The gift of life is a choice not a requirement

June 6, 2005

Dr. Sheila McLean

THE CASE: Tom is suffering from kidney failure, and is in desperate need of a transplant. His extended family agree to be tested to find out whether or not they are compatible. His cousin, Jim, turns out to be a suitable donor and at first agrees to give one of his kidneys to save Tom's life. However, after thinking about it, he changes his mind. Tom wants to obtain a legal order requiring him to donate the kidney. Jim is ostracised by his family because of his refusal to donate.

THE DISCUSSION: Strange as these facts might appear, a case of this sort did arise in the US some years ago. Essentially, the court ultimately held that although we might disapprove morally of the cousin's refusal to donate the kidney he could not be legally compelled to do so.

In the UK, donation between living people is covered by various pieces of legislation. Until the passing of the Human Tissue Act 2004 (which covers England, Wales and Northern Ireland), the situation was the same throughout the UK. Living donation was covered by the Human Organ Transplants Act 1989, which permitted donation between those who are genetically related. An offer to donate from a non-related person required the approval of the Unrelated Live Transplant Regulatory Authority (ULTRA). The reason for requiring ULTRA to make the decision in unrelated cases was purportedly that the motive of unrelated donors should be carefully scrutinised, probably because the legislation itself was a response to the purchase of kidneys from poor immigrants (a practice which is now illegal).

The possibility of altruistic donation from unrelated donors appeared to have received short shrift from legislators at the time. Many have suggested that the law, however, had the converse effect to that which it intended: after all, as we have seen from Jim's situation, there may be more pressure associated with donation within a family than there is from outside it. That is, a sister, say, may feel enormous pressure to offer an organ to her sibling because of the ties of emotion that generally bind families together. Whether or not her choice is really "free" then must be moot.

Cases of this sort, however, raise issues beyond the purely legal. Modern medicine has the capacity to place people in a situation which would previously never have been contemplated. Advances in prenatal care, for example, have already raised the suggestion that women should be compelled to act in specific ways to protect their foetuses, even if this requires intervention in their own bodies or lifestyle. Similarly, the fact that someone can now be tested for compatibility with another, lends some weight to the instinct that they should be willing to help that person stay alive, even if there is some risk to themselves - and the lower the risk the more the pressure. For example, while donating a kidney means that - should the remaining kidney fail - the donor might him or herself become seriously, if not terminally, ill, the donation, say, of a small piece of a liver would be unlikely to have such serious consequences.

Thus, although it is generally accepted that we have no duty to rescue another person, medicine's capacities may well mean that those who refuse to do so will be morally, if not legally, criticised. This is an unexpected, perhaps unwelcome, side-effect of the otherwise valuable organ transplantation programme. Quite what view the Scottish Executive will take of live organ donation will not be unveiled until the new legislation - which is expected to be on the statute books next year - is published, but clearly an important concern must be the removal of coercion from the equation, perhaps mandating more use of unrelated but compatible donors, and more enquiry as to the pressures associated with donation within families.

Copyright © 2005 Scotsman.com.

This article posted July 19, 2005.