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Legal Articles


Life, Death & Donation - Organ Donation


One of the hardest decisions any family faces is being asked to authorise turning off the life support apparatus for a loved one who is in hospital. At this difficult time, the question of permitting organ donation from the relative’s body may also be raised. In this article we look at some of the legal issues involved.


Under the Bill of Rights Act 1990 and the Health & Disability Commissioner Act 1994, any adult has the right to refuse medical treatment offered to them. As these rights co-exist somewhat uneasily with the legal obligation on the medical profession under criminal law to provide proper medical treatment, those involved in the process usually want to make sure that any decision is based on well informed consent. When the patient is unconscious the issue becomes more complicated. Any failure to provide proper medical treatment or taking steps to hasten death is illegal. Turning off life support is legal if there is no medical justification for continuing the treatment. Usually the situation is one where the life support is, in the words of a 1993 court case, “ (only) artificially prolonging the manifestations of life.”


What would our loved one have wanted if able to express a view, is probably the first question everyone asks when faced with these difficult issues? It is becoming popular for people while in good health to express views on what they wish to happen if they become totally incapacitated later in life. Often these wishes are in writing, signed and witnessed, and described as “living wills.” They provide some moral guidance and comfort to relatives faced with making a difficult decision. However, they have absolutely no legal standing under New Zealand law. They would provide no defence to anyone, who relying on even the most clearly stated wish, acted in a way that hastened someone’s death. There is a complete prohibition against euthanasia in New Zealand and legally one cannot consent to it in advance.


The transplanting of various body organs is now a well-established and proven medical procedure. However, New Zealand has one of the lowest rates of organ donation in the western world. This appears to be due to three factors: the lack of any national organ donation register, outdated and inadequate legislation, and social attitudes. In Spain, for example, the law presumes that everyone consents to their body being available for organ donation unless during their lifetime they clearly indicate otherwise. It is arguable whether in New Zealand we would all be comfortable with such an approach.


Currently there is no national register for those who wish to be organ donors, apart from ticking the box for organ donation on a motor driver’s licence. The Land Transport Safety Authority does not automatically pass on this information and also does not regard the ticking of the donor box as amounting to informed consent. The LTSA regards further family consent as being essential. It regards the licence holder as merely indicating a wish to be identified as a potential organ donor. Over one million New Zealanders have organ donor ticked on their driver’s licence but according to medical statistics only twenty-nine deceased persons became organ donors in 2005. One wonders if it is a total waste of time having anything on the driver’s licence at all. Also the stringent medical requirements relating to prevention of the degeneration of organs intended for donation can usually only be met if the dying person is in an intensive care ward of a hospital. In practise there is little time available for widespread consultation among an extended family.


Organ donation is generally governed by the Human Tissue Act 1964. If a person “either orally or in writing in the presence of two or more witnesses during their last illness expresses a request for their body or any part to be used for therapeutic purposes or medical education or research”, then the person “lawfully in possession” of the body can authorise it. However, anyone authorising organ donation has to be sure that the deceased had not changed their mind, or that any surviving partner objects. Despite the clear wording of the statute, hospital medical superintendents still routinely seek the consent of relatives before authorising organ donation. This has raised an interesting ethical debate within the medical profession as to whether ignoring the wishes of the deceased in preference to the wishes of living relatives, may in itself be unethical.


Before the last general election, the government undertook a review of the Human Tissues Act 1964 and also promised to set up a national organ donation register. It may soon become more straightforward legally to become an organ donor upon death, although new legislation and more bureaucracy is unlikely to make the decision any easier for grieving relatives to accept.



Disclaimer: The information contained in this article is of a general and summarised nature only. It should not be used as a substitute for obtaining personal legal advice.

© Terry Carson 2008

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