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A new approach to organ donation

The Human Tissue Act 2004 governs the ownership and donation of organs within the United Kingdom. It requires that consent must be obtained from any person whose organs or tissue are to be used or donated, whether or not they are living or deceased. The Human Tissue Act 2004 and its strict provisions regarding consent and ownership arise out of the scandals at Bristol Royal Infirmary and the Royal Liverpool Children’s Hospital (Alder Hey) in 1999-2000 in which it was discovered there was widespread retention of body parts and organs from dead children. This was often done without the knowledge or consent of the children’s parents, or on the basis that they were retaining ‘tissue’ from the children which parents understood as tiny pieces of their child’s body but the term ‘tissue’ in the medical profession was taken to include whole organs.

It is not surprising the government felt the need to react to the scandal and introduce the current legal framework regarding the use and retention of organs and bodily tissue. However, the current legal framework is set to change in Wales after a Bill to adopt a system of presumed consent has passed its final stage in the Welsh Assembly. The new system, set to come into force in 2015, will reverse the current system and presume that people consent to the donation of their organs unless they ‘opt-out’ and say otherwise. The new system has received a lot of support from organ donation organisations such as Kidney Wales Foundation who say it will give hope to those awaiting a transplant in Wales. It is not surprising that the Bill which creates a significant change in such a sensitive area of law, has also received some criticism on the basis that it may cause distress to bereaved families. Religious groups have also raised moral arguments against an opt-out system of presumed consent.

The new system in Wales arises out of concerns over a shortage of organs available for transplant and the fact that many people die each year because of this shortage, some who are on the waiting list for a transplant and others who don’t even make it onto the list. However, some people argue that to refer to a ‘shortage’ of organs suggests that it creates a legitimate expectation that there will be extensive donation rather than organs being received with gratitude and welcomed as good fortune.

If the new ‘opt-out’ system in Wales is successful it will certainly add weight to arguments in favour of changing the current system in England. However, it is unlikely the law will change in England as it has in Wales because of the gravity of the political scandal at the Bristol and Alder Hey hospitals and the pressure the government will feel to ensure the same scandal never happens again.

The big question that really arises is whether there should be a moral obligation placed on all of us to donate our organs or whether we should donate out of kindness and altruism?

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