ABSTRACT
Having surveyed the common law, civil law and sui generis jurisdictional approaches to the subject of human organ or tissue transplantation, it is possible to make a number of observations in the comparative context. First of all, all jurisdictions which have passed laws or regulations dealing with this area, adopt a basic policy of respecting the intentions of the organ donor, whether dead or alive and this reflects the ‘respect for persons’ principle which was identified at the outset of this book (see Introduction). Indeed, criminal sanctions follow from serious breaches of this principle. Secondly, jurisdictions have frequently adopted a ‘contracting out’ policy (presumed consent), but sometimes a ‘contracting in’ policy (for instance, in the case of Germany) with variations. Even where there is a prima facie contracting out policy, as in France and Belgium, the practice of doctors has always been to consult the relatives of a donor before carrying out transplants of any sort (which was also the practice in 1960s America despite their earlier legislation) and, as we have seen, this has now been regularised with the passing of new guidelines. However, when the system is followed strictly, as in Austria, the country seems to do better in organ procurement than other countries, but such a simplistic equation is seriously questioned by commentators because, despite the increase in the availability of organs in Austria, there is still an overall shortage in that country. Thirdly, all the jurisdictions we surveyed require written consent to organ donations/transplants and, in the case of Germany and Sweden, have gone to some lengths to specify exactly who could qualify as ‘next-of-kin’ and could therefore be consulted in the absence of an indication or evidence of the donor’s intentions. An interesting innovation has been the consulting of a person who is not a relative but is either ‘closely connected’ to the donor (Sweden) or even ‘especially close’ (Germany) to the donor. A common feature is a hierarchy in order of seniority for next-of-kin, so that, in Australia and Germany, one works one’s way down the list to contact persons who might cast some light on whether the donor had a view on transplanting of his organs, although Australia has an interesting notion of ‘senior available next-of-kin’. Fourthly, a shortage of organs for transplants to save lives appears to be a fairly universal problem with the possible exception of countries like Spain, and limited success for France and Austria. All the jurisdictions which were surveyed have been making strenuous efforts to educate the population and continue to strive to increase the number of organs that will be available for life-saving purposes. As we have seen in early 2000, however, the latest campaign by the BMA to introduce a contracting out system in Britain has, so far, not met with any success.
