Alberta's new organ and tissue donation law: the Human Tissue and Organ Donation Act.

AuthorNelson, Erin

In 2006, Alberta passed new legislation concerning donation of human organs and tissues. According to the Government of Alberta, the intent of the legislation is to "broaden the scope of and modernize" Alberta's 33-year-old legislation, the Human Tissue Gift Act. (1) In introducing the Bill to the Alberta Legislature, MLA Dave Rodney outlined a number of modifications that will flow from the new statute. These include the following', changes to definitions within the legislation (aimed at both modernizing the terminology and to reflect some of the other changes to the HTGA); provisions that permit living donation by minors in some circumstances; the creation of independent assessment committees designed to protect the interests of minors who are living donors; changes to consent requirements; provisions directing mandatory consideration for donation; provisions respecting quality assurance mechanisms, including registries of personnel and facilities; specific provisions respecting confidentiality of health information; and changes to fines for contraventions of the Act.

The Human Tissue and Organ Donation Act (2) was proclaimed into force on August 1, 2009. While some of the modifications made by the Act are quite minor, some have the potential to effect broader change in human organ and tissue donation practice. Will the Act achieve its aims? Are we in for significant change on the organ and tissue donation front?

In this brief article, I examine the salient aspects of the Human Tissue and Organ Donation Act. First, I discuss the changes that relate to cadaveric donation, including consent and mandatory consideration for donation. Second, I focus on the changes related to living donation, including donation by minors and independent assessment committees. Finally, I consider modifications that are relevant to both cadaveric and living donation: quality assurance/registry, confidentiality, and fines for contravention of the Act.

  1. Deceased donors

    Consent and Organ Supply

    A perennial and well-documented problem in organ transplantation is the fact that need for organs far outpaces the supply of organs available for transplantation. In 2008, 4,380 Canadians were awaiting transplants, and 215 died while waiting. (3) Although statistics on tissue donation are not kept in a similar manner, recent research suggests a significant (and growing) unmet demand. (4) Governments seem to continually look for ways to increase the supply of organs, and often zero in on law and practice around consent as a perceived barrier to increased participation in organ donation programs. (5) Alberta's new law is no exception in this respect, in that a clearly articulated aim of the government in advancing the new legislation was to "strengthen the donation program" by ensuring that the wishes of a deceased potential donor in favour of donation will be honored, even where those wishes conflict with the express desires of the next of kin. According to Dave Rodney, the notion that the consent of the potential donor should take precedence over any conflicting wishes of the family "represents a change in current practice. Clinicians generally require consent from next of kin even when the known wishes of the deceased were indicated by a donor card or other document."

    Mr. Rodney is quite correct that current practice does not respect the consent of a deceased potential donor if the next of kin does not also provide consent for organ donation. Most human organ procurement agencies take the view that donor consent, on its own, is not sufficient to permit the removal of organs from a potential donor's body. (6) But it is questionable whether a change to the legislation was needed in order to permit agencies (such as HOPE, the Human Organ Procurement Exchange agency in Alberta) to rely on the deceased's signed donor card.

    Section 4 of the HTGA provides:

    4(1) Any adult person may consent,

    (a) in a writing signed by the person at any time, or

    (b) orally in the presence of at least 2 witnesses during the person's last illness, that the person's body or the part or parts of it specified in the consent be used after the person's death for therapeutic purposes, medical education or scientific research.

    ...

    (3) On the death of a person who has given a consent under this section, the consent is binding and is full authority for the use of the body or the removal and use of the specified part or parts for the purpose specified, except that no person shall act on a consent given under this section if that person has reason to believe that it was subsequently withdrawn, [emphasis added].

    The new legislation, section 9 of the HTODA, provides as follows:

    9(1) A consent required by this Act must be

    (a) in writing,

    (b) dated, and

    (c) signed

    (i) by the consenter and a witness, or (ii) if a consenter cannot sign for any reason, by 2 persons who witnessed the agreement to the donation by the consenter.

    ...

    (3) A consent on the form provided on a certificate of registration issued under the Health Insurance Premiums Act is valid notwithstanding that it is not dated.

    The new legislation obviously provides more explicitly for the validity of a potential donor's consent where that consent is manifested as a signed organ donor card (the back of the Alberta Health Insurance premiums card). However, section 4 of the old Act said much the same thing, albeit in slightly less direct language. Looking at the two sections side-by-side, it is difficult to conclude that the new statutory language will lead to a change in current consent practice.

    Given the clear language in the HTGA specifying that a donor's consent is binding and provides full authority for the removal and use of organs, together with the language of section 4(1), which plainly states that a consent is valid if provided in writing and signed by the deceased person, why are procurement agencies reluctant to rely on donor consent? There are several factors that might contribute to this unwillingness to act on a donor's wishes in the absence of further consent by the donor's next of kin--legal uncertainty, concern for the family, and worries about the public perception of organ procurement programs. (7)

    Several legal considerations lead to the uncertainty expressed by those involved in organ transplantation programs. First, while it has long been held at common law that there is no property in a dead body, (8) families (or the executor of the deceased's estate) have traditionally been understood to have property-like interests in the body of the deceased. (9) The scope of these rights is limited, but families do have possessory rights of control, as well as duties respecting dead bodies. There are also Criminal Code provisions prohibiting interference with and mutilation of dead bodies. (10)

    These legal mechanisms have never been engaged in the context of organ retrieval for purposes of transplantation, but nevertheless might be viewed as a potential threat by those involved in transplant programs. The likelihood of any member of a transplant society or organ procurement agency being held liable in a lawsuit brought by the family or next of kin of a deceased donor who has signed an organ donor card is extremely low. (11) And the risk of a participant in organ or tissue retrieval being convicted of an offence under s. 182 of the Criminal Code is nil. But the very idea of a lawsuit or possible charge might be enough to chill the practice of actually relying on donor consent, instead of seeking consent from the donor's family.

    Aside from these general legal considerations, it seems quite clear that at least some organ procurement professionals are uncertain about the law, in light of comments made at two workshops I attended in February and March 2009. (12) I was asked to speak about consent to organ and tissue donation, and I discussed both the old and the new legislation in the course of this presentation. Both workshops included members of HOPE and the Comprehensive Tissue Centre (CTC). And, at both workshops, the same comment was made (each time by a member of HOPE) that it was their understanding that once a potential donor has died, the donor's consent ceases to have any legal effect. The view of the HOPE participants was that...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT