Let's not opt out: kidney donation and transplantation.

Abstract

In his long and well-argued paper in the Journal of medical ethics1 lawyer Ian Kennedy per suasively and attractively deploys arguments in favour of changing the Human Tissue Act2 from the present two tier form to an 'opting out' system. The foundations from which he launches his arguments appear at first sight to be impregnable; firstly, there is the ambiguity of wording in the Act which for many years has tantalised lawyers and doctors concerning the interpretation of such terms as 'reasonable' and 'practicable'; secondly, the fact that the law is really a compromise, containing an 'opting in' clause (allowing organs to be removed if the donor has given permission thereto during his life) but also giving the option to the relatives to object if no permission has been given. This com promise seeks to avoid conflict with groups opposed to transplantation, and may give the wishes of the spouse and relatives priority over the interests of patients dying with renal failure; his third, and most contentious, claim is that an 'opting out' principle would significantly improve the supply of donor organs for people with renal failure who need them. I do not intend to take issue with Kennedy on the legal analysis of the law which he has represented, but I do wish to put an opposite view: that I believe the law should not be changed to an 'opting out' principle. The reason is that, although changes might seem legally desirable, the present law is in fact sufficiently unrestrictive to allow legally sanctioned removal of organs from people who die in hospital; and more important, the supply of organs for transplantation would not be significantly increased by changing the law to an 'opting out' principle. To develop this argument in a short article it will be helpful to describe the participants in the act of transplantation, their medical and other professional representatives, their roles and their rights. The rules which are now generally recognised concerning transplantation will be described, and the relative unrestrictiveness of the law in the United Kingdom will, hopefully, be demonstrated. The kidney donor The donor is a person who has been admitted to hospital, has suffered brain injury, and his doctors have certified death. Because of the technical requirements of kidney transplantation, patients who suffer permanent cardiac arrest before arriving at hospital, or who have kidney disease or cancer cannot be considered as suitable donors; the com monest conditions which lead to a person being suitable as a kidney donor are those which lead to brain death with persistent survival of the heart and circulation with consequent normal function of the other vital organs such as the kidneys and liver. Such patients are maintained in a state of physio logical stability by artificial ventilation. By the time that the transplant surgeon is brought in by the donor's doctors, the decision has already been made to switch off the ventilator, since death is certain.