You are on page 1of 12

What is Organ Transplantation?

The last fifty years have seen major advances in the field of medical research, many
of which were translated into clinical applications. In general, these applications have brought
immense benefits to patients. As many of these new clinical applications are quite radical and
often controversial, they inevitably challenge conventional ethical principles. Solid organ
transplantation is one such advance which has generated and continues to generate issues
involving ethics, law and morality. Organ transplantation has become an effective form of
treatment particularly for end stage heart, liver and kidney failure. Except for kidney failure,
organ transplantation is the only form of possible treatment for the other organ failure states,
like the heart or the liver.
Organ donation is the gift of ones body parts after death for the purpose of
transplantation. Transplantation is an operation which involves the replacement of diseased
and defective organs and tissues with healthy ones from donors. It is the medical procedure
whereby living tissue from a human body is removed from that body and transferred to
another part of that body or to another person. This treatment helps save lives of people.
Organ and tissue donation is the ultimate humanitarian act of charity. The commonly
transplanted organs are kidneys, heart, liver, lungs and pancreas while the transplantable
tissues are eyes, bones, skin and heart valves. Thus a single donor can save the lives of a
number of people.
Generally, organs for transplantation can come from either a living person (the live
donor) or a dead person (the cadaveric person). Live donors can be parents, siblings or close
relatives who are genetically related to the recipients; or spouses and very close friends who
are emotionally related to the recipients. Whereas, cadaveric organ donation is the donation
of organs after the death of an individual.

Since the beginning of organ transplantation as a form of treatment, it has been
plagued by ethical considerations and human rights violations, which have not been fully
resolved. The prime medical dictum has been doing no harm and the acceptance of live organ
donation in principle was clearly counter to this dictum. The possible risks for some
individuals, who are medically fit and volunteer to donate an organ for transplantation, were
one of the first issues which troubled ethicists.
After much debated an agreed position was reached to safeguard the donating
individual as much as possible. A communiqu released by the transplantation society stated -
The person who gives consent to be a live organ donor should be competent, willing to
donate, free of coercion, medically and psychosocially suitable, fully informed of the risks
and benefits as a donor, and fully informed of risks, benefits, and alternative treatment
available to the recipient.
This assignment would be answering several issues;
Whether living organ donation is unethical particularly when donors are unrelated and
Whether this medical process promotes commercialization of human organs?
Whether by implementing the opting out system would increase the supply of
human organs and stop commercialization of human organs?

Whether living organ donation is unethical particularly when donors are unrelated and
A research study has been conducted in the north France to examine the judgment
process involved in the decision to donate a solid organ. As expected, the recipients identity
had by far the largest impact on willingness to donate. For most participants, when the
recipient was a close family member, the willingness to donate an organ was very high, even
in the face of durable health consequences. In actual practice, potential kidney donors were
willing to accept a higher risk to donors of long-term adverse effects than were the potential
recipients or transplant professionals. As also expected, each of the other four factorsthe
risk to the donor of extracting the organ, the consequences for the donor of living without the
organ, the likelihood of success of the transplant, and the chances of finding another
compatible donorhad lesser but still significant effects on willingness to donate. The health
consequences for the donor and the likelihood of success of the transplant had larger effects
than the other two factors.
In addition, three clusters of participants with different judgment processes were
found. Two of these clusters were extremely similar to those identified in early studies. In the
largest cluster, named Family Donors, the recipients identity played the major role. When
they were close family members, willingness to donate was very high. When they were
identified only as persons in the same city, willingness was low. For most donors, the
decision to donate is a very quick decision based on only one situational factor: whether the
person in need is a close relative or not. In the second cluster, named Universal Donors, the
recipients identity also had a stronger impact than the other factors. Nonetheless, willingness
to donate continued to be moderately high even when the recipients were probable strangers
and when, in addition, the risk of surgery was more than minimal, the donor would suffer
durable health consequences, and the likelihood of success of the transplant was only one out
of two. The majority of this cluster had signed or was about to sign a donor card.
The supply of cadaveric organs for transplant varies around the world according to the
willingness of families to agree to donation and the ability of medical teams to harvest these
organs. Even in developed countries, however, the supply is inadequate and, as a result,
living donors have been increasingly recruited. Most of these donations are, however, to
family members. This is the result both of donor preference and of the specific legal climate
of the country. According to French law, consent for organ donation from deceased persons is
presumed unless they indicated their refusals during their lives. Organ supply is, nonetheless,
inadequate. Living donation is permitted, therefore, if approved by a panel of experts, from
close relatives (including uncles, aunts, and first cousins) and from people who can prove that
they lived with the deceased for at least two years. In Germany too, living donation is
permitted only among relatives or those in close personal relationships. The United Kingdom
allows donations also when they are paired (when two donors are each incompatible with
their hoped-for recipient but compatible with the other one) and when they are nondirected.
In the United States, a persons ability to donate an organ is not restricted as long the
transplant center determines that the donor has mental capacity and is unlikely to be harmed
and makes sure that the donor is fully informed about the risks and benefits.
There is no legislation governing living donor transplantation in Malaysia. Live
donors fall within the purview of the common law. According to Gerald Dworkin, for
competent adults, informed consent should be obtained before the removal of the organ. He
stated that four conditions should be met before removal of organ from a competent donor.
They are:

(a) the patient gives full, free and informed consent
(b) the operation is therapeutic
(c) there must be lawful justification
(d) the operation must be performed by a person with appropriate medical skills.
Where the potential donor is an incompetent adult, the legal principles are more
stringent. It would be necessary to show that these incompetent patients would be benefit
from becoming donors, not merely that it is reasonable to expose them to the risk. In Re Y,
the court held that the transplant was in the best interest by placing importance on the
following factors:
(a) Miss Y would derive benefit from the visits which she receives from her family
involvement in family events
(b) there is affection between mother and daughter
(c) chances of survival would be greatly reduced if the transplant is not carried out
(d) chances of semi-indefinite survival were goof if the recipient survived the first six
months after the transplant.
In this case, Miss Y was 25 years old and had been severely incapacitated and
physically disabled from birth. She had lived in care since 10 years old. Her sister, aged 36
years, suffered preleukaemic bone marrow disorder and would suffer myloid leukaemia
within three months. Miss Ys sister sought a declaration that it would be lawful to perform
blood tests and possible bone marrow extraction upon Miss Y despite the latter inability to
consent. The court held that taking blood tests and harvesting of bone marrow from a person
incapable of giving consent would be assault and illegal unless it shown to be in the best
interests of the person and therefore lawful.
Despite of that, Malaysian Medical Council has come out with a Guidelines 2006
regarding the organ transplant. Among others, it provide guidelines for organ donation by
living donors to ensure that the potential donor of an organ or part of an organ has undergone
evaluation and understands the risks involved. Besides, it is to ensure that the institution
performing the transplantation follows the procedures according to ethical principles and
practices as accepted as present. The guidelines also stated the general procedures for living
donors to make organ donation. An individual willing to donate organ must be :
a. An adult legally able to give consent
b. Aware of all risks that can occur
c. Physically and mentally fit
d. Fully aware of the decision he/she is making
e. Able to fully evaluate and understand all information given to him/her
f. Not have received any coercion or any advice or opinions from sources other then
institution which is planning the transplantation.

At Portugal, the first law that been highlighted is Law 22/2007 of 29 June. It intends
to serve as an impulse to the increasing success of organ transplantation programmes,
although maintaining the fundamental principles of voluntary donation and solidarity, which
are particularly important in cases of removal from living donors. This show that there a
standard procedures or principles for donation and removal from organs, tissues and cells
with therapeutic or transplantation purposes. The law itself provides for the subsidiary nature
of the removal from living donors (even if not in explicit terms), for this is only permitted:
i) Within the therapeutic interest of the recipient
ii) Provided that there isnt any fit organ or tissues removed from a dead donor
iii) As long as there exists no other therapeutic method of equivalent efficiency. The
removal of organs and tissues from living donors is conceived as ultimia ratios.

Whether this medical process promotes commercialization of human organs?
In the 1980s survival of transplanted kidneys improved considerably with the
introduction of newer forms of drugs to suppress the bodys immune system. At the same
time it is well known that kidney transplant patients enjoy a better quality of life compared to
dialysis patients. However, the request for kidney transplant increased but the kidney supply
from the cadaveric sources remained at low level. This led to the phenomenon of selling of
organs by the poor. Surely patient from rich background will went into third world countries
like India, Pakistan or Philippines to buy or purchase organs for transplant. The sale of organs
became a lucrative trade for some except that the poor donor was often paid a paltry sum for
his kidney or eye while the unscrupulous doctors and middle men profited. The rampant
commercialisation and exploitation of the poor shocked the international transplantation
community and the International Society of Transplantation and many national societies
condemned the practice.
This problem has confounded medical ethics. Despite of the country itself had
implemented law to ban such illegal activity, it still there and not ceased, becoming an illicit
trade. Besides, the doctors integrity also questionable when they lower their standard in
choosing the donors for the sake of money. On the other hand, poor people are given lesser
option for support his family. This also lead to criminal activity, where people especially kids
are abducted by certain syndicate for purpose of illegal organ black market. In Malaysia, it
acknowledge the practise of organ donation but strictly against the organ commercialization
although it is hard for prevent this from happened.

It is well-versed that demand of organ transplant compare to the supply of the organ
itself is very low. Section 1 of Human Organ Transplantation Act 1989 previously addressed
commercial dealings in human organs. Those provisions were repealed for England, Wales,
and Northern Ireland on October 20, 2005 and replaced by more extensive provisions of the
Human Tissue Act 2004. The 1989 Act, however, under Section 1(5), it was not restricted to
doctors and enabled those convicted to be finer or imprisoned for up to three whereas, under
Section 32(4) of the 2004 Act, a person who buys or sells an organ can now, on conviction on
indictment, be imprisoned for up to three years, fined or both.
The now repealed provisions of the 1989 Act are worth mentioning for comparative
context. Section 1(1) prohibits making or receiving payment for the supply of an organ for
transplantation, offering to supply an organ for transplantation, and negotiation or brokering
such transactions. Section 1(2), read with the light of Section 1(4), prohibits any form of
advertising for or with regard to such activities. Section 1(3) states that payment does not
include payment for defraying or reimbursing the removal, transportation, and preservation
costs and the payment of reasonable, expenses or loss of earnings to the donor.
Despite of what being gazetted by the government, people still consider allowing the
individuals to sell their tissues or organs as a way of reducing the discrepancy between
supply and demand. They arguing that the payment is same as the payment for the
participation in surrogacy and medical research. They also use the doctrine of utilitarianism
where it is prima facie predisposed towards allowing some types of commercial dealings in
human material, because of the high utility of live-saving tissue and organs for the recipient,
the cost savings of transplantation over many other treatment alternatives, the generally high
utility of facilitating autonomy, and the likelihood that some form of commercial market from
live providers will increase supply. Some utilitarians might, however, take a different view
because this general position contains differing theories of value and can lead to different
assessments of probable outcome.

The legal base for the donation of organs, human tissues and cells with transplantation
or therapeutic purposes is enacted in Law 12/93 of 22 April. It is actually substituted DL
553.7 of 13 July, which solely regulated the removal of organs and tissues from corpses.
After that, Law 12/93 was amended and newly published by Law 22/2007 of 29 June to
satisfy the mandatory transposition of European Parliament and Council Directive
2004/23/EC dated 31 March 2004.
Recently, in 2009, new piece of legislation was enacted i.e. Law 12/2009 of 26
March. It establishes the regime or quality and security of donation, harvesting, analysis,
processing, preservation, storage, distribution and application of tissue and cells of human
origin. The removal and transplantation of organs, human tissues and cells require strict
quality and professional standard. In respect for the legis artis amd exclusively in authorized,
public r private, hospital facilities, it shall be carried out under the direct surveillance and
responsibility of a physician.

The removal of the transplantation centres are submitted to periodical evaluation
regarding the developed activities and achieved results. The authorization requirements are
developed by PORT 31/2002 of 8 June. The coordination of the transplants is attributed to the
Removal of Organs and Transplantation Coordination (GCCOT), which are responsible for
the articulation between hospitals and removal and transplantation centres as to ensure
adequate and on-time removal (Article 2 and Article 3 of PORT). Today, the Authority for
Blood and Transplantation Services holds the control and supervision competencies as
enacted in DR 67/2007 of 29 May (Organic Statute).

The other substantial cause for concern about this type of donation is its potential for
making possible the buying and selling of organs. These practices are strictly prohibited by
law, yet they seem to be an inherent risk in directed donations to strangers. Wealthy patients
in need and healthy donors looking for a quick fix to their financial problems will always be
able to find ways around even the most earnest attempts to prevent money from changing
Although the business conducted on this organization's Web site does not raise any
fundamental ethical issues not already posed by other methods of solicitation, it does
introduce a new degree of visibility that increases the magnitude of the issue. Will competing
commercial Web sites begin to emerge? How will these sites be held accountable? Dr.
Jeremiah Lowney, the medical director of Matching, recently argued that just as
a dating service could not be held responsible for a bad date, his Web site has no
responsibility for the outcomes of its matches. Furthermore, the Web site has no mechanism
for ensuring the quality of the information it provides about transplantation and donation by
living persons or for checking the accuracy of information submitted by potential donors and
Given the life-or-death consequences of the procedure, organ donation should not be
governed by the ethics of caveat emptor. Nevertheless, has clearly
identified a need, and if this need is not met by a service that can address the ethical
challenges, the vacuum will be filled by other enterprises. Entrepreneurs commonly open up
useful new markets and services that must eventually become subject to rigorous standards
and regulations.
The solicitation of organs over the Internet is probably here to stay, but it will require
higher standards of responsibility and accountability than are currently in place. UNOS has
more than 20 years of experience in managing the cadaveric-donor pool and is in a good
position to extend its jurisdiction to include donation by living donors. The organization
recently considered the topic of solicitation and decided not to pursue building a Web site
similar to that of Matching but, instead, to provide educational information for
anyone who is willing to be a living donor of a kidney and to develop a nationwide
mechanism for allocating organs for nondirected donation by living donors.
This effort, however, does not go far enough. The proposal does not address directed
donation and leaves many critical aspects of donation by living donors to the transplantation
centers. Organ transplantation is big business, and each center is highly motivated to expand
its share of the pie. They therefore have intolerable conflicts of interest when it comes to
regulating themselves. Instead, UNOS should be charged with standardizing the process for
evaluating potential donors, ensuring that independent advocates are assigned to help donors
make an informed choice, developing mechanisms to deal with potential injury or death to
the donor, setting standards for both directed and nondirected donation, and prohibiting
transplantation when the chance of success is insufficient to justify the risks. Comprehensive
oversight is necessary if the ethical pitfalls are to be adequately addressed.