遗体捐献立法中的几个问题

近年来，捐献遗体工作的意义和难度引起了人们的关注。一些地方在开展立法调研，以期规范和推动该项工作的顺利健康发展。本人曾经参加过上海市红十字会和市卫生局联合开展的《上海市遗体捐献条例（草案）》（以下简称《草案》）的研究、讨论和修改等工作。现就其中的一些主要问题谈谈本人的看法，以抛砖引玉，对我国的遗体捐献立法工作有所裨益。     

遗体捐献立法中的几个问题

近年来 ,捐献遗体工作的意义和难度引起了人们的关注。一些地方在开展立法调研 ,以期规范和推动该项工作的顺利健康发展。本人曾经参加过上海市红十字会和市卫生局联合开展的《上海市遗体捐献条例 (草案 )》(以下简称《草案》) ①的研究、讨论和修改等工作。现就其中的一些主要问题谈谈本人的看法 ,以抛砖引玉 ,对我国的遗体捐献立法工作有所裨益。一、立法的必要性和可能性1.必要性。通过立法将遗体捐献的立法过程建立在开放民主科学的基础上 ,促使人们思想观念的变化和社会主义精神文明的发展。捐献遗体看似小事 ,似乎容易 ,实际上关系到…     

Forced organ donation: the presumed consent to organ donation laws of the various states and the United States Constitution

The issues presented in this Comment pertain to whether there are substantive limits imposed by the Fourteenth Amendment upon the state legislatures which would defeat the recent, tentative steps of many states to pass laws authorizing presumed consent to organ donation. The final and perhaps least effective presumed consent law creates a presumption of consent to organ donation. The potential organ donor makes the choice whether to donate or not during his lifetime. This form of the presumed consent law would probably have the least impact on increasing the number of available donor organs. It permitted the coroner to harvest the eyes and corneas of deceased individuals if the coroner was unaware of objections from either the decedent or the family of the decedent. Presumed consent statutes should be found unconstitutional because they infringe upon a family's property interest in a deceased relative's corpse. However, due to the family's property interest in a relative's deceased body, as set forth in the next section, the result is that presumed consent statutes are unconstitutional. In order to find the presumed consent law unconstitutional, the Court would have to find that either: (a) the Fourteenth Amendment's liberty component included the family's right to determine what happens to a relative's body after death, or (b) that the property component included a vested state law property interest in the dead body.     

Tissue donation: ethical guidance and legal enforceability

The legal and ethical framework regulating the use of tissue donated for medical research in Australia provides clear direction on the appropriate use of donated tissue in many instances. However, this article argues that the current framework may be inadequate to address some of the problems that may arise from misuse of such tissue. It argues that the Human Tissue Acts do not provide a sufficiently broad system of regulation and require updating. It also notes that as much of Australian research practice is regulated through ethics guidelines, which do not have the status of law, in some cases this approach may fail to provide remedies for those whose tissue is used inappropriately.     

The importance of being dead: non-heart-beating organ donation

There is no definitive answer to the question of how long one must wait, after a person's heart stops beating, before concluding that the person meets the heart-lung criteria for death. This question has assumed new importance with attempts to remove transplantable organs from people declared dead using those criteria. An examination of the legal definition of death suggests that organs are indeed being procured from some of these people prior to their being legally dead. Moreover, the fact that the donors have consented to these procedures does not eliminate reason for concern regarding this state of affairs, since patient autonomy must at times be overridden in pursuance of important social goals.     

Review of pathologic findings in remnant hearts following valve donation

The failure of medical examiners/coroners (ME/C) to allow heart valve donation is a major problem encountered by tissue agencies. Even though many ME/C favor tissue donation they remain responsible for determination of cause and manner of death. In 2001, the Jesse E. Edwards Registry of Cardiovascular Disease was approached by one of the nation's largest tissue procurement agencies (The American Red Cross--ARC) for the purpose of performing cardiovascular pathologic examinations following valve donation. The affiliation existed from October 2001 to January 2005. This study was undertaken to review all 593 postvalve recovery heart remnants received during that time period to tabulate the abnormalities identified and to determine whether donation interfered with the determination of cause of death. For each case, a preliminary cause of death was provided by the ARC. The decedent's body height and weight were also provided. Using the preliminary cause of death, the 593 cases were divided into natural and nonnatural manner of death groups. This division of the cases resulted in 106 cases placed in the natural manner of death group and 487 cases in the nonnatural manner of death group. For each case, all cardiac findings including significant conditions, additional findings, incidental findings, and congenital abnormalities were tabulated. Within the natural manner of death group, 15 cases had a noncardiac cause of death and 91 cases had a cause of death suspected to be cardiac related. In the 91 cases, a total of 132 significant cardiac findings were identified and there were six structurally normal hearts including two infants. In the nonnatural manner of death group, 214 significant cardiac findings were identified and 222 cases had a structurally normal heart. In both natural and nonnatural groups, the most common cardiac abnormality was atherosclerotic coronary artery disease. Other frequently encountered conditions were also identified including 11 cases with acute angle of origin of a coronary artery (five cases natural group; six cases nonnatural group). An important feature of this review was the recognition of potentially inheritable conditions that were diagnosed in both natural and nonnatural manner of death groups. There were three cases of hypertrophic cardiomyopathy (one natural; two nonnatural), three cases of arrhythmogenic right ventricular cardiomyopathy (one natural; two nonnatural), and one case of mitral valve prolapse (natural). In reviewing these cases, we did not feel that valve donation severely impaired cardiac pathologic examination. The benefits of cardiovascular pathologic examination by a cardiac pathologist include the identification of significant and incidental findings and recognition of potentially inheritable conditions.     

Racially conditional donation: the example of umbilical cord blood

While direction of donated tissue to family members has long been accepted, direction to members of specific racial groups has been opposed, on the basis that it is discriminatory and contrary to the ethos the institution of organ donation seeks to promote. It has, however, recently been proposed that racially conditional donation may provide a useful--and ethically acceptable--way to address the social inequalities and injustices experienced by certain cultural groups. This article examines the ethical, legal and cultural arguments for and against racially conditional donation, concluding that the practice is more likely to undermine the values of equity and justice than to promote them and that it may also lead to other unfavourable personal and social outcomes.     

Ethical considerations underpinning the donation of live,non-regenerative organs

The recent donation of a kidney to one of Australia's most prominent citizens by a long-time friend and employee has brought to attention the problems of access facing patients who require renal transplantation as a life-saving measure. The lack of availability of cadaver organs, the improved techniques available to minimise tissue rejection and the potential to genetically engineer tissue-compatible individuals for future organ donation have generated an interest in the ethical and legal considerations that underlie live organ donation.     

Assisting altruism: evaluating legally binding consent in organ donation policy

The growing need for organ and tissue transplants has led a number of states to enforce a policy that views a donor's declared intent to be an organ donor as legally binding. This allows health officials to harvest organs without the permission of the next of kin. Legally binding consent is controversial because of concerns that it may anger family members, lead to negative publicity, and discourage potential donors. We use interviews and a pooled time-series data set of cadaveric donation rates in U.S. states to evaluate the effectiveness of this policy. Our research indicates that enforcement of legally binding consent has marginally increased cadaveric donations while not significantly affecting donor registration. We also find evidence that the effect of the policy might be greater if it were more fully implemented and coordinated with efforts to improve public acceptance and awareness.     

Public education and organ donation: untested assumptions and unexpected consequences

While the number of individuals able to benefit from transplantation increases with technological developments, donation rates remain insufficient to cater for demand. A universal response to the insufficient number of donor organs has been public education to increase knowledge about donation and transplantation, and to encourage individuals to register their wishes about donation. Although education appears to have increased knowledge and encouraged individuals to register their wishes, it has not increased the number of organs available for transplantation. In fact, there is some evidence that encouraging people to register their wishes may be detrimental to increasing net donation rates. The failure of education programs to increase organ donation rates may be due in part to a failure to recognise that attitudes to donation are influenced by complex socio-cultural and personal beliefs, and not simply by knowledge. Research aiming to increase the rate at which organs are procured for donation must recognise that some individuals do not support transplantation and have their own personal reasons for maintaining this position. Educational interventions should not assume that increasing knowledge or simply encouraging individuals to declare a decision about donation will increase consent to donation.     

To solve a deadly shortage: economic incentives for human organ donation

In this article Dr. Harris and attorney Alcorn propose the establishment of a governmentally regulated, posthumous organ market, with economic incentives for the donors, in order to increase the supply of transplantable organs. The authors review transplant technology, provide a short history of donation and sale of organs, tissues, and cells, discuss the various legislative approaches that have been made to increase the supply of organs, and analyze the problems with the open market approach. They conclude with a proposal for a regulated posthumous organ market.