Organ procurement: various legal systems and their effectiveness.

I.INTRODUCTION

Throughout the world, organ transplantation has emerged as an important medical advancement in solving the problem of end-stage organ failure. Over the years, the success rates of these transplants have significantly improved, providing the critically ill with a chance for a new life.(1) For example, medical science has developed immunosuppressant drugs which greatly increase compatibility between donated organs and their recipients.(2) Other advancements include preservation techniques that extend organ life outside of the donor's body, more effective recipient registries, and increases in capable transplant teams.(3) Some new technologies are raising ethical and legal concerns among commentators. For example, British transplant surgeon Dr. Hany Riad pioneered elective ventilation, a process by which dying patients are sustained by respirators for brief periods to keep their internal organs alive.(4) Although the practice was made unlawful, causing scarcity in available organs, both the British Medical Association and the British Transplantation Society believe the practice is ethical so long as the donor's relatives give consent.(5)

Despite the advancements, the demand for organs significantly exceeds the available supply in countries around the world.(6) This organ shortage is the most devastating obstacle that organ transplant patients face. As technology continues to expand, the number of patients diagnosed as potential organ transplant recipients increases.(7) The disparity between supply and demand often leads to unethical and illegal methods of procuring needed organs. In many instances, the impoverished members of society supply organs for the privileged classes who can afford them.(8) Poor people are often coerced to sell their kidneys through unethical and unsafe procedures for a meager fee.(9) The organ deficit forces medical providers to decide which patients will receive life sustaining organs and which will not.(10) Desperate patients purchase organs on the black market when they feel they can no longer afford to wait for an organ to be supplied through legal channels.(11)

In recognition of the human rights abuses that are occurring to satisfy the demand of anxious organ recipients, many countries are passing laws to protect the exploited.(12) Recently, several European countries met in Spain to sign a treaty to protect living donors.(13) The council agreed that donor consent was necessary for any organ procurement law and that financial gain in the organ market was highly unethical.(14) The World Health Organization has also condemned the trade of human organs, asking member nations to fight organ trafficking.(15) Reports of underground organ brokers preying on children has spurred the United Nations to investigate allegations of an international kidnapping ring in Latin America.(16)

Fortunately, a sufficient quantity of potentially transplantable organs does exist to satisfy the demand for nearly every type of transplant.(17) The challenge is implementing an organ procurement policy that will maximize the supply while at the same time safeguarding human rights. Part II of this comment explores a controversial Brazilian law that was designed to increase the supply of transplantable human organs. This law was later repealed.(18) The advantages and disadvantages of the law will be presented as will the reaction from lawmakers, scholars, the medical community, and the public. Part III describes several different approaches to organ procurement in use throughout the world. Part IV outlines the strengths and weaknesses of various organ procurement policies. Part V examines the market system of organ procurement in more detail and describes various proposals that have been advanced in favor of adopting such a system. Part VI concludes that a market system may well be a viable solution to the desperate shortage of organs.

II. BRAZIL'S SOLUTION

The demand for organs overwhelmingly exceeds supply in the Brazilian organ market.(19) In 1996, a mere 2.7% of Brazilians in need of transplanted organs received them.(20) The low level of organ procurement in Brazil can be traced to both cultural and geographical factors.(21) The human corpse is treated with particular reverence in Brazil and cremations are very rare.(22) Many Brazilians are reluctant to consent to organ donation and many families are concerned with "desecrating" the remains of a loved one by allowing the harvest of organs.(23) Furthermore, the long distances between remote rural towns and the rugged terrain in between impede the successful transportation of organs.(24) Only 10% of the organs arriving at hospitals are in suitable condition for transplant.(25) Rural hospitals lack the modern health care facilities and equipment necessary to perform these complex operations.(26) Most transplants in Brazil are performed in Sao Paulo, where they average twenty-four per month(27) in contrast to the U.S. average of fifty-five per day.(28)

In response to this problematic organ deficit, Brazil decided to take legislative action to increase the supply of human organs for transplants. On January 1, 1998, Brazil enacted a law declaring all adults potential organ donors unless they filed for an exemption.(29) The law allowed organ removal from the deceased without any notification or family consent.(30) Upon death, if a person had not registered his or her intent not to be an organ donor with a special government agency, it was presumed that he or she had consented to donate his or her organs.(31) The family of the deceased from whom organs were removed had no remedy under the law unless they could show that the deceased had filed for non-donor status.(32) Furthermore, family members interfering with organ removal could have been sued.(33) According to Federal Attorney Geraldo Brindeiro, the law allowed doctors to remove organs against the wishes of the family but did not legally obligate them to do so.(34) Therefore, a doctor could have refused to remove organs if the family objected.(35) In contrast, the legal coordinator for the health ministry warned that doctors who refused to extract organs, regardless of the family's wishes, could be prosecuted for failing to assist a person in need.(36)

Despite the desperate need for human organs, scholars, the medical community, and the lay public expressed opposition to the Brazilian law. Critics feared the law would unfairly target the rural and uneducated who might not have realized that the new law made them potential organ donors.(37) Others were concerned that the law might have led to the removal of organs from a non-donor even before his or her actual death due to conspiracy or mishandling of documents.(38) A recent poll in Sao Paulo revealed that the law might actually have been counterproductive. While 75% of residents indicated a willingness to be an organ donor in 1995, this number fell to 63% in 1997 while the presumed consent law was being debated.(39) The poll also found a significant drop in the willingness of residents to consent to donating the organs of deceased relatives.(40)

The Brazilian Federal Medical Council, an independent association that monitors medical practices in the country, claimed that Brazil's infrastructure was incapable of administering such a complex plan.(41) Some critics maintained that the problem was not a lack of voluntary donors, but rather a lack of structure capable of distributing organs safely and rapidly to hospitals across the country.(42) Waldir Mesquita, president of the Federal Council of Medicine, believed the law violated "independence and freedom of belief," noting that millions of illiterate people could not afford to miss a day of work in order to pursue a non-organ donor identity card.(43) Even groups of patients awaiting transplants openly opposed mandatory donations.(44)

The first patient to benefit from the presumed consent law was Jose Morais Reis, a fifty-five year-old heart transplant recipient.(45) Reis received the heart of an unidentified donor who was declared brain-dead minutes before the operation took place.(46) According to Dr. Herbert Alves, Reis had been waiting four months for a donor heart and the transplant was a success.(47) Despite this success story, hospitals worried that presumed consent would prompt a permanent backlash against organ donation by the people of Brazil who treat the human corpse with special reverence.(48) The Federal Council of Medicine found fault with the requirement that two doctors, one being a neurologist, were required to determine whether a patient was legally dead.(49) Council officials claimed this approach was unsophisticated, adding that it would be virtually impossible to find a neurologist to make that determination.(50) However, some aspects of Brazil's law were embraced by medical professionals. One important feature of the law was the creation of a single waiting list for organ recipients.(51) Before the law was passed, patients were placed on waiting lists at individual hospitals, and as organs became available, they were distributed to both private and public hospitals, via rotation.(52) However, the lists at private hospitals where patients had more money, were considerably shorter than lists at public hospitals, which served the underprivileged.(53) Doctors "admit to cases when patients have died in over-stretched emergency facilities at public hospitals, only for the body to be whisked away for a transplant operation to a well staffed private hospital, full of the modern machinery which might just have saved the patient's life."(54)