The law of medicine and in particular ethics relating to medicine is a very controversial and hotly debated topic, particularly in relation to organ donation which society has conflicting views on. Ethics are central to a doctor’s life and practice and are a key part of medicine and medical professionals’ behaviour. As well as trying to treat patients with the best therapy available, the doctor is at all times under an obligation to adhere to high professional and ethical standards.
1The relationship between law and medicine is an interesting one that constantly comes under scrutiny. The law now seeks to regulate malpractice and ethical behaviour of doctors. The removal and retention of human organs and tissue has been a highly controversial matter in Medical Law for decades. 2 This was shown by the Alder Hey and British Royal Infirmary cases in 1999-2000. People were shocked and distressed and largely aggrieved that organ and tissues removed from their loved ones had been retained without their knowledge or consent.
3 As a direct result of these cases in September 2006, a new legislation came into effect in England and Wales, The Human Tissue Act 2004 (“HTA”)4, which is now the primary legislation regulating transplantation. The HTA 2004 deals with issues relating to the removal, retention and use of human body parts and tissue. 5 Part two of the Act set up the Human Tissue Authority who controls all matters concerning the removal, use, storage, and disposal of human material. Certain types of tissue transplantation, such as blood donation and skin grafts have been routinely practised for years.
It is important to note that many lives have been saved by transplantation of regenerative tissues such as bone marrow. Despite the number of lives saved by organ donation, the debate still rages regarding ethical, financial, and scientific and resource considerations of organ donation. 6 The scientific developments in transplantation continue to be amazing and this is largely why this ethical debate has existed and developed. Between April 2009 and March 2010, 3,709 organ transplants were carried out successfully. 7 Live donor transplants have also been steadily increasing every year.
8 Despite the number of lives saved, organ donation has long had a stormy history. Public response to transplantation has often been erratic, influenced by the publicity given to dramatic successes and failures, often emotively playing with society’s views on this topic. Stories describing transplant surgeons as ‘human vultures’ and claims that organs were being removed from bodies before ‘real death’ exacerbated the situation. 9 On the other hand, the media can be used as an effective tool to publicise the benefits of transplantation, which could have led to the increase in the number of people wanting to donate.
10 Even with a success rate the main issue with organ transplantation is supply and demand, therefore we need to analyse strategies of increasing organ donation. Firstly, before we examine the law, we must understand the mechanism of transplantation. The organ must be suitable for transplant; it must be in healthy condition. The donor from who the organ was obtained must be free from any systemic disease and the organ must retain a reasonable ‘shelf life’. 11 Secondly, the organ must remain viable.
In order for a transplant to be effective, the transplant between the donor and recipient must occur within a short period of time. Finally, there must be a tissue match between the donor and recipient, a transplant from a close relative is an optimal choice. 12 The law relating to organ transplantation, as stated above is now governed under the Human Tissue Act 2004. The two main ways which organs are obtained are from live and cadaver donors. For one person to subject himself to an unnecessary procedure for the benefit of another requires courage and altruism.
Live organ donation is where an organ is taken from a live person and given to another. Sections 1 and 3 of the 2004 Act provide it lawful to remove organs from the living adult for transplant with his appropriate consent. Appropriate consent is not defined in the Act but the HTA has set out guidance on consent in two key Codes of Practise. 13 Both the codes emphasise the need for good communication. The donor must be informed of all the relevant information regarding the risks to him and the chances of success.
The donor should be given plenty time to make the decision and receive reassurance that they may at anytime withdraw consent. Section 33 of the Act gives power to the Human Tissue Authority to oversee all live donations. These Regulations need to be read in conjunction with the HTA Code of Practise 2. 14 The section makes it clear; the starting point is that it is illegal both to remove an organ from a living person and to transplant into another. The HTA must scrutinise all live donations to ensure the donor has given a genuinely free consent. 15 Live organ donation raises various ethical issues.
The principal moral issue raised is the fact the provider of the transplantable material is not the intended beneficiary of the procedure, so is the issue of whether we have duties towards ourselves. 16 This has caused a division between moral theories. Right-based and other autonomy theorists reject the idea that a competent individual can commit a wrong to himself. John Harris is an academic who employs this utilitarian view; in his article ‘The survival lottery’17 he suggests that it would be better to let one person die in order to save the lives of two.
This would initially appear to produce a utilitarian benefit, but the impact it would have on citizens in society, who would be in fear that ‘their number is up’ could potentially outweigh the benefit of this scheme. 18 Elliot however rebuffs this idea and argues that endorsing the self-sacrifice of others for one’s own benefit indicates “a failure of courage, a lapse of moral nerve”. 19 This is supported by some duty-based positions which imply that we owe a duty towards ourselves, and so providing an organ for another’s benefit is potentially violating one’s duty to not cause harm to oneself.
They do not accept the removal of life sustaining tissue and organs for transplantation into another. As we can see this clash between autonomy-focused and paternalistic moral theorist have a significant control over consensual organ provision. 20 In addition not all tissue and organ donation can be viewed in the same light as the risks vary according to the person’s physical health and circumstances. The circumstances of every transplant will be different. 21 Although we have seen the number of live donations is rising fast, the majority of organs for transplantation are taken from people who have died.
At common law, a person has no legal power to donate organs from his body after his death; equally nobody has any right of interference with a corpse. 22 Before examining the current law, it would be worth noting what problems the 2004 Act addresses. The doctrine of presumed consent was thought to be a way of increasing organ donation. Here the law would allow organs to be removed for transplant from a deceased unless he/she expressly objected against it. 23 Conscription was another system that was thought to increase organ donation.
Here organs would be removed from dead bodies for transplantation without any need for authorisation of the deceased or any consent from her family. John Harris proposed this radical solution as he believed a dead person has no interests sufficient to outweigh the needs of a patient whose life depends on the transplant. 24 Another option was to employ a system of ‘required consent’. Here the doctors would ask the deceased’s family for consent to remove suitable organs, however this might not work as it would result in undue pressure being placed on families.