A new organ donor bill is ethically questionable

If a proposed new law is passed, after you die your organs can be removed from your body for medical purposes unless you expressly say beforehand that you do not want this to happen. Consent is otherwise assumed. As usual, the law is going through the various parliamentary stages without proper debate, even though the proposal is ethically questionable. An Organ Donor Register, instead, should be established.

The proposed law is called the ‘Human Tissue 2022 Bill’. It covers issues such as the donation and transplantation of organs from deceased persons.

At present, an opt-in system exists. This means that only those who have expressly declared their intention to donate organs after they die will have them removed from their bodies, and even then only with the final approval of the family.

The new regime will mean consent is assumed, although final authorisation from a designated family member will still be needed.

The proposed regime is motivated by the good intention of addressing the problem of a shortage of organs for transplant in Ireland, but it is still ethically questionable as donation should arise only from an informed and deliberate decision on a person’s part.

Presumed consent is based instead on the assumption that we are all aware that our organs are available for transplantation upon death and we are happy with that. But what is this assumption really based on?

The HSE’s own consent policy says: “Consent involves a process of communication about the proposed intervention in which the person has received sufficient information to enable them to understand the nature, potential risks and benefits of the proposed intervention”.

It is very unlikely that the new system of presumed consent will meet these criteria.

To make the new system more ethical, patients should be explicitly asked to express their opinion on the matter when attending a hospital or their GP. This will prompt awareness and provoke conversation about donation, which must remain a choice freely and explicitly made and not assumed. Taking without asking is not giving.

As suggested by the Irish Kidney Association, there should be an Organ Donor Register, where all wishes – to opt in or out – are explicitly recorded. “Knowing that a loved one had proactively recorded their wish to be an organ donor makes the family decision to consent a much easier proposition”, a representative of the Irish Kidney Association told the Oireachtas.

What is positive in this new Bill is that it is not inspired by a principle of absolute bodily autonomy of the patients, but it requires the involvement of their families, who could even overrule the decision of the deceased and veto the donation.

There are many reasons why the ultimate word should be with the families rather than with the individual.

While it is important to honour the wish of the deceased, we need to consider that personal decisions affect others, particularly the family. Some cultures place special importance on respecting the integrity of the body after death. Moreover, when organ donation happens against the wish of the family, they might refuse to cooperate, or their discontent could also affect the work of the health-care staff.

A proper ethical system in this area should follow two basic principles: explicit (not presumed) consent from the individual, and approval from the family following the death of the person. The second principle is still followed, but not the first and more important one.

Photo by Robina Weermeijer on Unsplash

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