Maurice Blackburn

Greg Walsh, Lawyer

Australia has one of the lowest organ donation rates in the developed world. In 2007, there were only 198 individuals whose organs could be transplanted to other people, yet there were over 1700 individuals who were on the organ transplant waiting list. Even taking into account that the organs taken from one individual can be used to help many others, there is still a drastic shortfall in the number of organs needed, which is resulting in many Australians needlessly suffering and dying each year. Unfortunately, the problem of lack of availability of organs for donation is predicted to become worse in the future due to our ageing population, and the increased incidence of diseases like obesity and diabetes.

Current arrangements

The current procedure for organ donation in Australia is an 'opt in' system where the donor can register their consent (or objection) to donating their organs on the Australian Organ Donor Register. Organs are only suitable for donation if the donor dies in the intensive care unit of a hospital and on a ventilator that keeps their organs functioning. If a person dies under these conditions then their organs will only be removed after two doctors have confirmed that the donor is brain dead, the organ register has been checked to determine whether the deceased registered their consent or objection to organ donation, and the views of the family members of the deceased have been sought to confirm that the organ donation can proceed.

One approach to improving organ donation rates that is periodically considered is that of adopting a system where an individual is presumed to consent to donate their organs unless they officially register their refusal to donate.

Increasing the number of organs donated

The key argument in favour of adopting a system of presumed consent for organ donations is that it will significantly increase the rate of organ donation in Australia. Many countries throughout the world adopt the presumed consent approach to organ donation and some of these countries have a comparatively high rate of organ donation. For example, Spain adopts a presumed consent approach and has the highest rate of organ donation in the world at around 35 donors per million, which is about three times the rate of donation in Australia.

The claim that a move to a presumed consent approach to organ donations will actually increase the rate of organ donation has been widely contested. For example, in 2008, the Queensland Government established the Review of Organ and Tissue Donation Procedures Select Committee to investigate and report on the merits of adopting a presumed consent approach in Queensland. The committee delivered its report in October 2008 and stated that it "did not identify any convincing evidence that organ and tissue donation rates would improve significantly under a system of presumed consent". The committee also declared that there was evidence from international experience that a move to a presumed consent approach to organ donation could even decrease the rate of organ donation if it was "introduced without sufficient public support and without changes to hospital systems to support organ and tissue donation".

Proponents of the presumed consent approach accept that it can be difficult to prove a causal relationship between adopting a presumed consent approach and increased donation rates. However, these proponents argue various studies that compared different countries have provided persuasive evidence that the countries that have consistently implemented a presumed consent approach have a higher rate of organ donation. Proponents also accept that there are many different factors that account for the level of organ donation in a state which also influence the success of any move to introduce a presumed consent model, such as the availability of potential donors, infrastructure for transplantation, investment in healthcare, and public attitudes. However, supporters of a presumed consent approach claim that the approach should be introduced in many countries, at least on a trial basis, due to the large number of lives that could be saved or significantly improved if the change was successful in increasing the rate of organ donation.

Interests of the donor and their family

The presumed consent model is also argued to be supportive of the autonomy of individuals. Such an argument is contrary to the claim made by many critics that a presumed consent model is unethical, as it fails to show appropriate respect for individual autonomy by forcing them to make a moral decision about donating their organs. This criticism is claimed to be particularly valid in relation to the disadvantaged in society who, for psychological, social or financial reasons, may be unable to adequately appreciate the implications of a presumed consent model or be unable to express their objection to their organs being donated, with the result that their organs may be removed without their consent.

However, proponents of the presumed consent model argue that it is supportive of the autonomy of individuals as most Australians support organ donation but fail to register their consent due to reasons such as time limitations, financial constraints or apathy. It is argued that a presumed consent model will more appropriately allow the Commonwealth Government to fulfil the desires of the majority of Australians who want to donate their organs, but who are not currently supported in doing so through the 'opt in' approach to organ donation.

Although a change to a presumed consent model might result in some individuals donating their organs when they would have objected, this needs to be balanced against the greater number of individuals whose organs are not being donated when they would have consented. Proponents argue that this conflict between the competing claims to respect for autonomy should be resolved in favour of the presumed consent model, considering that the model could significantly increase the level of organ donation to the great benefit of many Australians. Furthermore, most presumed consent models provide the family members of the deceased with the final decision as to whether the organ donation will proceed, which is a further safeguard against the organ donation process being abused especially in relation to the disadvantaged. Finally, health professionals can assess whether the individual or their family members are able to validly consent to the organ donation process, and decide whether in the circumstances of each case it is appropriate for the organs of the individual to be donated.

Drawbacks of a presumed consent approach

Critics of presumed consent argue that the experience of other countries that have adopted a presumed consent approach provides a strong justification for retaining the current 'opt in' method of organ donation. In particular, they highlight the situation of Brazil, which introduced a presumed consent system but had to withdraw the system because it caused many people in the country to distrust the healthcare system, especially in relation to the integrity of the organ collection process. Others argue that if such a system was introduced in Australia it could create the perception that the government is inappropriately interfering in the lives of citizens and is claiming ownership over the bodies of Australians.

A further criticism of the presumed consent model is the possibility that it might undermine the altruistic status of organ donation, changing the concept of organ donation from an expression of humanitarian concern to being an obligation to the government to be fulfilled. Others argue that there are alternative changes that could be made to the system of organ donation that might be more effective in improving the rate of organ donation in Australia without some of the drawbacks associated with the presumed consent approach. For example, many are critical of the current situation, which allows family members of the deceased to refuse to allow an organ donation operation to proceed even if the deceased had previously registered their consent to organ donation. Other approaches that could also be considered by future governments include financial incentives for organ donation, giving patients who are registered as organ donors priority in accessing available organs, and allowing various procedures aimed at preserving organ quality to be carried out on terminally ill patients who have consented to donating their organs while the patient is still alive.

Next move for Australia?

The current rate of organ donation in Australia is unacceptably low and governments throughout Australia are appropriately focusing significant resources in an attempt to meet the increasing demand for organ transplantation. One possible approach to addressing the shortage of organs available for transplantation is to move to a system of presumed consent in relation to organ donation, but there are still many who would resist such a change. Despite these valid concerns, there is merit in the introduction of a presumed consent model, at least on a trial basis, because if it were successful in increasing the rate of organ donation then there would be a significant reduction in the number of Australians who needlessly suffer and die each year from the current lack of supply of suitable organs.