As a result, in some countries the quantity of living donor organs even exceeds the number of deceased donor organs. See L.D. Horvat, S.Z. Shariff & A.X. Garg. Global Trends in the Rates of Living Kidney Donation. Kidney Int 2009; 75: 1088-1098.
C.A. Erin & J. Harris. An Ethical Market in Human Organs. J Med Ethics 2003; 29: 137-138
J. Radcliffe-Richards et al. The Case for Allowing Kidney Sales. Lancet 1998; 351: 1950-1952
S. Satel, ed. 2008. When Altruism Isn't Enough: The Case for Compensating Kidney Donors. Washington, DC: AEI Press
J.S. Taylor. 2005. Stakes And Kidneys: Why Markets In Human Body Parts Are Morally Imperative. Aldershot: Ashgate.
F.L. Delmonico et al. Donor Kidney Exchanges. Am J Transplant 2004; 4: 1628-1634
J.I. Roodnat et al. Successful Expansion of the Living Donor Pool by Alternative Living Donation Programs. Am J Transplant 2009; 9: 2150-2156.
A. Kumar et al. Expanding the Living Related Donor Pool in Renal Transplantation: Use of Marginal Donors. J Urol 2000; 163: 33-36
A. López-Navidad & F. Caballero. Extended Criteria for Organ Acceptance: Strategies for Achieving Organ Safety and for Increasing Organ Pool. Clin Transplant 2003; 17: 308-324
A.J. Matas. Transplantation Using Marginal Living Donors. Am J Kidney Dis 2006; 47: 353-355.
Because a mentally incompetent person cannot give proper consent, she is not to be considered as an organ donor in the strict sense of the term, but rather as an organ source.
Wet betreffende het wegnemen en transplanteren van organen/ Loi sur le prélèvement et la transplantation d'organes. Available at http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=nl&la= N&cn=1986061337&table_name=wet (Dutch) and http://www.ejustice. just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn= 1986061337&table_name=loi (French) [Accessed 19 Feb 2012].
Letter from the Minister to the Committee, 22 March 2010.
Belgian Advisory Committee on Bioethics, Opinion No. 50, 9 May 2011. Available at: http://www.health.belgium.be/eportal/Healthcare/ Consultativebodies/Commitees/Bioethics/Opinions/index.htm (in Dutch and French) [Accessed 19 Feb 2012].
See p. 109 of the Opinion (Dutch version) or p. 104 (French version).
The Belgian government is currently preparing a bill to bring the organ transplantation law in line with EU Directive 2010/45/EU. This opportunity may be taken to modify the provisions regarding organ procurement from mentally incompetents.
B.A. Schenberg. Harvesting Organs from Minors and Incompetent Adults to Supply the Nation's Organ Drought. Ind Health L Rev 2007; 3: 319-359: 347.
It is an established principle that a competent adult has every right to decline organ donation, even if she is the only person who can save the intended recipient. This fundamental principle has been forcefully articulated in the infamous McFall v. Shimp case of 1978. Petitioned by a terminally ill man to require a potential life-saving bone marrow donation by his first cousin, the Pennsylvania District Court ruled that, although it found the refusal of the defendant to be morally indefensible, a competent adult is under no legal obligation to submit to an intrusion of his body for the benefit of a third party. In rejecting the motion of the plaintiff, the court emphasized that for a society founded upon respect for the individual and an absolute right to bodily security, ordering forcible extraction of living body tissue for the sake of someone else would be revolting. See McFall v. Shimp (1978) 10 Pa. D. & C. 3d 90.
See, for instance, C. Cheyette. Organ Harvests from the Legally Incompetent: An Argument against Compelled Altruism. Boston Coll Law Rev 2000; 41: 465-515.
This dilemma has been eloquently formulated in a dissenting opinion by Justice Steinfeld in Strunk v. Strunk: 'My sympathies and emotions are torn between compassion to aid an ailing young man and a duty to fully protect unfortunate members of society.' See Strunk v. Strunk (1969) 445 S.W. 2d 145 (Ky Ct of App) at 149.
We focus on Belgium, Ireland, Sweden, the United Kingdom and the United States, where procurement of a non-regenerable organ from mentally incompetents is (or can be) allowed in certain cases.
In re Guardianship of Pescinski (1975) 226 N.W. 2d 180 (Wis Sup Ct). The case was decided by the court on 4 March 1975. Elaine Pescinski died on 5 January 1977. As mentioned in the fourth footnote to the dissenting opinion of Justice Day in In Matter of Guardianship of Eberhardy (1981) 102 Wis. 2d 539.
Little v. Little (1979) 576 S.W. 2d 493 (Tex Ct of App) at 499.
An egregious example involved parents petitioning for compatibility testing of their thirteen-year-old mentally incompetent boy without even considering his eleven-year-old mentally sound sister as an alternative. See M.D. Levine et al. The Medical Ethics of Bone Marrow Transplantation in Childhood. J Pediatr 1975; 86: 145-150: 147.
By 2004, eleven deaths associated with bone marrow procurement had been reported worldwide, although for most of these no clear causal relation was established. See D.L. Confer. 2004. Hematopoietic Cell Donors. In Thomas' Hematopoietic Cell Transplantation.
D.L. Segev et al. Perioperative Mortality and Long-term Survival Following Live Kidney Donation. JAMA 2010; 303: 959-966. These figures are based on a follow-up study relating to the period 1994-2009. This study also showed that the mortality remained unchanged during those fifteen years.
Merion reports a mortality risk of 0.2% to 0.5%. See R. Merion. Current Status and Future of Liver Transplantation. Semin Liver Dis 2010; 30: 411-421: 417. A recent review article reports a mortality risk of 0.2% to 2%. See Y. Yuan & G. Mitsukazu. Biliary Complications in Living Liver Donors. Surg Today 2010; 40: 411-417.
J. Halter et al. Severe Events in Donors after Allogeneic Hematopoietic Stem Cell Donation. Haematologica 2009: 94-101: 94
See J.D. Kallich & J.F. Merz. The Transplant Imperative: Protecting Living Donors from the Pressure to Donate. J Corp Law 1995; 20: 139-154: 148
G. Mjøen et al. Morbidity and Mortality in 1022 Consecutive Living Donor Nephrectomies: Benefits of a Living Donor Registry. Transplantation 2009; 88: 1273-1279: 1278
A. Spital. 2001. Ethical Issues in Living Related Donors. In The Ethics of Organ Transplantation. W. Shelton & J. Balint, eds. Oxford: Elsevier Science: 103. These complications include major postoperative bleeding, damage to the spleen or adrenal glands, pulmonary embolisms, and retroperitoneal infections.
See D.A. Goldfarb et al. Renal Outcome 25 Years after Donor Nephrectomy. J Urol 2001; 166: 2043-2047
J.S. Najarian et al. 20 Years or More of Follow-Up of Living Kidney Donors. Lancet 1992; 340(8823): 807-810
For instance, there is a possibility that a kidney donor will need a kidney transplant if, due to an accident or disease, her remaining kidney is damaged.
See M.D. Ellison et al. Living Kidney Donors in Need of Kidney Transplants: A Report from the Organ Procurement and Transplantation Network. Transplantation 2002; 74: 1349-1351.
In the absence of any specific legislation with respect to transplantation, living donation in Ireland is governed by ethical guidelines drafted for the Irish living donation programme based in the Beaumont Hospital in Dublin. These guidelines allow the removal of a non-regenerable organ from mentally incompetents under very strict conditions. Similarly, the Human Tissue Bill that is currently being drafted, also provides for the removal of a non-regenerable organ from mentally incompetents. The draft Proposal for the General Scheme of the Human Tissue Bill is available at http://www.dohc.ie/consultations/ closed/human_tissue_bill/draft_proposals.pdf?direct=1 [Accessed 19 Feb 2012]. We would like to thank Dr. Siobhán O'Sullivan for providing this information.
Lag (1995:831) om transplantation m.m., 8 §, available at http:// www.notisum.se/rnp/sls/lag/19950831.htm [Accessed 19 Feb 2012]. 30 In the United Kingdom, under the Mental Capacity Act 2005, a court can authorize organ procurement from a mentally incompetent person on the grounds that this would be in her best interests. Although, as yet, no cases have arisen involving non-regenerable organs, nothing would prevent such cases to emerge. See J. Herring. 2010. Medical Law and Ethics. Oxford: Oxford University Press: 423- 424
S.D. Pattinson. 2009. Medical Law and Ethics. London: Sweet & Maxwell: 477-478.
Strunk v. Strunk (1969) 445 S.W. 2d 145 (Ky Ct of App) at 148-149
Little v. Little (1979) 576 S.W. 2d 493 (Tex Ct of App) at 499.
K.D. MacLeod et al. Pediatric Sibling Donors of Successful and Unsuccessful Hematopoietic Stem Cell Transplants (HSCT): A Qualitative Study of Their Psychosocial Experience. J Pediatr Psychol 2003; 28: 223-231
A.F. Patenaude. Psychological Impact of Bone Marrow Transplantation: Current Perspectives. Yale J Biol Med 1990; 63: 515-519.
P. Cohen. Donor's Dread: Why Do Children Who Help a Sick Sibling End Up Depressed? New Scientist 1997; 55: 20.
Little v. Little (1979) 576 S.W. 2d 493 (Tex Ct of App) at 499.
See R.A. Crouch & C. Elliott. Moral Agency and the Family: The Case of Living Related Organ Transplantation. Camb Q Healthc Ethics 1999; 8: 275-87: 283.
See L.E. Lebit. Compelled Medical Procedures Involving Minors and Incompetents and Misapplication of the Substituted Judgment Doctrine. J Law Health 1992; 7: 107-130: 119.
See P. Lewis. Procedures that Are Against the Medical Interests of Incompetent Adults. Oxford J Legal Stud 2002; 22: 575-618: 589.
Strunk v. Strunk (1969) 445 S.W. 2d 145 (Ky Ct of App) at 146.
In Curran v. Bosze, bone marrow transplant compatibility testing on two 3-year-old twins was denied because the court held that they had no existing, close relationship with the intended recipient, who was their half-brother, since they were living in a separate household and had only met him twice. See Curran v. Bosze (1990) 566 N.E. 2d 1319 (Ill) at 1343-1344.
E.g. J. Dwyer & E. Vig. Rethinking Transplantation between Siblings. Hastings Cent Rep 1995; 25: 7-19
L.A. Jansen. Child Organ Donation, Family Autonomy, and Intimate Attachments. Camb Q Healthc Ethics 2004; 13: 133-142: 136
H. Klepper. Incompetent Organ Donors. J Soc Philos 1994; 25: 241-255: 253.
See D. Steinberg. Kidney Transplants from Young Children and the Mental Retarded. Theor Med 2004; 25: 229-234: 233.
N. Biller-Andorno et al. Who Shall Be Allowed to Give? Living Organ Donors and the Concept of Autonomy. Theor Med Bioeth 2001; 22: 351-368.
See, for instance, M.T. Morley. Proxy Consent to Organ Donation by Incompetents. Yale Law J 2002; 111: 1215-1249: 1248.
S.L. Nygren. Organ Donation by Incompetent Patients: A Hybrid Approach. Univ Chic Leg Forum 2006; 471-502: 500.
