The enactment of the HTA 2004 has, for now, ruled out the reforms of the above. The controversy in organs being retained for research and education purposes without consent created a climate in which new laws seeking to endorse an element of coercion was not welcomed with support. This resulted in consent26 being the fundamental condition for all cadaver donations. When the deceased has made his own decision about donation of organs after his death, the Act states that this consent alone is sufficient to authorise the transplant team to take his organs.
So the objections of his/her family are irrelevant. However the problem here is that the Act does not prescribe any formalities to govern post-mortem donations for transplant. There is no requirement that consent should be in writing, therefore extra-legal measures must be used to ensure easy access to the donor's information. In cases where it is difficult to find information about the donor, Brazier and Cave27 state that widower's compassionate sentiment should not override the gift of life by the deceased. There are two ways in which organs are obtained from cadaver donors.
The first is from heart beating donors. Here the patients are placed on a ventilator in hope that treatment may prolong their lives. 28 Being on a ventilator ensures theirs organs are kept in optimum condition for organ retrieval. Patients on a ventilator are said to be brain stem dead when organs are removed, but not legally dead when ventilated. Ventilation enables the patient to become a potential organ donor, but it does not confer any benefit to him. 29 Therefore the issue is whether is elective ventilation should be lawful?
There is nothing in the HTA 2004 expressly authorising elective ventilation and when a patient is transferred into intensive care he/she might not be in a position to give consent, so any transfer of organ is unlikely to be judged in the donor's best interest and may not be compatible with s. 4 of the MCA 2005. 30 Brazier and Cave however suggest that 'if we expressly requested elective ventilation to bolster our wish to be organ donors, then the procedure does… become something done in our best interest? '31
The second way is from non-heart beating donors. Here the donors' heart would have stopped and death is determined by the traditional cardio-respiratory criteria. Any organs for donation need to be rushed to the recipient as lack of oxygen to the organs causes them to decay. Section 43 of the Act allows hospital and other relevant authorities to take steps to ensure the preservation of parts of the body for transplantation. This can be done lawfully by the use of cold perfusion to preserve the organs until consent can be shown or obtained.
A discussion of the ethical issues involved in the acquisition of organs from dead donors is required. A system of conscription overrides any moral interests of the deceased or their loved ones by duties to assist those in need of such material. 32 A 'presumed consent' system attenuates any moral claims by duties owed to those in need of cadaveric material. Utilitarians will require the costs of the regulatory requirements to be low relative to their benefit. 33 Cadaver donation benefits the recipient by saving his life, and also benefits those who care for the recipient.
Also a successful transplant produces long term financial saving compared to long term treatment for failed organs. 34 This balance of costs of removing the organ to the infliction of anticipatory worry on prospective providers, to the infliction of emotional harm on the surviving loved ones would seem to allow utilitarians to be supportive of a duty to donate organs from dead donors. 35 As creditable as the idea of presumed consent may at first appear, many oppose it. Some argue that such an approach might lead to general suspicion and a lack of confidence in transplantation procedures.
36 'Consent' and 'autonomy' are considered to be essential concepts of medical law, but both may be overridden should legislation be passed in favour of 'presumed consent'. Britain is a multi-cultural country and not all faith groups support the concept of organ donation, in fact some cultures are strongly opposed to it. If 'presumed consent' were to be brought into the law then a very expensive publicity campaign would be needed in the interests of religious/cultural equality and harmony. 37 In Singapore (a country which operates presumed consent), Muslims are automatically 'considered to have dissented' on grounds of religion.
If every faith in the UK had its own unique rules, the system would be unmanageable and the country perhaps left with less donors rather that more. 38 However, virtue theorists are likely to see a decision to donate organs as virtuous. An honourable person would save the life of another where it poses little cost to himself. Other theories within rights based and duty based are likely to span a full range of views, but many moral theorists accept the existence of positive duties to assist those in need. 39
We must now analyse ways in which organ transplantation can be increased. Harris and Erin propose a strictly regulated and highly ethical market in live donor organs and tissue. 40 Only citizen's resident within the union or state could sell into the system and they and their families would be equally eligible to receive organs. There would be only one purchaser, an agency like the National Health Service (NHS), which would buy all organs and distribute according to some fair conception of medical priority. However, the HTA 2004 bans payment for live and cadaver organs.
41 Also Harris and Erin proposal would not benefit the poor. Mason and Laurie question whether commercialism and altruism are irreconcilable values. They ask why a person is allowed to risk his brain in a boxing ring, when another is barred from selling his kidney. 42 If we really cannot reconcile a way to introduce payment for donation then perhaps persuading people in other ways such as campaigns to change the way society look at donation, to raise awareness of the importance of carrying donor cards and giving people adequate information on the subject.
43 Also ways of registering could be made easier, this has already seen an increase in the number of donors for people seeking car licences and Boots 'Advantage Card' as gaining these cards asks the person whether they would like to register. 44 However the disadvantage of this scheme is that there is no room to record one's refusal, nor is there any incentive to actually sign-up to the list. Also the idea of presumed consent i. e. that one is willing to be a posthumous donor unless on has previously registered an objection.
This applies elsewhere in Europe but was rejected by the UK Organ Donation Taskforce. 45 Belgium, Italy and Greece have all seen the number of organs for transplant increase when this system was used. 46 The Belgian model is worth investigating as they implemented the law in one region of the country and not universally. In the region where 'presumed consent' was employed, the supply of organs rose sharply. 47 However is must be noted that no country with a 'presumed consent' system has yet managed to supply enough organs for all its citizens.
Iran pays cash for kidney transplants49 and has wiped out its waiting list so would this be a viable option? Prima facie the issues would be same as above with those unable to pay being left at a disadvantage and cash strapped people doing it for the money which could be dangerous to their health. Also there is an epidemic of obesity in the UK today which results in diabetes and subsequently kidney failure. In addition, an increase in 'hard-living and hard-drinking', results in young women, in particular, developing serious liver disease 20 years earlier than medical experts would expect.
In the light of this, a system of presumed consent would make only a small dent in the organ transplant waiting list and it is to be questioned whether such a significant reduction in autonomy, so valued in our society, can really be justified by the end result. No matter how praiseworthy those who campaign on behalf of presumed consent may be, their energies would be better spent tackling the overwhelming shortage of organs in another way, either by promoting a healthier lifestyle or by redressing an imbalance of resources in the transplantation system.
Alternatively other benefits such as lifelong medical insurance for those that donate an organ could be offered as an incentive to donate. In an ideal world we would like everyone to be altruistic and donate organs by their own good will; this could be achieved by educating young people in schools. Another possibility would be xenotranplantation, however this method has vast amounts of problems associated with it. The major concern here is with regards to the health of the recipient, lethal diseases may develop when an organ from non-human is transplanted into a human.
In conclusion the single most important issue in the context of transplantation is to find means of ensuring an adequate supply of organs. This continues to be the case even with the implantation brought under the HTA 2004. More controversy may arise now that 'face' transplants have occurred in UK and France and this could re-kindle more general concerns about this area of medicine. New possibilities of extending live donor transplantation in medicine will have to be explored.
The development of techniques to transplants parts of organs rather than whole organs will increase the utility of live donations. It may not be possible to reconcile payment and donation as this could cloud someone's judgment and coerce someone into donating an organ because of their financial situation. However, people could be encouraged to donate in other ways. So does the law need reform? The Royal College of Pathologists welcomes the decision announced in the Report of the Arm's Length Body Review to abolish the Human Tissue Authority.
50 The reasoning behind it is that it is seen as 'economically sensible'. Abolition of the Human Tissue Authority will require a change in the law which the College hopes will allow the Government to take the opportunity to amend the legislation covering human tissue use, in accordance with the recommendations of a Parliamentary Select Committee in 2007. 51 It may be the case that the law in this area develops in the near future and it will be interesting to see what ethical view it takes.