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Ireland: Organ donation — the controversy continues

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http://www.imt.ie/opinion/2011/06/organ-donation-—-the-controversy-continues.html

Organ donation — the controversy continues
John Savage of Beauchamps Solicitors examines the merits of an ‘opt-out’ system for organ donation and the legal issues that might arise if it were introduced.
It has been reported in the media that a Chinese boy recently sold one of his kidneys for the equivalent of €2,378 to buy an iPhone and an iPad.
Shortly, a British woman will donate her womb to her daughter, who was born without reproductive organs — the transplant will be carried out in Sweden. Living donor transplants are now commonplace. The whole area of organ transplants is an ethical and medical minefield, but there is still a major shortage of organ donors in Ireland.
In April of 2009, the Government consulted on proposals for a Human Tissue Bill on regulating the removal, retention, storage, use and disposal of human tissue from deceased persons. It also consulted on consent for the use of donated tissue from living persons for the purposes of transplantation and research. The report was published in August 2009.
The Department of Health also examined the case for ‘opt-in’, ‘opt-out’ and ‘mandated choice’ systems of consent for organ donation. Mandated choice is the approach where people would be required by law to state a choice. After this consultation, legislation to deal with the issue was expected, but nothing has happened.
The current Programme for Government contains a commitment to change the process around organ donation to an opt-out system for organ transplantation, rather than the current opt-in system. Opt-out is a controversial approach. Unless specified otherwise, your organs are assumed to be available for donation — you have to choose to opt out. However, there is no question of organs being taken without the consent of the family.
At the launch of Organ Donation Awareness Week in March 2011, Minister for Health Dr James Reilly said: “I do want to make it clear today that I see the opt-out proposal as merely a way of starting a conversation. The express permission of the family is crucial. No organ removal will ever happen against the wishes of a family. Full stop.”
Full consultation
Full consultation will take place with the next-of-kin of all those whose organs might be harvested and it is hoped that by introducing an opt-out system, it will be easier for all those involved, including doctors and families, to begin what is a very difficult conversation. The Department of Health is currently working to finalise the proposals.
In Spain, the implementation of ‘presumed consent’ has not resulted in an increase in organ donations. In Ireland, it is proposed that there will be a ‘transplant co-ordinator’, who will liaise with the family to get their consent. This will be a useful development, but the co-ordinator’s role has to be carefully thought out and it has to be part of a new overall approach.
If the co-ordinator is parachuted into the care of a loved-one when their condition is at its most critical, no matter how sensitive the approach made, it will cause great distress to the families.
The key to increasing organ donations is for intensivists and other physicians treating potential donors to become more engaged in the process.
They are in a unique position of trust with the families and the primary duty falls on them to start the conversation about organ donation.
While principal responsibility is to care for their patients, they are ethically obliged to consider other patients whose lives might be saved by organ donations.
Payment for organs
A shortage of organs for those in need has precipitated a lucrative market for the purchase from living donors. Payment for organs is illegal here and in most countries. In the United States, federal law prohibits the sale or trade of organs. Nevertheless, people travel to the donors’ homelands (mainly India and China) for transplantation. These donors are being exploited and the extractions of the organs often result in significant complications for the donors.
The recent EU directive on quality and safety of organs intended for transplantation 2010/45/EU was adopted last year and must be enacted into Irish law by August 2012.
It says that available organs should be able to cross borders without unnecessary problems and delays. The Directive acknowledges that several models of consent to donation coexist in the EU and it does not specify the adoption of any particular model.
Under the directive, organ donation must be voluntary and unpaid. However, compensation may be paid to refund the expenses and loss of income related to the donation. This must avoid any financial incentive. Member states are prohibited from advertising the need for, or availability of, organs.
The future
Public policy dictates that people cannot sell their organs, since generally only the most vulnerable in society will resort to this. However, we are in a world where suicide and assisted suicide is becoming more acceptable and being legalised, transplants from living donors are common and where, in some countries, people are paid for donating their blood. We are perhaps only a small step away from permitting people to sell their organs.
To increase organ donations in Ireland, at the very least we urgently need a nationwide register of those who have chosen to donate their organs. The opt-out approach will only work if it is part of a co-ordinated and comprehensive process that involves all those who care for potential donors, but which is led by their treating physicians.
John Savage is a Partner at Beauchamps Solicitors. Contact: j.savage@beauchamps.ie

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