The continued advancement in technology has cut across all spheres of the economy. The field of medicine has had its fair share of the cake having to incorporate the complexities of science and technology. One such area relates to organ transplantation. It has become possible to save humanity through the transplant of organs from one human to another. However, the process in itself though scientifically possible, remains riddled with several challenges and raises questions bordering on the moral, religious and legal frontiers. This paper essentially takes into consideration the place of the law in relation to the application ofsuch scientific technology. The big question left unanswered remains whether the law should be allowed to stand in the way of medical science saving lives through organ transplantation? This question ought to be examined from a legal point view in addition to due consideration being placed on the ethical undertones involved hence the question whose lives are being saved?
Under the English Law, the parent statute guiding matters of organ transplantation is the Human Tissue Act, 2004 hereinafter HTA. In essence, HTA regulates activities concerning the removal, storage, use and disposal of the human tissue. The objective of HTA is to give guidance from a legal point of view on matters of consent to transplantation of organs in relation to living and dead donors. The main concern from the onset is to regulate issues of consent. In that context, HTA creates offences relating to human tissue management and affords persons some leeway in the management of human tissues. This has become critical especially in the wake of the DNA age where biological information concerning persons can be accessed through gainful examination of one’s tissues. However, this paper’s interest is based on the area of transplantation of organs. This area of the law should be appreciated in the context of the need to balance the competing interests in organ transplantation. While it has often been easy to support technological applications in solving life problems, the deviation in this case lies in the fact that the solution of one problem may as well lead to the creation of another problem. This is because the extraction of one’s organs in order to save the other’s life (read recipient) leaves the donor without an organ (in case of live donors) and hence worse off he was formerly. The consolation often is that the recipient is expected to get better. However, this is equally speculative and depends on medical probabilities. In other words, the world of organ donation has no certainties. At the back of these issues, lie the moral and ethical questions of handling humanity. The fact that it is human beings at the center of attention worsens the situation and puts the stakes even higher. The HTA is thus a creation of the English legal system intended to fill the vacuum that may lead to anarchy in scientific medical application. However, many are the times when the law has been an obstacle rather than a solution. It is on that premise that this paper examines the position of the HTA in relation to organ transplantation.
A plain reading of HTA reveals that the statute allows for the use of tissue for scheduled purposes which are clearly defined in the Act. In addition, it is clear which parties ought to provide consent (appropriate consent) and what procedures need to be followed. While a detailed discussion of the Act is beyond the scope of this paper, the paper shall delve on some of the key aspects which are considered essential in understanding the legal issues on organ transplantation.
Schedule one of the HTA provides the list of purposes for which consent is required. While transplantation remains the most essential in the list, it interestingly tails the list. In the rank of scheduled purposes include anatomical examination, determination of the cause of death or in other words post mortem examinations, establishing the efficacy of any drug and or treatment of the deceased, obtaining scientific or medical information, public display, and research in connection with disorders and or malfunctioning of the human body. It should be appreciated that the Act anticipates a scenario where express consent is obtained from the relevant parties before any of the seven activities are performed.
HTA in essence allows for organ transplantation. From the list, transplantation qualifies as a scheduled purpose for which express consent is required. This, within the realm of organ transplantation postulates a number of factors. Foremost, the law makers appreciate the place of organ transplantation. It is imperatively clear that although considered controversial, organ transplantation is allowed as long as valid consent is obtained. The issue of consent is dealt with in detail in section 2 and 3 of HTA. While section 2 expressly covers consent in respect of children, section 3 covers consent in respect of adults. However, in a brief overview, consent is obtainable or considered obtained from three main quarters. One, consent is obtained directly from the donor where the donor is alive. This is irrespective of the age of the donor. This is to mean and a plain reading of section 2 would attest to that, that even child donors may give valid consent. The second and third quarters upon which consent may be obtained apply to dead donors. In the first case, consent is obtained from the wishes of the deceased expressed in writing. The reading of this provision is to the extent that where the deceased and his relations contradict as to whether the organs should be donated or not, the wishesof the deceased prevail.
However, from practice the wishes of the relations often prevail if not for the reason of avoiding unnecessary confrontation. The third quarter from which consent may be sort is the legalrepresentative previously elected by the deceased to deal with the matters of consent upon the death of the deceased. It is fairly clear what the law anticipated in relation to matters of consent. However, what remains baffling on matters of consent is section 2 which grants powers of consent to a child. This is a seeming deviation from the general character of the English Law. Generally, children are perceived as persons who lack a contractual capacity and hence have no capacity to make decisions. In that context, it is rather hard to reconcile the lack of contractual capacity in normal contracts for children with the power to give consent as to the scheduled purposes.
However, the issue of consent is not cast on stone. The law is ready to incorporate circumstances that are outside the anticipation of HTA. A good example lies in the recent case of CM v The Executor of the Estate of EJ (deceased).In this case, the court sanctioned the use of tissue removed from the corpse with the permission of a coroner. The learned judge observed that the position of HTA was to the extent that where the consent could not be obtained pursuant to section 2 and 3 the matter of consent could be dispensed with. However, the limitation of this application is that such dispensation is limited to a selected class of cases. A clear case of organ transplantation falls outside this class and may not benefit from such dispensation of the law. It, therefore, remains for future debate whether the same leeway can be allowed for purposes of organ transplantation. The law appears to go that direction at least in one respect. This is pursuant the section that allows for minimum steps for the preservation of the organs of a deceased person for use in transplantation while steps to determine the wishes of the deceased are pursued. In essence, this section appreciates the nature of complexities that may occur upon the death of the deceased. It is equally in appreciation of the irreversible nature of some decisions. This approach is seen as being more permissive and embracive of the need to save lives through application of science rather than getting stuck with the need to observe the sacredness of the deceased’ bodies.
Section 33 places premium on the need to protect the life of humanity and respect the sanctity of life. In essence, the section prohibits the donation of organs of donors that are alive and especially where the said organs are fundamental for his life. This section makes its offensive for persons to procure the removal of such tissue from the donor. This approach has been met with resistance given the choices humanity has settled for. The section and indeed the larger portion of the Act equally prohibit the sale of organs and or exchange of organs for a reward. Previously, the law was that organ donation was only allowed in respect of relatives. In that context, for donations to be allowed, the donor and the recipient had to have a relationship. However, the law through the HTA is much more relaxed. While the nuts are still tighter in respect of sale of organs, something still prohibited by virtue of section 33 of HTA, the law now allows for donation of organs without any rewards. This position may have been informed by the need to create room for charitable donations that were unnecessarily prohibited by the older laws.
However, having briefly discussed the HTA, it is instructive to note the relative reluctance of the citizenry to organ donation in the country. It is not clear where the gap falls. On that premise this paper recommends for the exploitation of other alternative systems that are in practice in other parts of the world. More specifically, this paper proposes for the application of either of the following options: the opt-out system or the mandated choice. Under the two, organ donation regime would become much clearer and the legal anchorage may become supportive of organ donation and consequential transplant especially in relation to dead donors.
Under the opt-out system everyone is considered a donor unless he clearly specifies that he does not want to be one. In other words, consent is presumed unless specifically negated. In that context, upon death, the organs that maybe used to save the lives of recipients are salvaged without seeking for appropriate consent.The beauty of the opt-out system is that it creates room for one to specifically outline the option not to donate. The urge not to donate has to be so strong so as to expressly negate the presumption. This approach may fill the gap as it has been observed from the recent statistics that recipients and potential recipients outnumber of the donors hence an overall deficit in organs. The opt-out system can be contrasted to the opt-in system which in essence is the same as the mandated choice system.
Under the mandated choice, it becomes mandatory for citizens to specify whether their organs should be donated or not upon their death. This is duly recorded and upon the death of the citizen, the organs are treated in relation to the recorded wishes of the deceased. This system resembles the opt-in system in that the people who choose to donate their organs opt for the donation; in other words, they opt in. According to statistics, countries that have elected these methods have a more successful and definite organ donation legal regime. In addition, the organ deficit in such countries is lower compared to the deficits in the United Kingdom perhaps suggesting that such legal jurisprudence should find application in this jurisdiction.
In conclusion, while the HTA attempts to offer guidance in a relatively turbulent world, it should not be overly focused on. There is indeed need to consider the stakes at hand. The main goal ought to be and indeed is the need to preserve and save as much lives as possible. In that context, the law must not suffocate the application of science. While the practice of the rule of law remains cardinal, some overriding factors such as the need to save lives ought to be given due consideration. The organ donation regimes such as opt-in systems and the mandated choice are some of the examples that abound.
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