out in the United Kingdom. However, the number of people waiting for organ transplants is still significantly higher than those who are prepared to donate their organs and even if they do, it is difficult to find a suitable donor whose organ(s) would match the people waiting for transplant. The chronic shortage of human organs mean that getting on to a waiting list can be relatively difficult and about 500 of those who actually make it on the waiting list die each year and approximately 800 are removed due to worsening health rendering them ineligible for a transplant.
Although over the course of last century organ transplantation has overcome major technical implications to become the success it is today, it still remains a risky procedure. Despite the risk, the main motivation for such procedures to be carried out is to save lives by replacing failed organs with the ones that could still function which would otherwise serve no purpose. Since the whole idea of organ donation and transplantation highly involves the bodily anatomy of a person, this idea too raises some legal and ethical concerns about whether such a procedure should exist.
The current statutory Act that regulates issues regarding organ donation and transplantation is the Human Tissues Act 2004. It regulates the removal, storage and use of human tissue from the deceased and the storage and use of human tissue from the living. The Act seeks to make consent a fundamental principle and therefore Section 1 Schedule 1 of the Act requires “appropriate consent” for cadaveric donation which can typically be obtained from the organ card registration or an appointed representative or by asking a person in a “qualifying relationship” (Sections 2 and 3). Unless a qualified medical practitioner reasonably believes that he or she is performing the transplantation procedure with consent or the procedure is one which consent is not required, not obtaining an appropriate consent would result in them committing an offence as provided under Section 5.
When it comes to consent, it is in relation to deceased donors that raise many issues because unless there is an act that involves battery or murder, consent by living donors are quite clear cut. The availability and use of the organs and tissues from the deceased is inevitably closely connected to the ability and willingness of the deceased prior to his or her death, or any of his or her surviving relatives to veto removal.
John Harris has put forward the utilitarian approach, whereby as long as the benefits that organ transplantation offers should outweigh its disadvantages then it should be legally and ethically acceptable. Removing organs from deceased and planting them in those who require them to stay alive could clearly save his or life or health and thereby also benefits their family and loved ones. Other than that, a one-off procedure of transplanting organs could produce substantial financial savings compared to long-term treatment. For example, a kidney transplant would drastically reduce cost and time as well as the patient’s suffering over a regular dialysis. It can therefore be argued that the utilitarian theory is in favour of the duty to donate.
Similarly, the utilitarian approach also states that living donors should be allowed to become donors so long as they are competent enough to do so. Transplantation involving living donors offers many technical advantages compared to those involving deceased donors because living donors are obviously healthier and the timing of transplant can be controlled, thereby allowing the period in which the organs degenerate outside of the body to become more negligible. It also results in better survival rates. Even the right-based and autonomy-prioritising theories tend to support that a competent individual would not commit a wrong to himself or herself. Whilst donating most of the solid organs can pose many risks and side effects, the removal of blood on the other hand carries the least or no risk.
Apart from the “appropriate consent” requirement, Section 33 of the HTA 2004 places restrictions on the removal or use of “transplantable material” from living persons for transplantation. To avoid unlawfully removing tissue or organs from a living donor, the medical practitioner must properly rely on the valid consent requirement or the provisions under Mental Capacity Act 2005. For example, under the 2005 Act, adults are presumed to have capacity to consent, but will lack it if they are unable to make a decision due to an impairment in the functioning of their mind or brain that renders them unable to understand, retain and weigh the relevant information as per to Sections 1 to 3 of the Mental Capacity Act 2005.
It is undoubtedly important to encourage the donation of organs in order to increase both deceased and living transplants. Whilst the English law currently follows the “opt-in system”, an “opt-out” system may be more favourable when it comes to increasing deceased donor transplants. This is because the opt-out system requires the refusal to donate to come from the possible donor prior to death. Unless he or she has opted out of their obligation to donate, he or she will be automatically presumed to have consented to the donation upon death. Respecting personal rights and autonomy, even a verbal objection should suffice as recommended by The British Medical Association (BMA) since 1999.
Many other countries have long ago adopted the opt-out system, such as Belgium, France and Sweden. In fact, the legal position in Wales has recently changed from an opt-in system to an opt-out system following the implementation of the Human Transplantation (Wales) Act 2013 in December 2015. Section 3 of the Act states that adults are “deemed” to have given consent to the removal, storage and use of their organs for transplantation upon their death unless they object, although the said “deemed consent” does not apply to those aged under 16 (Section 6) and adults who lacked capacity for a “significant period” before their death [Section 5(3)(b)].
On the other hand, allowing payment for human organs which is currently unlawful as per to Section 32 of the Human Tissues Act 2004 could be made lawful. This would allow people to sell their organs and thus increasing “donors”. However, while it may seem to not pose any threat to deceased donors whereby the proceedings from the selling of organs would be helpful to the deceased’s family and loved ones, this however may not be the case for living donors. This is because it could go against the whole right-based argument whereby competent individuals will eventually start committing wrongs to themselves especially when in desperate need for money. Furthermore, subjecting organs to commercial dealings would increase the risks of human trafficking and black markets. Whilst the rich are guaranteed to benefit from it, the less fortunate may suffer. Therefore, this step if taken will require a very strict or rather rigid regulation governing it.
Xenotransplantation is probably one of the most innovative ways that can be used to increase organ transplantation, however, it poses high amount of risks to both the patients involved because this procedure is still in its experimental period. It will also raise concerns among the animal right activists. Also, the costly experiment procedures should not outweigh the benefit that xenotransplantation will offer.
While it can be monstrous to compel a living person to donate their organs, it is possible to do so when it comes to a deceased. It can therefore be argued that in order to increase deceased organ transplant the State can adopt a “conscription” system whereby the tissue and organs can be removed posthumously for transplantation, irrespective of any consent or refusal. Under this system, dead bodies and their parts would be treated as public property either indefinitely or for a limited period before what remains is released for burial. This can be made possible by limiting the consent requirement to only living donors. As for “beating heart donors” consent can be presumed at the moment approval for the removal of life support system is obtained.
In conclusion, apart from the said ways, there can be several other innovative ways brought upon. Other informal ways could include public education on the correct effects that an organ transplantation would result in, and that consenting organ donation will not make the doctors to take lesser initiative to save their lives if they happened to be receiving treatments as this is one misconception that affects the public’s will to become organ donors. Furthermore, religious views on organ donation can also be emphasised as many religions seek to “help heal the sick” such as Christianity. Hence, it is could indeed be submitted that the need for innovative ways to increase both deceased and living donor transplants still remains and one of the main ways this could be achieved is by encouraging the public to become organ donors.
