CONSENT IN ORGAN DONATION

Introduction

Last week, in Mumbai, a father who lost her teenage daughter in a deadly car accident decided to donate her organs to the Nanavati Hospital after he spoke to the counsellor at the hospital.  Donation included kidneys, liver and skin from the back and thighs.

In the wake of increasing demand for organs and transplant surgery’s _ the act of the father is indeed emotionally brave and medically & socially appreciable. One does tend to categorise such an act as being medically and socially important because the act of donation of organs in India is still viewed from the microscope of religious and cultural reasons.

The incident narrated above invites a discussion around various legal, moral and medical issues. To be able to appreciate all would not be possible in the given word space. I therefore choose to critically discuss one of the most important issues arising from a combination of these issues. The issue is whether the father has any right in the body of the dead teenage daughter to entitle him to make a decision with respect to his daughter’s organ donation. Medically the act is much appreciated and legally much questioned. Legally speaking – the act arouse a controversy around – who is entitled to donate whose organ? Can family members, including spouses, donate each other’s organs? (Reference: donation after death only).

Organ Donation

Even though, science applauds donations from a cadaver as it proves to be of great help to someone in need of those organs, religious and cultural reasons de-motivate such decisions in India.  This raises two very pertinent issues. One, whether the cultural and religious reasons are hindrances in the growth of science and medical research and two, whether the religious and cultural reasons out – weigh the moral and somewhat-religious duty to help and save human life.

Imperial studies reveal that 500 (lucky people) out of 20000 (needy people) get a liver transplant in India.  These surgeries are carried out by the Zonal Transplant Committee which is not a profit making organisation. It helps in the distribution of organs from cadavers in Maharashtra. The purpose of the committee rests in moral idea of saving lives of people in need of organs. Though by merely allocating the organs one cannot ensure that these organs are being given to the patients in absolute and dire need of the organ over the ones who could afford the surgery. This poses the issue of rationing of the recourses appropriately. Though no straight jacket formula or policy could be devised to conclude what form of allocation and use is appropriate but a basic level interference by the government dictating the terms of use of the limited donated organs could assisting in boosting appropriate supply.

Evidence shows that there is a growing demand for organs in the medicine world as well. Demand for liver has been recorded at 1900 and demand for kidney at 2000. Even in the wake of these figures the awareness of organ donation among people is bleak.  And hence, awareness campaigns, like the one’s run for eye donation could prove as a useful tool to increase number of donors – cadavers.

Consent to Donate: Autonomous

The question of who has a right to decide what is to be done with one’s body invites a discussion on ‘autonomy’. The right to exercise autonomy gives an individual the right to exercise his liberty in respect of what he wishes to do with his life and body. But one can always ask – if the exercise of autonomy is relational in nature _ that is if our decisions of life are based on considerations of relationships we share with other people. For instance – A women’s decision to terminate may be driven by her husband’s will as well – thought her right to autonomy (on paper) will hands down trump the relational approach (parent’s deciding) of autonomy. But that seldom happens. Hence, how far can we stretch the idea of relational autonomy to allow relations taking decisions that involve donating organs?

Do organs give any sort of right to the individual who possess them? Clearly not in cases where there is no external interference. And also not in cases where there is intervention (like in cases of surgery) and interference (like in case of battery – assault – rape etc) with consent.

Hence – we are left with cases where donation of organs is without the consent of the person whose organs are being donated (for reasons of being dead and there being no advance directive with respect to his will) by a relative?

Consent of kith and kin: medically sound, legally questionable

Firstly, as always, morally speaking it is not incorrect if your spouse decided to donate your body part after you died? But will it be incorrect, if he did it for money? Socialist would shout – ‘that isn’t donation – that’s a commercial sale of organs for money’. Is that bad?  The act is the same _ donating organs, so then how does the motive of making money make it bad? There is no harm in encouraging donation for a token of money (like we encourage humans to be a part of medical research for monetary benefits) but then I fear to deal with regulating prices in ‘organ market’ given that family members would be motivated to sell the organs of their relatives.

A relative with an s will be a plural word. Let’s narrow it down. Who are the relatives we can really bestow the entitlement on? If we were to consider organs as property of the dead – the Laws of Inheritance in India would hold the spouse on top, followed by children of the dead and then the first family of the dead – and in case of unmarried people – their family. This seems simple! The problem arises where we do not consider organs as property of the dead – rather organs as being everything but property. In that case no one – but only the dead should be allowed to decide what is to be done with his body organs. That is of course - not possible.

Hence, the baton of deciding the course of things is to be handed over to someone. The state and the government have given us laws that encourage organ donation – which means the act is a sanctioned one and not illegal. The medical counsellors – like the one in Nanawati Hospital carry out their duty to talk to the relatives of the dead for convincing them for organ donation (This is after they have seen and analysed the corpus and conclude the potential of the organs being useful). And finally the decision making is left to the relative of the dead. This seems to be an established channel of consent for organ donation. I am just sceptical about the interference of the mother of these daughters – who may object to the consent given by the father.