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Directed donation and ownership of human organs

Published online by Cambridge University Press:  02 January 2018

Shaun D Pattinson*
Affiliation:
Durham Law School

Abstract

This paper explores the issue of donation of organs from deceased donors for transplantation into a specified recipient. It argues that proper account should be taken of the principles underlying the Human Tissue Act 2004, which grant the donor a form of proprietary control. Three hypothetical scenarios are then used to draw out the implications of these principles for existing regulatory policy and the common law response to excised human organs. The paper concludes that the law should be understood as recognising ownership in organs removed from living and deceased persons and as offering opposition to the prohibition of directed donation that can only be coherently removed by reform of the 2004 Act.

Type
Research Article
Copyright
Copyright © Society of Legal Scholars 2011

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References

1. ss 1 and 5. In Scotland, the Human Tissue (Scotland) Act 2006 requires ‘authorisation’, rather than ‘appropriate consent’.

2. See DH (Department of Health) An Investigation into Conditional Organ Donation: The Report of the Panel (London: HMSO, 2000).Google Scholar

3. Ibid, at [6.1].

4. See Price, D Human Tissue in Transplantation and Research: A Model Legal and Ethical Donation Framework (Cambridge: CUP, 2009) p 276 CrossRefGoogle Scholar and the Uniform Anatomical Gift Act 2006, s 11(a).

5. See HTA (Human Tissue Authority) ‘HTA Statement on Directed Donation of Organs After Death’ (14 April 2008).

6. See BBC ‘Mother Denied Daughter's Organs’ (12 April 2008), available at http://news.bbc.co.uk/1/hi/england/bradford/7344205.stm.

7. See DH Requested Allocation of Deceased Donor Organ (London: UK Health Administrations, 2010).Google ScholarPubMed

8. See ibid, esp [25].

9. See ibid, at [3].

10. See ibid, at [24].

11. Seminally advanced in Beyleveld, D and Brownsword, R Human Dignity in Bioethics and Biolaw (Oxford: OUP, 2001)Google Scholar ch 8.

12. Defined in s 53 as all material that ‘consists of or includes human cells’ with specified exclusions. Excluded from the definition are gametes and embryos, hair and nails from the body of a living person, and human material created outside of the body (such as cell lines): ss 53(2) and 54(7).

13. ss 1, 5, and Sch 1(1), para 7.

14. ss 2 and 3.

15. s 3(6) Qualifying relationships, ranked in order in s 27(4), are the individual's (a) spouse or partner, (b) parent or child, (c) brother or sister, (d) grandparent or grandchild, (e) niece or nephew, (f) stepfather or stepmother, (g) half-brother or half-sister, and (h) friend of long standing. Where there is more than one person at the same level of the hierarchy, the consent of one will be sufficient: s 27(7).

16. s 2(7).

17. One of the reviewers has pointed out that the Human Tissue (Scotland) Act 2006 contains a provision, s 49, which expressly permits conditions to be attached to the authorisation of removal and use of parts of the body of a deceased person, but that provision does not apply to authorisation for transplantation. Thus, the Scottish Act prohibits conditions being attached to donation for transplantation. The 2004 Act contains no such provision.

18. See eg Hardcastle, R Law and the Human Body (Oxford: Hart Publishing, 2007)Google Scholar and Price, above n 4, ch 8.

19. See, in particular, the discussion of Williams Haynes' case (1614) 12 Co REP 113 (Lent Assise) and Exelby v Handyside (1749) 2 East PC 652 (CCP) in Matthews, P ‘Whose body? people as property’ (1983) CLP 193 Google Scholar at 197–198 and 208–210, respectively. See also Skegg, Pdg ‘Medical uses of corpses and the “no property” rule’ (1992) 32(4) Med Sci Law 311 CrossRefGoogle Scholar.

20. See Honoré, Am ‘Ownership’ in Guest, Ag (ed) Oxford Essays in Jurisprudence (Oxford: OUP, 1961) pp 107147 Google Scholar. Honoré's theory has recently been applied to the human body in Quigley, M, ‘Property and the body: applying Honoré’ (2007) 33 JME 631 Google Scholar.

21. See Beyleveld and Brownsword above n 11. Their definition is described as ‘especially persuasive’ in Price, above n 4, p 232.

22. See ibid, p 172.

23. Ibid, p 177.

24. s 32(1)(a) and (3). ‘Controlled material’ is defined in s 32(8) and (9) as any material that ‘consists of or includes human cells’, is (or is intended to be) removed from a body and is intended to be used for transplantation. Embryos, gametes and material that is the subject of property because of an application of human skill are excluded from the definition.

25. [2009] EWCA Civ 37 [45].

26. s 12(1)(e).

27. s 32(9(c), my emphasis.

28. Pattinson, Sd Medical Law and Ethics (London: Sweet & Maxwell, 1st edn, 2006) p 473 Google Scholar.

29. J Herring and PL Chau ‘My body, your body, our bodies’ (2007) 15 Med L Rev 34 at 39.

30. Ibid.

31. For an argument against the blanket prohibition of selling one's own organs see Pattinson, Sd ‘Paying living organ providers’ (2003) Web JCLI Google Scholar and Organ trading, tourism, and trafficking within Europe’ (2008) 27 Med Law 191 Google Scholar.

32. Thus, the provision is actually neutral on the issue in question here.

33. Above n 22, at [38].

34. Price, above n 4, p 232.

35. DH, above n 2, at [6.1].

36. 2004 Act s 32 and the Human Organ Transplantation Act 1989 s 1, respectively.

37. DH, above n 7, at [10].

38. Ibid.

39. Such a fear may even focus on particular groups, such as perhaps older people or the (capacitated) mentally challenged.

40. DH, above n 7, at [10].

41. s 1(e)/(f).

42. s 2(2) and 3(2).

43. s 2(3).

44. s 6 and Human Tissue Act 2004 (Persons who Lack Capacity to Consent and Transplants) Regulations 2006/1659, reg 3(2)(a).

45. See Pattinson, Sd Medical Law and Ethics (London: Sweet & Maxwell, 2nd edn, 2009) pp 476480 Google Scholar.

46. See Code of Practice 2, Donation of solid organs for transplantation [26] and Regulations 2006/1659, reg 12(4)/(5).

47. Under the Human Organ Transplants Act 1989, the approval of the Unrelated Live Transplant Regulatory Authority (ULTRA) was required prior to a living organ transplant, unless the recipient was genetically related to the donor. On the practices of ULTRA see DH Human Bodies, Human Choices: The Law on Human Organs and Tissue in England and Wales. A Consultation Report (London: DH, 2002)Google Scholar at [14.29].

48. NHSBT Transplant Activity in the UK: 2008–2009 (London, 2009) p 7.

49. See Hilhorst, Mt ‘“Living apart together”: moral frictions between two coexisting organ transplantation schemes’ (2008) 34 JME 484 Google Scholar; Cronin, Aj and Price, D ‘Directed organ donation: is the donor the owner?’ (2008) 3 Clinical Ethics 127 CrossRefGoogle Scholar at 128; Antonia, Aj and Douglas, Jf, ‘Directed and conditional deceased donor organ donations: laws and misconceptions’ (2010) 18(3) Med L Rev 275 Google Scholar.

50. DH, above n 7, at [3] (original emphasis).

51. Ibid.

52. Cf the actions of the Northern General Hospital and the NHS allocation body (then the United Kingdom Transplant Service Support Authority) in July 1998 when accepting a donation that was conditional upon the recipients being white. The subsequent investigation led to the 2000 report, which concluded that complying with racist views would contravene the legislation then in force, the Race Relations Act 1976: see DH, above n 2, at [5.1]–[5.4].

53. See DH, above n 7, at [25].

54. Douglas, Jf and Cronin, Aj ‘Requested allocation of a deceased donor organ: laws and misconceptions’ (2010) 36 JME 321 Google Scholar.

55. Cronin, Aj and Douglas, Jf ‘Directed and conditional deceased donor organ donations: laws and misconceptions’ (2010) 18(3) Med L Rev 275 CrossRefGoogle Scholar at 299. These authors also convincingly argue that if a family makes a donation unconditional only because of NHSBT's insistence that conditional donation is unlawful, the consent could be regarded as ‘vitiated by this misinformation and as a result any failure to honour the request would become illegal’ (ibid, at 297).

56. Pfizer Corporation v Ministry of Health[1965] AC 512 (HL); Reynolds v Health First Medical Group[2000] Lloyd's Rep Med 240 (CC).

57. [2009] EWCA Civ 37.

58. Ibid, at [18]–[24], esp [23].

59. Ibid, at [23].

60. 1908 6 CLR 406 (HCA).

61. Ibid, p 414.

62. [1997] 1 WLR 596 (CA).

63. [1999] QB 621 (CA).

64. Ibid, p 631 (Rose LJ).

65. [1997] 1 WLR 596, 602 (Gibson J).

66. [1999] QB 621, 631.

67. [2009] EWCA Civ 37 [45]. As Price notes, the work and skill exception ‘would have served to have conferred rights on the Unit not the men themselves’: Price, above n 4, p 257.

68. Ibid.

69. Ibid.

70. Ibid, at [45].

71. Ibid.

72. Beyleveld and Brownsword, above n 11, pp 182–183.

73. [2009] EWCA Civ 37 [30].

74. See Beyleveld and Brownsword, above n 11, p 182.

75. [2009] EWCA Civ 37 at [30].

76. [2005] UKHL 18 at [8].

77. Cf Hardcastle, above n 18, pp 146–150 and Price, above n 4, pp 240–241, 267.

78. It follows that theft is not on a par with slavery, trespass to goods is not on a par with trespass to the person, etc.

79. R v Herbert (1961) JCL 163.

80. The 2004 Act renders it lawful to treat as ‘waste’ bodily materials removed during surgery and related medical procedures when they cease to be stored or used for a specified purpose: s 44. See also the discussion of abandonment in Price, above n 4, pp 251–252.

81. The prohibition of commercial dealings prevents Bob from lawfully providing the consideration necessary for a contractual relationship to arise.

82. See s 3.

83. ss 3(6)(b)(ii) and 4.

84. A point also made by Nwabueze, Rn ‘Donated organs, property rights and the remedial quagmire’ 2008 16 Med L Rev 201 CrossRefGoogle Scholar at 209.

85. Colavito v New York Organ Donor Network 356 F Supp 2d 237 (EDNY 2005); 438 F 3d 214 (2nd Cir 2006); 6 NY 3d 820 (NYCA 2006); 8 NY 3d 43 (NYCA 2006); 486 F 3d 78 (2nd Cir 2007).

86. 356 F Supp 2d 237, esp p 246.

87. 438 F 3d 214, p 224.

88. Ibid.

89. 8 NY 3d 43, p 53.

90. Ibid, my emphasis.

91. 486 F 3d 78, p 81.

92. The reliance on the 2004 Act being equally supportable in the case of a deceased donor.

93. Cf Cronin and Price, above n 49, at 130.

94. See above n 19.

95. (1882) 20 ChD 659 (Ch) pp 662–663.

96. R v Sharpe (1857) Dears & B 160, 169 ER 959 (CCR).

97. See Matthews, above n 19, at 210–212 and Skegg, above n 19, at 312.

98. [1999] QB 621, pp 630–631.

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