Organ Donation: Ethical Arguments and the Law


23 Mar 2015 14 Dec 2017

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According to Erich, (2004) “Organ donation” is defined as the taking away of tissue from one individual's body to let the transplantation of that tissue into another individual's body. Major organs for example; the lungs, liver and heart and kidneys can be contributed and donated, also parts of tissue for example the heart valves, corneas, tendons and skin can also be given. Organs and tissue can generally be removed from people who have recently died. In fact, since major organs for transplantation are taken out right after death and only a small number of people die in a way that allows them to donate organs. Nonetheless, kidneys and sections of the liver and pancreas can also be taken out for transplantation from living donors. In Australia, the donation of organs and tissue is a process that generally happens in a hospital operating unit. Erich, (2004) states that the transplantation of organs is now a highly recognized practice for those at risk of organ failure or suffering from diseases which limits their life relentlessly.

It is, however, the link between organ donation and transplantation that is significant for this discussion. The ‘major issue' in the transplantation of solid organs is, according to Chapman (1992:48), the ‘availability of donors… The number of organs available is not sufficient for any of the programs.' Factors influencing the supply of donor organs thus provide the first indication of the nature of the social context in which organ transplantation is located. According to Erich, (2004) understanding this helps to explain the nature of individuals ethical responses to the process.

We need to first acknowledge that the availability of donor organs is primarily influenced by a potential donor or donor's family agreeing to donation at death. Moreover, a precondition of this agreement is the perceived desirability or at least the absence of its undesirability. This is another way of saying that the act of donating an organ must consciously be seen as ethically acceptable or not ethically acceptable. These factors, however, do not exist in a social vacuum but are mediated by a range of others that can be gleaned from the specialist literature on organ donation and transplantation. Such factors include the decline in road accidents which means less availability of donor organs, educated programs, bereavement programs for relatives of the donor, increased success rates for transplantation surgery, rising health care costs and government concern to promote transplantation units, awareness of, and pressure to introduce a policy of opting out of being a potential donor rather than the current situation of opting out and so on. Currently in Australia, the level of organ donation is 9 organs per million people, half the rate of the USA and only a quarter of Spain, the leading proponent of organ donation.

According to Lewins, (2001) Spain currently has the highest rate of organ donation in the world largely due to its commitment to improving organ donation rates throughout the country's entire health care system. As a result, many other countries have drawn on aspects of Spain's organ donation and transplantation sector in an attempt to lift their own rates selectively so in Australia's case. Elements of the Spanish system that have been emulated by other countries include the national coordination of all aspects of the organ procurement and transplantation system, dedicated organ donation coordinators and transplant teams within hospitals, and presumed consent legislation. Lewins, (2001) states that transplant law in Spain operates under a presumed consent, or opt-out system. However, families must be approached and sign an authorization in order for the procedure to take place. 

The uniform act provides for a more common form of recording a person's intention to make an organ donation: a donor card that may be carried in a wallet. States also allow this donor information to be imprinted on a driver's license. When a person applies for a driver's license, she or he has the option of including a desire to donate organs. Despite the simplicity of this option, it has not generated the quantity of donors that proponents of the procedure expected.

Organ Donor Register of Australia

Fellner, (2009) declares that in Australia, Organ donation is mainly revolved around The Organ Donor Register of Australia (ODRA), which is managed by Medicare Australia, and is Australia's current major register of consent to organ donation and transplantation. It is a register of consent or approval for donated organs to be utilised for transplantation reasons only, and not for scientific reasons. The ODRA was created in 2001 as a national register of people's want to donate. Subsequent to a review in 2003-04, the Australian Health Ministers Conference (AHMC) declared that the ODRA would be altered as of a record of intent to a record of consent. The declared intend of this change was to make sure that the acknowledged desires of the deceased, whether compliant or objecting, are valued and acknowledged (Fellner, 2009). Nevertheless, as shown above and discussed further later in this essay, to register consent is not to create a lawfully binding decree. Based on subjective evidence, the National Clinical Taskforce has stated that, in some jurisdictions, donation can still happen if the next of kin has prearranged their permission, even with a registered objection by the deceased. (Wroe, 2004)

Legal guidelines of organ donation are the sole responsibility of the Australian states and territories under the federal legal system. Each state and territory has different legislation to do with organ donation and transplantation, including commandments on consent for organ donation. With reference to McLean, (2003) not only is there not a Commonwealth legislation to do with organ donation, but there is as well no national organising body or agency with legislated authorities. As a consequence, legislation and directives of Australia's organ donation and transplantation division, which covers a wide range of actions and procedures, vary across the country. While there is not any Commonwealth legislation concerning organ donation, there are a few general guidelines and protocols that are appropriate to every state.

State and territory legislative frameworks in relation to transplantation are majorly based on the concept of informed consent. In the occasion of their death, people can decide to have consent for their organs to be taken. Where individuals provide their approval for their organs to be used and employed for transplantation use, this consent is then documented and recorded. This consent is now a type of legal accord that their organs can be used, if required, for transplantation. Though Kirsty, (2002) states that again registration of consent is not a lawfully binding decree. Under different state and territory laws, consent can be shown in a variety of different ways. For example, in New South Wales (NSW) and Queensland (QLD), donation may only continue where the deceased has beforehand given written consent. In Victoria, approval and consent can be given in writing or verbally at some point in the last stages of infirmity of the deceased.
In addition, whenever there is no legal consent registered, the next of kin or close relatives and family are able to provide consent or approval for organs of the departed to be donated. When the deceased individual's family members cannot get in touched with, the states and territories vary with regard to the problem of whether or not they permit donation to continue. In NSW, Western Australia (WA) and Tasmania (TAS), when no consent was listed by the deceased and a next of kin cannot be made contact, donation cannot continue. In Victoria (VIC), South Australia (SA), Northern Territory (NT) and the Australian Capital Territory (ACT), where efforts have been made to contact the relative or family and there are no grounds to believe that both the family and the deceased would disagree to the deceased's organs getting donated, and then donation can legally carry on (Kirsty, 2002). Although, whether or not an individual has shown their consent for donation, family members are consulted at all times (Kirsty, 2002). Donation cannot happen when family members firmly disagree to such a process, even when the deceased individual's consent has been registered. It is therefore, clear that one can only consent to donate a part of one's body if it causes no appreciable harm or at least, if the harm caused is greatly outweighed by the resultant benefits.

Another legal aspect in relation to organ donation is the selling of organs, which is illegal under the Uniform Anatomical Gift Act that was drafted in 1968. Though, a very good case has been made out for the organ being the property of the donor insofar as it is within his or her to dispose of it as desired, subject only to the common law. But, McLean, (2003) states that if the organ is something that can be gifted, why is it not something that can be sold and it is at this point in the argument that Parliament has felt itself bound to call upon stature law which has done by way of the Human Organ transplant Act 1989.

The 1989 Act has two main functions.

The first is to criminalise all aspects of financial trading in human organs and this includes being and selling organs from the dead as well as the living, the second is to regularise and control non commercial organ replacement therapy using living donors. As to the first, it is an offence for any person to make or receive payment for taking any active part in the transplantation programme.

Those in favour of the ban would say that commercial donors are exposing themselves to unacceptable risk but, live organ donation is legally, morally and technically acceptable when it is conducted on a non commercial basis. Secondly, the ethicist will say that free, unfettered consent is impossible when it is associated with financial pressure, but the financial pressure exerted commercialism is no greater than the emotional pressure involved in free donation within the family. Thirdly, the process can be seen as exploitation of the poor by the rich, but momentary reward for any unpleasant form of employment is a form of exploitation. Lastly many people would say that the commoditisation of the human body is intrinsically immoral.
Subsequent to the modifications made to the ODRA in 2004, the Australian Health Ministers Advisory Committee (AHMAC) has charged the National Health and Medical Research Committee (NHMRC) with taking on an evaluation of its procedure, Commendation for the Donation of Organs and Tissues from cadavers for Transplantation (1997). This evaluation also reflects on background documents from the Australian Health Ethics Committee and performed sessions and conferences with the appropriate groups and stakeholders. The new NHMRC plans, Organ and Tissue Donation following Death, For Transplantation, offer a guide to ethical standards in relation to organ donation. The guidelines are founded on the beliefs that; Firstly, the donation of bodily organs and tissues is a just act of unselfishness and human cohesion, Secondly organs and tissues for transplantation should be acquired in ways that:

  • Show respect for all aspects of human dignity
  • Respect and acknowledge the wishes, where known, of the deceased
  • Give priority to the desires of the potential donor and kin over the benefits of organ procurement
  • Protect all recipients from harm and
  • Recognise the desires of all those directly involved, which take account of the donor, recipient, kin, guardians, friends and health experts.
  • (List adapted from Erich, 2004)

Thirdly, organ and tissues must be allocated according to just and transparent procedures and lastly, the decision not to donate must be respected and the family shown acknowledgment for the choice.
The guidelines, in addition gives advice as to how authorisation of donation ought to be resolute to where there is no next of kin on hand, as well as offering ways to make sure that family members make an knowledgeable decision in regards to the donation of the deceased's organs. But in ethical terms, who's to choose who gets to receive an organ and live? To decide that some people are less socially desirable than others and to allocate life saving resources on the basis of “social worth” has justifiably been in disrepute. According to Thomas, (2006) not only so such judgements disrespect all notions of primary worth, but they also easily open the door so arbitrary value judgements in which national origin, race religion and social class become determining factors. In Kantian terms, all persons by virtue of being persons deserve absolute respect. If we allow social worth criteria to protrude into our medical judgements when it comes to the allocation of scarce resources, we are indeed violating the respect for sentimental beings that forms one of the cornerstones of contemporary ethics.

According to Thomas (2006), there are three types of donation in relation to organs by living individuals to their recipients. They are, directed donation to a family member or friends; non directed donation, in which the donor grants an organ to the wide-ranging selection to be transplanted into the recipient at the peak of the waiting list, and direct donation to a stranger, where donors decide to give to a particular individual with whom they have no preceding emotional relationship with.
However, each form of donation presents its own individual ethical concerns and issues. With directed donation to family or friends, uncertainties occur about the extreme pressure that can be put on individuals to donate, and those who are unwilling to do so to feel forced. According to Wroe, (2004), transplantation programs are usually prepared to identify a reasonable medical excuse, so that the individual can bow out gracefully. Equally significant, however, are situations in which people feel obliged to donate in spite of the penalties to themselves. In cases like these, merely getting a hold of the informed consent of the relative is not enough; physicians are obliged to stop people from making possible life threatening decisions unless the likelihood of success is large.

Non directed donation creates different ethical concerns.

The essential unselfishness that encourages an individual to make a possible life threatening sacrifice for an unfamiliar person calls for careful inspection. With reference to Truog, (2005) a recent case involved a male who appeared mentally obsessed with donating all that he has, from his wealth to his bodily organs, saying that doing so was "a great deal as the obligation as eat, drink, and breathe."After giving one kidney to a stranger, he speculated on how he could donate all of his other organs which would result in death. Other mentally suspicious motivations must be taken into consideration also, to prevent unnecessary deaths. Hence, after this dilemma society questions if the individual is trying to pay off for depression or low self esteem, in search of media attention, or harboring hopes of becoming occupied in the life of the recipient. Transplantation experts have the responsibility to evaluate possible donors in all these dimensions and forbid donations that provoke catastrophic concerns. (Truog, 2005)
Directed donation to a stranger creates analogous ethical questions with a few extra notions. This kind of donation generally takes place when a patient advertises for an organ openly in public, on television or newspapers or online. According to Truog, (2005) such advertising is not against the law, but it has been solidly discouraged by the transplantation experts. Two major objections are that the practice is unjust and that it intimidates the outlook that the bodily organs are in fact a "gift of life," and not a product to be bought and sold.

On the other hand, the thought of transplanting the organs or the newly dead into the living makes some people uncomfortable. Transplanting organs from the living donor into the needy recipient often meets with other objections. With reference to Erich, (2004) three philosophical objections have been raised; Firstly, Capriciously removing a part of an organ not only is irrational but is “mutilation” and unacceptable. Persons are their body's stewards and compelled not to treat their bodies in injurious ways. Secondly, Persons, since they are merely stewards of their body, are justified in removing a part of their body only by so doing they preserve the integrity of the whole. If however, a part is removed so as to the preserve the integrity as a whole, then, in the context of a stewardship, such “self mutilation” is not only permissible but, perhaps, since it promotes wholeness, mandatory. Thirdly, mutilation of the body by removing a part is impermissible for any reason, even that of helping one's neighbor, other than to preserve the integrity of the whole body of which it is a part. And lastly, the idea of totality to be preserved intact when a man dies persists.

Deontological ethics

Deontological ethics is too inflexible in its importance on duties, utilitarian ethics too keen to overrule fundamental human rights. Deontology and utilitarianism are both types of ethics referring to how one responds in a certain situation. Deontology is based on following a set of duties and sticking to these duties no matter what the consequences, whereas utilitarianism is based on choosing the best outcome over a short term and long term even if it means depriving people of basic human rights. According to a deontologist, ones actions must be determined by a set of duties regardless of whether the long term consequences are good or bad.

According to Micah, (2005) a deontologist believes in human morals and that every human has certain rights which should not be betrayed no matter what the cost. For example, taking organs from an individual without their consent, even to save one hundred lives would be unacceptable to the deontologist even though the fact the consequences would be better on the whole. The biggest problem with deontology knows which set of duties to pursue; there could be a huge variation in systems between people from different backgrounds, different social classes, different religions and people from different cultures. Micah, (2005) questions as to how do we tell which obligation is the most important and which is the least? If the consequences of each are to be considered then this would make it a consequentialist view and not a deontological one. Single duty conflicts cause just as many problems such as two individuals imminently need a heart transplant but only one organ is available, a deontologist has a duty to save lives but on this occasion only one out of the two can be saved.

For example, a case that was discussed at a recent public forum hosted by Harvard Medical School's Division of Medical Ethics: a Jewish man in New York learned of a Jewish child in Los Angeles who needed a kidney transplant. The man wanted to help someone of his own race and resolute that he was willing to donate a kidney to aid this child. Regardless of his discriminatory preference, one may analyse the donation as acceptable, since at least several patients would benefit for example, the child would be given a kidney, and those under her on the waiting list would move up one) and no one would be harmed (those above the girl on the waiting list would not get the kidney under any conditions, for the reason that the man would not give it to them). Whether directed donation to strangers violates values of equality is thus controversial. But if it is acceptable, it will be very hard to disallow discriminatory preferences, since donors can just specify that the organ must go to a particular individual, without saying why.
According to Mill, (2004), Utilitarianism is a theory that promotes the best welfare and the greatest good for the greatest number. To attain this objective, society's resources are shared so that the maximum number of individuals benefit. In the context of organ transplantation, patient's desires are compared so that the greatest results can be obtained and the greatest use of a scarce resource can be made. Our use of organs from patients who initially are judged to be medically unsuitable as donors supports the utilitarian approach of expanding the pool of potential donor organs and providing benefits to a greater number of patients. The ending result, however beneficial, does not justify the use of unethical means. Medical utilitarianism is therefore subjected to principles that reflect deontological theory. For example the “Karlovian” transplant case is an example of the anti-utilitarian theory. In this made-up case, a doctor has to make a decision whether to take the life one of his patients in order to save four other patients by using the victim's transplanted organs.

In conclusion, we have questions whether or not it is reasonable to continue to assert that there, or should be no property rights in the human body, or at least in its parts. Modern medical reality might provoke a re-evaluation of this mantra. At the same time, we have emphasised the complexity of the very concept of property itself, arguably requiring the law to take a more sophisticated approach to individual rights in respect of control, ownership and disposal.
Not only would this present an accurate foundation for Australia's organ donation and transplantation scheme, but it would also permit for the widest variety of motivations for organ donation while not negotiating people's capacity to create ethical choices in donation. At the same point, preparation Australia's organ donation and transplantation scheme on the idea of a rational, autonomous decision-maker could allow a number of changes to this scheme, the final result of which may be an increased amount of organs obtainable for transplantation and additional Australian and New Zealand lives saved.


Erich, H. (2004) Textbook of Healthcare Ethics. New York and London: Plenum Press.

Fellner, C. (2009) Organ Donor Register. Retrieved 4th October 2009 from the World Wide Web:

Kirsty, A. (2002) Organ donation laws. Retrieved 5th October 2009 from the World Wide Web:

Lewins, F. (2001) Bioethics of Health Professionals: an introductions and critical appraoch. Melbourne: Macmillan Education Australia.

McLean, S. (2003) Legal and Ethical Aspects of Healthcare. San Francisco: Cromwell Press.

Micah, H. (2005) The American Journal of Bioethics. Retrieved 2nd October 2009 from the World Wide Web:

Mill, J (2004) Practical Reasoning In Bioethics. Retrieved 29th September 2009 from the World Wide Web:

Thomas, C.(2006) Ethics Around Organ Donation. Retrieved 4th October 2009 from the World Wide Web:

Truog, R. (2005) The Ethics of Organ Donation by Living Donors. Retrieved 5th October 2009 from the World Wide Web:

Wroe, D (2004) Law change to make organ donations easier. Retrieved 5th October 2009 from the World Wide Web:


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