Legality of Organ Donation

Progress in medical science and technology has contributed to the growth of kidney and other organ transplantations around the world. Nevertheless, the gap between the supply and demand for transplantable organs continues to widen. Chronic shortage of human organs for transplantation is one of the most pressing health policy issues in many developed countries. In recent years, the persistent scarcity of organs for transplantation has invigorated the controversy about the determinants of organ donation rates and the magnitude of their effects.

In spite of the media campaigns and other attempts to promote donation, the organs supply cannot keep up with the demand, and the number of patients on waiting lists has been growing steadily during the last decade. The Philippines is no exception to the dilemma on the shortage of transplantable human organs and there is no clear cut policy yet on how the shortage could be swiftly addressed. The Department of Health (DoH) is currently pushing for "cadaveric organ donation" and this perhaps, might lessen the gap between the supply and demand for transplantable human organs.

But how can one tinker freely with the body of a deceased person? Are there laws in the country which give blanket authority to hospital institutions or to a medical practitioner in harvesting transplantable human organs from a deceased person even without a document or a health card indicating that the deceased is a willing donor? The answer is a resounding ‘None’. The Philippines has yet to come up with a law regarding ‘presumed consent’ unlike in many European countries, particularly Spain, which for so long a time has been implementing their own and unique versions of ‘presumed consent laws’.

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Under presumed consent legislation, a deceased individual is classified as a potential donor in absence of explicit opposition to donation before death. With the positive effect of presumed consent laws vis-a-vis organ donation rates on countries which enforced such, it is high time that the Philippines should follow suit and come up with its own version of presumed consent laws. Senator Richard Gordon took the initiative in making the battlecry for the passage of a presumed consent law as he was astounded by the staggering figures of the

National Kidney Transplant Institute (NKTI). The Institute reported that the usual Filipino kidney transplants performed thereat have gone down by 20% while the demand for kidney donation is going up by ten (10) percent annually. Global Reality. Waiting for a suitable donor organ to become available may take one week to many months. Unfortunately, the latter is more often the case. This waiting time has been described by many transplant recipients and their families as the most difficult part of the transplant process.

Fear and anxiety are normal reactions during this period of uncertainty. In Europe, the average waiting time is three years and is expected to last for ten years or until 2010. With 120,000 patients on chronic dialysis and 40,000 patients waiting in line for a kidney in Western Europe alone, about 15 to 30 % of these patients will die annually because of organ shortages. Every day in the United States, 17 people die waiting for an organ transplant.

The number of people in the waiting list for an organ has more than tripled over the last ten years; at the same time, the number of donors has remained relatively stagnant. In the United Kingdom, the active transplant waiting list is increasing by about 8% a year, and the ageing population and increasing incidence of Type 2 diabetes are likely to exacerbate the shortage of available organs. In 2006, the UK Organ Donation Task Force was established with the task of identifying barriers to donation and making recommendations for increasing organ donation and procurement within the current legal framework.

In the U. S. , Great Britain and in many other countries, the gap between the demand and the supply of human organs for transplantation is on the rise, despite the efforts of governments and health agencies to promote donor registration. In 2002, 6679 patients died on the U. S. organ waiting lists before an organ became available, roughly 18 per day . In 2001, 6,439 people died while waiting for a transplant, nearly double the 3,916 candidates who died while waiting just five years earlier in 1996.

In spite of media campaigns and other attempts to promote donation, the supply of organs cannot keep up with the demand, and the number of patients on waiting lists has been growing steadily during the last decade. One of the most frequently quoted explanations of the gap between the supply and demand of organs is that the number of families that refuse to grant a consent to donation is still large. Approximately 50% of the families that were approached for an organ donation in the U. S. and Great Britain refused it, compared to around 20% in Spain and around 30% in France.

Notably, Spain and France are presumed consent countries. In many countries, including the U. S. , Great Britain, Germany and Australia, cadaveric organ procurement is carried out under the informed consent principle. Under an informed consent law, cadaveric organ extraction requires the explicit consent of the donor before death, which is usually re? ected on a donor registration card. In contrast, in most of continental Europe, cadaveric organ procurement is based on the principle of presumed consent.

Under presumed consent legislation, a deceased individual is classi? ed as a potential donor in the absence of explicit opposition to donation before death. The severe shortage of human organs for transplantation in the U. S. has prompted numerous proposals to alleviate this problem. In addition to presumed consent legislation, proposals include ? nancial incentives for donors , xenotransplantation, educational campaigns, organ exchange mechanisms for living donors with incompatible recipients and preferential assignment of organs to registered donors.

However, increasing donation consent rates from families is still viewed as the most promising route to increase organ donation. Many analysts and health professionals believe that presumed consent legislation may play an important role in shaping the decision of the families. In an international survey of transplant professionals, 75% of the respondents supported presumed consent legislation, and 39% identi? ed this type of legislation as the most effective measure to increase donation rates, the highest percentage among all measures considered in the survey, followed by improved education with 18%.

Several countries, including Spain, Austria, and Belgium, have opted for a change in legislation and introduced presumed consent, whereby organs can be used for transplantation after death unless individuals have objected during their lifetime (an opt out system). Countries vary in how organ donation legislation functions in practice, and the terms “hard” and “soft” have been used to characterize how much emphasis is placed on relatives’ views in these countries. In Austria, for example, a fairly strong version of presumed consent principle is applied, although family views may be taken into account.

In Spain, as in most presumed consent countries, even when organ removal can be carried-out by law without the consent of the family, organ coordinators in charge of the donation process do not authorize the extraction of organs without an explicit family approval. Another notable example is Sweden, which goes from an informed consent system to a presumed consent system in 1996. Ten years before, in 1986, Sweden had switched from presumed consent to informed consent. In the data, cadaveric donation rates decreased steadily in Sweden during the informed consent period.

This downwards trend seemed to disappear after presumed consent legislation was reinstituted in 1996. National Reality. The National Kidney and Transplant Institute Renal Disease Control estimated 11, 250 Filipinos nationwide developing End Stage Renal Disease (ESRD) annually. It is estimated that half of these ESRD patients are suitable kidney transplant candidates but only five percent (5%) are actually transplanted to date because of insufficient organ supply and the affordability of the operative procedure to most patient.

The past years have also witnessed the development of "medical tourism" as exemplified by countries like India, Thailand and Singapore (but now world-wide) as improved hospital facilities in the less developed countries have attracted patients from developed countries where health care costs were expensive and unaffordable especially to those with no health insurance. In 1999, a TV documentary exposed more than a hundred kidney transplants done in a private hospital from living non-related donors coming from the very poor section of the metropolis, called BASECO in Tondo, Manila.

The Philippines is among the world's leading providers of trafficked organs. Reuters named China, Pakistan, Egypt, Columbia and the Philippines as the five organ trafficking hotspots. Trafficked organs are either sold domestically, or exported to the US, Europe, the United Arab Emirates, Saudi Arabia, and especially Israel for their transplant patients. In his privilege speech, Senator Miguel Zubiri tackled about the CNN’s feature regarding the thriving trade of human organs, amidst the poverty in the country.

Although he commented in CNN’s report where Mr. Hugh Reminton made an erroneous slant on the human organ trade in the country, Zubiri admitted that there are some truth to the report. The truth is – human organ trade, particularly kidneys, is thriving in the country, specifically in the urban poor communities; that after paying-off the donor, the trader abandons them to face post-surgery risks also without medical attention.

In addition to this, the organ transplant sector is rife with stories of traders earning millions of pesos after paying-off donors. This statement could be supported by an incident of kidney sale in Lumban, Laguna where Jose Rivero, 31, a tricycle driver, told the National Bureau of Investigation (NBI) that he had been promised by the broker that he would be paid Php 300,000. 00 for his kidney. However, he received only Php 66,000. 00 which led him to report to the NBI.

Special Investigator 3, Joey Narciso, the case officer, said that the country has no law prohibiting the direct sale of organs to a donor. Nothing has been heard of being caught and punished, of conniving surgeons or clinics who knowingly transplant organs that have been sold. Zubiri even suspected that there are big syndicates that prey on the poor and helpless citizens and exploit their ignorance and vulnerability; syndicates which have a growing clientele that includes foreigners and rich Filipinos.

During the same session, Senator Gordon disclosed that the NBI is investigating the alleged involvement of doctors and other medical personnel of prominent hospitals in the illegal organ trade after members of a syndicate were arrested for duping several people from Batangas, Quezon and neighboring provinces into selling their organs. Gordon recommended the adaptation of a presumed consent. Zubiri stated that the suggestion could be included in the Senate Bill No. 460 , authored by Senator Jose Jinggoy Estrada.

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