Orphaned' Transplantable Organs: Law, Ethics, and Ownership

• Author: Remigius N Nwabueze
• Position: Associate Professor of Law, School of Law, University of Southampton
• Pages: 241-273

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‘Orphaned’ Transplantable Organs:

Law, Ethics, and Ownership

Remigius N Nwabueze*

 e legal status of an organ, in the period between its extraction from the body of a

donor and its implantation in the body of a recipient, is unclear. In that period, the

excised organ might be said to be orphaned because of its ambiguous custodial and

proprietary status, and a host of activities might take place which could jeopardise its

safety or viability for transplantation. For instance, what happens if the organ was

lost or damaged in transit? Not inconceivably, a thief might snatch the organ from

the possession of the transplant team; a transplant surgeon could use the organ for the

treatment of their relative or close friend, a celebrity, or an in uential political  gure,

instead of transplanting the organ into the properly selected and designated recipient

contrary to the established allocation criteria.  e excised organ might be damaged

maliciously by a third party, say, an enemy of the proposed recipient who was bent on

frustrating the recipient’s only means of receiving a life-saving treatment. Further,

a live donor might change their mind on donation to the potential recipient after the

organ has already been extracted.

While these scenarios raise an interesting mix of legal, ethical, political and social

questions, a fundamental enquiry that permeates the whole gamut of issues engendered

by the hypothetical above is the question of ownership and proprietary entitlement

to an excised (orphaned) organ. Accordingly, this article interrogates the question of

proprietary control or ownership of an orphaned organ.

* Dr Remigius N Nwabueze, Associate Professor of Law, School of Law,

University of Southampton, UK. Visiting Professor of Law, Faculty of

Law,  ompson Rivers University, Kamloops, BC, Canada. Many thanks

to my former students at TRU, Curtis Simmonds and Kendall Cholak,

JD Candidates at the Faculty of Law,  ompson Rivers University, for

their excellent research assistance.

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Nwabueze, Orphaned Transplantable Organs

I. I

II. D’ P E

A. Cadaveric Donor’s Entitlement

B. Justi cation of Cadaveric Donor’s Proprietary Entitlement

C. Live Donor’s Entitlement

D. E ect of A Live Donor’s Gift

III. S O  E  D O

IV. E   R

V. C

I. Introduction

The legal status of an organ,

1 in the period between its extraction from

the body of a donor and its implantation in the body of a recipient,

is unclear.

2 In that period, the excised organ might be said to be orphaned

because of its ambiguous custodial and proprietary status. Recently,

Kowal deployed a similar conceptualisation to capture the ethical

ambiguity shrouding the problematic use of indigenous Australian DNA

samples collected many decades ago for medical and scienti c research,

which are now stored away in institutional freezers around Australia.3 She

1. An organ is de ned as a “di erentiated and vital part of the human body,

formed by di erent issues, that maintains its structure, vascularisation

and capacity to develop physiological functions with an important level

of autonomy.” Human Tissue Authority, Code of Practice 2: Donation

of Solid Organs for Transplantation (UK: Department of Health, 2013)

at Glossary, online: Human Tissue Authority .uk/

legislationpoliciesandcodesofpractice/codesofpractice.cfm> [HTA, Code of

Practice 2].

2. Similarly, the Nu eld Council on Bioethics observed that there is

“uncertainty around the legal status of materials that are donated for

transplantation: for example, the status of an organ that is being treated

prior to transplantation.” Nu eld Council on Bioethics, Human Bodies:

Donation for Medicine and Research (London: Nu eld Council on

Bioethics, 2011) at para 7.21, online: Nu eld Council on Bioethics

eldbioethics.org/project/donation>.

3. Emma Kowal, “Orphan DNA: Indigenous Samples, Ethical Biovalue and

Postcolonial Science” (2013) 43:4 Social Studies of Science 577.

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considers such DNA samples to be orphaned because of their separation

from the underlying a ective networks, in that both the sources and the

scienti c collectors or guardians of the samples are no longer traceable.4

However, analytical commentaries on the question of orphaned organs

are generally few and far between. Yet, in the context of donation and

transplantation of organs, the resolution of a signi cant range of legal

liability issues depends on the appropriate legal characterisation of an

orphaned organ.

In that penumbral period within which an organ is orphaned, a host

of activities might take place which could jeopardise the safety or viability

of the organ for transplantation. Pertinently, the Nu eld Council on

Bioethics has drawn attention to the increasingly complex transactions

and multiple intermediaries involved in the process of organ donation

and transplantation,5 which not only highlights the central role played in

the process by organisations and organisational structures, but also points

to “the added complexities in the form of … liabilities and obligations that

may arise where donated material is transformed, banked or otherwise

handled as a commodity by successive intermediaries.”6 For instance, the

prevailing organ allocation criteria and donor-recipient matching result

in a particular case might warrant the transportation of an excised organ

across local, regional, state or national boundaries. But what happens

if the organ was lost or damaged in transit? Not inconceivably, a thief

might snatch the organ from the possession of the transplant team; a

transplant surgeon could use the organ for the treatment of their relative

4. Ibid at 589.

5. Similar complexities and transactional variability are also evident in the

biobanking arena and use of excised body parts for research. See Bronwyn

Parry, “Entangled Exchange: Reconceptualising the Characterisation and

Practice of Bodily Commodi cation” (2008) 39:3 Geoforum 1133. See

also Nils Hoppe, Bioequity – Property and the Human Body (Farnham:

Ashgate Publishing, 2009) at 25-26.

6. Nu eld Council on Bioethics, supra note 2 at para 1.31.