Inter Vivos Organ Donation

Posted by - - Medical Law.

Last month I took the seasonal opportunity to write about the gift of life, and in particular, the gift of life arising from death where on the death of a person, his or her organs are, in the absence of a direction from that person to the contrary, donated to save or improve the lives of others.

This leads me now to the vexed issue of organ donations by healthy people. Kerry Packer’s helicopter pilot famously donated a kidney to his boss. The practice is not unusual in familial relationships, with siblings or parents often (or even usually) being willing to donate an organ to help save the life of a loved one. And anecdotal evidence suggests that there is a substantial black market in organs which have been sold by the ‘donor’, or have been stolen from them. As things presently stand in Australia it is quite legal to give an organ to another person (even a stranger), but illegal to sell one. Why? The policy behind this law is not clear. Perhaps fear of a corrupt and exploitative organ market developing, where individuals under financial duress are making decisions that they would not otherwise make. ‘Pay off your credit card debt now! Finance your house deposit! With just one kidney!’ Demand would drive prices up and altruistic ‘stranger’ donation would disappear. As a result the only transplant waiting list left would become one based on wealth, not health, with organs going to the highest bidder, rather than the most needy.

As the situation now stands, the donation of an organ by a healthy person is posited as a strong example of altruistic behaviour and the vast majority (95%) of such donors are satisfied with their decision, and would do it again. A small minority (5%) suffer regret connected with the tyranny of the gift. A recent episode of the television programmeHouse illustrated the point nicely. A woman wished to donate an organ to her partner, who was in need of that organ in order to survive. The operation was risky—there was a chance of the donor dying. The doctor was aware that the partner was in fact planning on leaving the donor, and that the partner had not told her of those plans. The doctor told the donor. The donor said something along the lines of, ‘I know. I’ve known that for a while. That’s why I’m willing to donate. She will never be able to leave me now’. Unfortunately for Dr&nbps;Richard Batista aged 49 of Long Island, his donation of a kidney to his wife in 2001 did not stop her leaving him. On 7 January this year, Dr Batista’s lawyer demanded the return of the kidney or the payment of its estimated monetary value of USD 1.5 million.

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