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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(2015) 1 CJCCL
‘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
3. Emma Kowal, “Orphan DNA: Indigenous Samples, Ethical Biovalue and
Postcolonial Science” (2013) 43:4 Social Studies of Science 577.
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(2015) 1 CJCCL
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.
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