ABSTRACT
As we have already seen in Chapter 8 (on the English law of this area), there are several ethical principles involved in this area of medicine and law. The key principles are consent (which needs to be ‘informed’; however, this term may be defined or interpreted), autonomy and self-determination, confidentiality, beneficence (if one takes an altruistic view of organ donation – that is, to benefit someone), and respect for persons, whether dead or alive (through ascertaining whether consent was obtained or would have been; making sure that relatives or persons close to the donor (if deceased) consent to the organ removal). Of course, if the donor is a child, or where the potential donor has never expressed a view on donating her organs, there is usually proxy consent on the part of the child’s legal representative, or relevant, designated or appropriate person who has a legally meaningful relationship with the donor (such as a next-of-kin, but also including a cohabitant in certain legislation), respectively.
As we have already seen, the pattern in most jurisdictions that we have examined is that there are two systems dealing with the obtaining of organs from deceased persons: the ‘contracting in’ or ‘opting in’ policy, where explicit consent has to be given, so that deceased persons expressly declare before death that they approve of such removal, or an appropriate family member expresses approval of removal in cases where the deceased left no statement or other evidence to the contrary; and the ‘contracting out’ or ‘opting out’ policy or presumed consent system. In the latter type of system, consent to removal of organs for transplantation from cadavers is presumed, unless those persons stated their objections while alive, or where others who were closely related or connected to them stated at an appropriate time that they objected to the deceased’s body being so treated. For both systems, any objections that have been expressed will prevent removal of organs for transplantation.
