Next of kin should have final say on organ donation: Deakin research

Media release
24 January 2018

Next of kin should have the final say in the donation of their deceased loved ones’ organs even if the law is changed to create a system in which donation is ‘presumed’ unless individuals opt-out before death, argues a Deakin University health law academic.

In light of recent debate around adopting an opt-out system to boost organ and tissue donations, Deakin Law School’s Dr Neera Bhatia, in collaboration with Associate Professor James Tibballs (University of Melbourne), has evaluated the laws and presumptions around organ donation in Australia and New Zealand.

In a paper published in the New Zealand Universities Law Review they argue that next of kin have legal rights over the bodies of their deceased loved ones and this right should extend to their organs.

Organ donation in Australia currently operates under an ‘opt-in’ system that requires people to register to donate their organs after death. New Zealand has a similar system whereby people can choose to be listed as organ donors on their drivers licence however they do not have an organ donation register.

“While the majority of Australians and New Zealanders agree with organ donation, the gap between the demand for and availability of tissues and organs for transplantation continues to widen,” Dr Bhatia said.

“One option put forward to increase donations is for organs or tissues to be routinely procured after a person dies unless a specific request has been made prior to death not to donate.

“In our recent article we argue that such a system is based on flawed presumptions and, if implemented, an ‘opt out’ would disrespect the legal and ethical rights of the next of kin and denigrate the concept of gifting.

“If such a system was implemented then legislation should include that express consent from next of kin be sought as they should be recognised as having property rights in the organs and tissues of their deceased relatives.”

The researchers believe the presumptions that the deceased person would have agreed to donate their organs before death and that a human corpse cannot be considered property and therefore there is no ownership in the dead body or its organs or tissues are both flawed.

“The notion that consent would have been given by the deceased is a legal fiction and a topic of considerable ethical debate,” Dr Bhatia said.

“In relation to the “no property” principle in common law, this is subject to exceptions. The clearest exception concerns biological matter separated from a dead body undergoing “work or skill” after which the body or part of the body can be subject to property rights.

“In light of this, a deceased body cannot be subject to an ‘opt-out’ system of organ donation without acknowledging the property status in respect of human tissues and organs. Where the deceased person did not consent to donation, legal organ removal must be subject to agreement or refusal by the next of kin.”

The researchers offer a number of recommendations to increase organ donation rates in Australia and New Zealand without introducing an opt out system, including: organ procurement be made on the basis of gifting and undertaken by the next of kin as the recognised legal owners of the organs or tissues; further education programs and engagement with families to encourage conversations about organ donation particularly with indigenous communities and establish an organ donor register in New Zealand.

The article, “The Development of Property Rights over Cadaveric Tissues and Organs: Legal Obstructions to the Procurement of Organs in an ‘Opt-Out’ System of Organ Donation in Australia and New Zealand”, is published in the latest issue of New Zealand Universities Law Review.

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