‘Presumed consent’ organ donation looms in Ontario
On Feb. 16, Ontario New Democrat MPP and House Leader Peter Kormos introduced a private member’s bill that proposed to make organ donation automatic for everyone, unless the individual has previously “opted out” of the system. Kormos said the plan “will help ease the organ-donation crisis,” in which there are not enough organs donated to meet the demand for transplants.
The bill has been criticized from various sides including pro-life groups, opposition MPs and the the head of Ontario’s transplant agency. However, it has garnered the support of Ontario Health Minister George Smitherman, who said he supports the bill because it is likely to spur debate on the “need” for organ donation.
More than 20 countries, most of them in Europe, have similar programs. The NDP bill will require that people who do not want to have their body parts removed after a brain-death assessment will all have to make a deliberate opt-out of what is otherwise presumed consent. Under existing law, people who want to become organ donors must state in advance that they wish to donate their organs. The NDP is assuring that the bill “protects individual choice,” because individuals may still be allowed to decide that they do not want their organs harvested. Mary Ellen Douglass, Ontario president of Campaign Life Coalition, told The Interim that presumed consent is akin to negative billing, the practice of cable companies in the 1990s to bill customers for services unless they were explicitly told they were not desired. Ironically, Kormos was among the politicians who pressed the cable companies to reverse course.
Opposition is also coming from unlikely quarters. Frank Merkel, chief executive of the Trillium Gift of Life Network, the provincial agency that oversees organ donation, said he welcomes the public discussion the bill will bring, but added that the proposal “is not the best way to increase organ donations.” He opposes presumed consent, but does support a mechanism where “donation co-ordinators” in hospitals could approach family members of dead and dying patients.
For pro-lifers, the issue is more than mere consent. Because most human body parts, in order to be useful for transplantation, must be taken from a still-warm, artificially-kept-alive, though presumably “brain-dead,” body, Douglas says that the donating of such organs is inherently evil, for it requires the hastening of death of a dying patient.
As Dr. John Shea, a medical adviser to CLC, explained to The Interim, a team of Harvard doctors in the 1960s came up with the notion of “brain death” – there is no medical consensus on what the term means – to lessen opposition to killing dying, but not yet dead, patients.
Asked by The Interim what definition of “brain death” his bill would require, Kormos simply stated: “The North American standard.” According to Shea, there is no “North American standard.”
The only reliable and morally defensible definition there is of death, Shea explained, is the stopping of a beating heart. Unfortunately, for those who want to harvest organs for transplant, there are few organs (bone marrow and the cornea) that do not to begin to deteriorate immediately following the death of the patient.
So dying, but usually unconscious, patients are declared “brain dead” in order to remove their organs. Patients are still breathing when the doctors go in for the organs, but patients die once the vital organs are removed. In other words, the removal of the organs is what kills the donor.
The whole process puts doctors in a conflict of interest between serving the donor patient and the organ recipient. In September 2005, Walter Glannon, a clinical ethicist at the Children’s and Women’s Health Centre in Vancouver, told the National Post, that he is worried “the removal of organs for transplant will take precedence over the (donor) patient.” He said that life support “may be removed prematurely, without going through the medical and ethical protocol,” in order to harvest organs. Dr. Michael DeVita, a critical care physician at UPMC Presbyterian Hospital in Pittsburgh, Pa., said, “People get more and more concerned that you’re going to be caring for people who are dying inappropriately just to get at their organs.”
There is also political opposition to the bill. Chief government whip Dave Levac said he won’t vote for the legislation as it stands, but promised a free vote on the issue. So did Conservative Leader John Tory, who said that, while he favours a public campaign to encourage organ donation, he opposes the bill.
A competing proposal from Conservative MP Frank Klees would require “mandatory direction.” Under Klees’s plan, Ontarians over 16 are to declare whether they are in favour of donating their organs, against the idea or undecided. The declaration would be made when they get or renew a driver’s licence or health card. Klees told the Toronto Star the proposal “respects the right of every individual to make this very personal choice, but also ensures that everyone gives serious consideration as to whether they want to be an organ donor.”
The Klees proposal has the merit of requiring doctors to know the wishes of the dying patient. A nurse at a Toronto hospital told The Interim that one problem with the Kormos approach of presumed consent is that medical staff “eager to perform heroic and often headline-grabbing transplants won’t be in much of hurry to locate a document that contradicts the assumption of presumed consent.” In other words, if doctors want granny’s vital organs, they might not check her wallet to see what she would have wanted. As Douglas noted, the whole bill is fundamentally flawed and endangers lives.