Vol 117 No 1201 ISSN 1175 8716

Jennifer Ngahooro, Grant Gillett

Organ transplantation is a high technology medicine, which is used to intervene when the end stage of an illness is reached. However, unlike other medical technologies, organ transplantation depends on the generosity of other people�because without the donation of organs from other people, donation cannot proceed.1

There is a global shortage of organs, but donor rates in New Zealand are among the lowest in the Western World (Table 1). There are currently around 400 people on the organ waiting list, 80% of whom need kidneys. Last year, 19 people died whilst on the list.

Spain - 39.6

Belgium - 25.6

Austria - 24.3

USA - 22.3

Finland - 19.9

Portugal - 19.5

Norway - 17.6

Italy - 15.3

Switzerland - 14

Hungary - 13.8

United Kingdom/Ireland - 13.4

The Netherlands -12.6

Denmark - 12.5

Germany - 12.2

Sweden - 10.9

Australia - 10.2

Poland - 8.1

Greece - 1.0

*Donor per million population

Currently there is much debate regarding the manner in which the procurement (or non-procurement) of organs is being facilitated in New Zealand. Following a private petition, a Government select committee has issued a report on the current situation, with recommendations for change (including the call for law change).

To understand why there appears to be such a great deal of ethical confusion in this area, I examine the current laws of transplantation, and analyse how our current practice interacts with these laws.

The law

According to English law, it has been long accepted that the dead body of a human being does not have an owner, and therefore cannot be the subject of property�a provision designed to stop the desecration, public display, or sale of the dead.2

Although not legally bound by this view, New Zealand courts would likely be cautious about rejecting such a long-accepted approach to the law relating to dead bodies.3

There is, of course, temporary provision of limited rights to enable the procedure of an autopsy, or to be readied for burial. In the New Zealand context, this would also allow for decisions on whether the body can be viewed, and whether it can be held for a short time at a private home or on a marae (Maori meeting house).3

Despite the assertion from Brazier4 that the Human Tissue Act (1964) has endorsed (by legislation) a formal family veto over-riding the deceased’s directives, this is not the case�it is merely the way the Act is interpreted by the National Transplant Team.

Although family may have the right to possession for burial purposes, they are usually not �lawfully in possession of the body’ at the time that authorisation is required under the Human Tissue Act (1964).

Where a medical use in being contemplated, the body is usually in a hospital where, by virtue of Section 2(2)(a) of the Human Tissue Act (1964), the person holding the crucial decision-making powers is actually the person in charge of the institution.3

New Zealand law does not currently distinguish between the bodies of people who are �brain dead’ but are being maintained on ventilators, and the more usual �dead’ bodies, which are not receiving any artificial maintenance of ventilation.5

In the majority of cases, the Human Tissue Act (1964) does not require familial or informed consent for body parts to be lawfully removed for medical purposes. Indeed, Section 3 of the Act (the main provision of current New Zealand law dealing with this issue) states that if the deceased has made a request for donation, the parts may be removed whatever the views of the family.3 Therefore, it is important that the ethics of organ procurement reflect this legal framework, recognises societal attitudes towards individual autonomy, and minimises the harm to donor families by doing so in a way that is both sensitive and realistic.

To obtain organs and tissue for transplantation, a suitable donor must firstly be identified, and secondly, organs must be procured. This sounds simple enough, but the clinical reality is currently fraught with a minefield of obstacles due to the way in which practice has evolved in New Zealand.

Childress6 has identified six different methods of organ procurement used worldwide:

(1) Express intent for donation by the individual whilst still alive, or by next-of kin after death.

(2) Presumed donation.

(3) Routine removal or salvaging.

(4) Conscription.

(5) Abandonment.

(6) Sale.

The only option used in New Zealand is (1), although even this option is being hampered by the practice of �ignoring the express wishes of the individual if they conflict with those of the next-of-kin’�a situation that is arguably unethical.

Although there are many people who make provision for organ donation in their will, this is negated by the fact that procurement normally takes place after brain death, but before heart death�therefore the will reading is too late for identification purposes.

The main method of identifying donors is through the donor section of the drivers’ licence. There are currently 1.1 million people (around 42% of licensed drivers) who are registered as donors. However, as the drivers’ licences are regulated by the Land Transport and Safety Authority (LTSA), simply ticking a box on your licence is only taken as an indication of intent, and not a valid form of informed consent. However the ethical standard for proxy consent (of any kind) is that it should reflect what that individual would have wanted, if (per impossibile) he or she could be asked, and the role of relatives is only to help in ascertaining those wishes.

Therefore, where there is a conflict, the doctors should be guided by the best indication of the wishes of the patient and not those of any other person. Thus, medical practitioners are totally disregarding the provisions of the Human Tissue Act (1964) (and their ethical duty to their dead patient) when they fail to retrieve organs and tissue without the consent of next-of kin.

This unethical stance is given spurious validation by donor information websites when they state �in New Zealand, organs and tissues will not be retrieved if the family has any objection. The family's wishes will always be respected’.

In fact, the official Government website of the LTSA accurately states �in reality, your wishes don’t legally count as �informed consent’, and family members, even distant relatives, can step in and prevent your organs being donated in the event of death’.

One cannot ethically defend this practice, which, in effect, over-rules the individual’s autonomous decision (when presumably in sound mind) and favours the emotionally fraught decision of a relative, made in a time of stress, and often with no or little background knowledge.

It is obvious that we are dealing here with a serious disparity between law and ethics on the one hand, and clinical praxis on the other. The result is to intensify an ongoing problem surrounding the supply and retrieval of organs for donation.

For example:

� An editorial in the Otago Daily Times (in July 2004) has called our low donor rate �strange’, in a reasonable and coherent society with a tradition of mustering support for worthy causes. It states: Our willingness to get behind other national campaigns, such as the call to recycle, or to save power, is in sharp contrast in this area where a person who has been tragically cut short is able to do something which is both generous and good.7

Transplant surgeons are currently calling for a payment of NZ$5,000 to cover costs and ease suffering for live-organ donors. It seems right that donors be recompensed for their expenses, but the idea has also raised concern about financial inducements for organ donation and harvesting.7

� The Health Ministry is considering a proposal to create a new position at The National Transplant Donor Co-ordination Office, to undertake education and advocacy work with the purpose of �beefing up’ donation rates.8

� A group of 1170 concerned citizens lead by Andy Tookey (whose daughter is going to need a liver transplant in the future) has petitioned parliament to examine the donor rates in New Zealand. This has resulted in a report from a Parliamentary Select Committee with recommendations as to future management of organ shortages.9

� The above report (released 2003) has already been criticised by Professor Stephen Munn of the Liver Transplantation Unit on the basis that the setting up of a register will do no more than �bureaucratise’ a system that is not working.

� The Ministry of Health is currently reviewing the Human Tissue Act (1964), and a discussion document is due to be released in the next few weeks.

� A recent retrieval from Dunedin Public Hospital’s Intensive Care Unit (ICU) resulted in a father complaining that the Next-of Kin Approval Form resembled a �shopping list’ and caused distress to the family.

These examples demonstrate that the current system is not working and may be creating unnecessary distress for relatives, but the answer suggested in the Parliamentary Report9 seems to miss the point. It is not the law that is at fault, because our practice, in addition to being arguably unethical, does not follow the law. The New Zealand Retrieval Team always make a concerted effort to give dominance of choice to the patient’s family/caregivers, but in so doing ignore the legal framework and their ethical duty to the patient.

The reason given is to prevent upsetting relatives in times of shock and grief, but that seems to be entirely false to the clinical reality, and merely reflects the discomfort of the clinicians involved in transplant situations. The distress and discomfort (affecting both relatives and clinicians) need to be addressed, which I would argue, can be done in quite a simple manner.

To bring our practice in line with ethics and the law, we should change our approach to the donor’s relatives. We should remember that relatives are not only feeling their way about appropriate behaviour in a life-and-death clinical situation, but are also shocked by their sudden loss, and even sometimes unsure about the way they should show their love and respect for the dead. We can help in this fraught situation by saying something like:

This approach reflects the ethical duty of the doctor�to respect the wishes of the patient, and the law relating to healthy care decisions (which endorses the wishes of the patient as non-substitutable by any other wishes whatsoever). It also normalises the consent to donation, and lessens the emotional burden of decision on the relative.

That simple change in approach would, we believe, increase our donor rate and take a lot of the feelings of guilt and responsibility away from all of those concerned. By not changing, we are neglecting the patient’s right to autonomy in over-riding the intent signalled on the drivers’ license.

Indeed, it seems clear that the culture of fear and horror, perhaps generated from an aura of scavenging and body-snatching, shouldn’t be allowed to eclipse the clear wishes of everyday New Zealanders to help each other in mortal crises.

There is obviously a clear-cut ethical and legal case for a change of practice in organ donation. While legislative or other official change is unnecessary, we need to recognise that our practice must reflect (both the law and our ethical duty in the light of the psychological) realities of death and organ donation.

We must also educate the public in a nationwide campaign. This campaign should clearly state that when the organ-donation decision has been made, relatives have no valid role in overturning it (except in very special considerations). Clinicians should then follow both the letter and spirit of the law�obeying the voice of the individual as a final act of compassion, instead of a last lament for a lost opportunity.

Author information: Grant Gillett, Dunedin Hospital and Otago Bioethics Centre;

Jennifer Ngahooro, Otago Bioethics Centre, University of Otago, Dunedin

Correspondence: Professor Grant Gillett, Dunedin Hospital and Otago Bioethics

Centre, Dunedin School of Medicine, University of Otago, PO Box 913, Dunedin.

Fax: (03) 474 7601; email: grant.gillett@stonebow.otago.ac.nz

1. Prottas, J. Organ and Tissue Procurement: Medical and organisational Aspects. In

Encyclopaedia of Bioethics (Reich WT, ed). New York: Simon & Schuster; 1995, p1852-6.

2. Skegg PDG. Medical uses of corpses and the �No Property Rule’. Medicine, Science and Law.

1992; 32:311-8.

3. Skegg PDG. The removal and retention of cadaveric body parts: does the law require parental

consent? Otago Law Review. 2003;10: 425-43.

4. Brazier M. Organ retention and return: problems of consent. J Med Ethics. 2003; 29:30-3.

5. Skegg PDG. The edges of life. Otago Law Review. 1988; 517:520-5.

6. Childress J. Ethical and legal issues regarding cadavers. In Encyclopaedia of Bioethics

(Reich WT, ed). New York: Simon & Schuster; 1995, p1857-65.

7. Charteris R. Donating organs. Otago Daily Times Editorial, Dunedin, New Zealand; 2003,

1 July, p2.

8. NZPA. Proposal could increase transplants. Otago Daily Times, Dunedin, New Zealand;

2003, 9 April.

9. Petition 2002/25 of Andy Tookey and 1,169 Others. Parliamentary Health Select Committee.

Wellington: New Zealand Government; 2003, p1-10.