The Organ Donation (Deemed Consent) Act 2019 became law on 15th March 2019 and introduces a new system of organ donation for England. The new law in England will be implemented in Spring 2020 and the ‘opt in’ system will be replaced by the ‘opt out’ system (often referred to as deemed consent), although the exact date of the implementation is yet to be confirmed. Organ donation cuts across various areas of law including medical and family law. Given the complexity of organ donation, there are a number of issues that deserve further attention as this blog argues.
What is organ donation?
Organ donation is the process when a person gives/gifts an organ to another in order to save or enhance the quality of that person’s life. Whilst most donations come from those who have died, there are some cases of living donation. There are two types of living donation that include the following: (i) donation to a person that is known to the donor such as a family or friend which is also known as ‘directed donation’ OR (ii) to a person unknown to the donor which is also known as ‘non-directed altruistic donation’.
The most common type of transplant is a kidney transplant. According to NHS Blood and Transplant, three people die every day in need of an organ transplant. Of course, the success of a transplant depends on various factors not least the patient’s specific medical condition. However, the current shortage of organs means that there are more people on the register for organs than organs available. Waiting times for a deceased kidney donation ranges from about two to three years on average. The new law seeks to address this shortage and encourage people to consider becoming a donor.
The change in the law in England
In 2008, the Organ Donation Taskforce produced a report with 14 recommendations in order to address the barriers to organ donation. The law in Wales already changed in 2013 with the enactment of The Human Transplantation (Wales) Act 2013 which introduced ‘deemed consent’, and was in force on 1 December 2015.
The Organ Donation (Deemed Consent) Act 2019, also known as ‘Max and Keira’s Law’, amends the Human Tissue Act 2004 and stipulates that everyone in England will be deemed to have consented to donation. The law applies to everyone in England apart for those who fall within one of the excluded groups. However, persons who object to having their organs donated when they die, can opt out. They can do this by either registering their views on the organ donation register and/or by making their views known to their family.
A range of views
The aim of the ‘opt out’ system is to increase donor rates. However, organ donation will continue to be a complex issue because it concerns people’s bodies, beliefs and families. Organ donation is a key issue in other countries too. There are different systems regulating organ donation across the world. For example, Spain’s ‘opt out’ system has been considered as a model for other countries. The US and Germany, on the other hand, adopt the ‘opt in’ model where citizens must explicitly choose to donate. Whereas, Israel has a ‘points-based system’ which essentially means that if a person registers their willingness to become a donor, then they are given priority in case they themselves are in need of an organ. The rationale is that the altruistic act of volunteering to donate is rewarded.
Many people consider organ donation to be gift. The new system in England does not seek to force people to donate, rather it seeks to change the general presumption in favour of donation. For some the system of opting-out is controversial. Arguments against the ‘opt out’ system include concerns about obtaining consent, the potential reduction of personal autonomy and related complexities of feasibility in practice. However, there is a general consensus that the most important factor is that an individual’s right to decide and their body are respected.
In sum, there are a number of on-going issues that are worth considering. Firstly, research has shown that donation rates are lower amongst BME communities who have higher rates of need for organ transplant, therefore, this is an area where further work needs to be done. Secondly, there is a need for more public engagement and discussion ahead of Spring 2020. Thirdly, since the closure of the UK Donation Ethics Committee, there is a need for a new forum in which ethical issues arising from organ donation can be addressed.