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Organ donation and autonomy

Perhaps not everyone is familiar with Chris Klug. He is a professional snowboarder and, in 2002, became the first person to win an Olympic medal after undergoing a liver transplant 18 months earlier. This organ donation gave him a second chance at life.

Lately, organ donation featured prominently in the media with promising changes in legislation that the deceased’s wishes will not be overridden by the deceased’s surviving relatives. Is this news welcoming?

Organ donation is the removal of tissues from the human body of a recently deceased person or from a living donor to a recipient. Presently, a donor card is not legally binding, which is quite unfortunate since the deceased’s relatives can veto the deceased’s wishes quite easily. This is because relatives’ views are taken in consideration and, where a conflict between the donor’s request and the relatives’ wishes arises, the hospital tends to abide by the latter’s wishes (M.N. Cauchi, K. Aquilina and B. Ellul, Health, Bioethics And The Law [MUP Malta 2006] p 110).

The present situation reflects the situation in England. Under England’s Human Tissue Act 2004, a distinction is made between the terms “lawful” and “obligatory”, in the sense it is lawful to take the appropriate organs where consent exists (such as in the case of our donor cards), however, and this is where the crux of the matter lies, it is not obligatory to do so, that is, if the deceased’s relatives object to such organ donation; notwithstanding the deceased’s wishes, the surviving relatives will be able to override it.

Is this line of action correct, given the fact that if the donor was alive such person would have had full and complete autonomy? Therefore, does autonomy end with death? Autonomy should not end with the death of the person, thus, the deceased’s wishes should be fully respected since such a person would be exercising full autonomy when s/he decides to donate his/her organs after death.

But does organ donation occur always after death? Or can someone donate certain organs even while still alive, that is being a living donor?

The most common and perhaps the most widely known type of organ donation is the one that occurs after death. This type of organ donation is divided into two branches: the non-heartbeating donors and the ones who are put on elective ventilation. The first is the one where the donors for example die of cardiac arrest or in an accident, or those declared dead on the spot. The second is where a person is electively ventilated to make sure his/her organs would remain suitable for donation.

However, a third type of organ donation is the one carried out on living donors, that is, where the donor is a healthy living person. In the United Kingdom, the waiting list for organ donation has increased dramatically and a huge gap between supply and demand exists. Therefore, this is the reason why it is imperative and of critical importance that the surviving relatives respect the wishes of the deceased in having his/her organs donated.

Organ donation is a delicate subject and one must reach a balance between respecting the donor’s autonomy, the organ recipient and the immediate family.

This is so especially in cases where the donor is still alive. In the case of an organ donation by a living donor, such as in bone marrow donation when a child is involved, the legal test is always what is in the best interest of the healthy child (Department of Health, Reference Guide To Consent For Examination Or Treatment’ [Department of Health, London March 2001] p 19).

An adult donors’ decision is based on autonomy. Especially if such an adult is a living donor his/her decision is respected. But what about the child? What if a healthy child wants to be a donor to his/her sick sibling?

Child donors should always be part of the decision-making process. Their inclusion in decision-making and their cooperation in donating an organ might avoid the negative effects there could be if an organ has been donated against one’s will. Competent mature children usually accept the risks, especially when the benefits significantly outweigh the possible negative effects (L Friedman Ross, Children, Families And Health Care Decision-Making: Issues In Biomedical Ethics [OUP, Oxford 2002] p 68).

Unless they become legally binding, organ donor cards are of little value, if any, when surviving relatives disapprove. In an item entitled Organ Donors’ Wishes To Be Respected Even After Death, The Times reported on January 19 Health Minister Joseph Cassar declare that surviving relatives would soon stop being able to veto the deceased’s wishes, thus upholding the deceased’s autonomy to be able to make decisions, which would still be valid even after death.

This is certainly a positive and welcoming change.

[email protected]

Dr Mangion is a lawyer and a published author with a special interest in family and child law.

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