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The Nasty Side of Organ Transplanting.

Chapter 15

Australian Transplant Legislation

The South Australian Transplantation and Anatomy Act of 1983 is fairly typical of most Australian State transplant legislation. It allows a government bureaucrat, under certain circumstances, to order removal of the organs, bones and tendons of donor card signers regardless of next of kin wishes.

This includes even those who haven't signed donor cards or registered an objection to donation: the bureaucrat can still order harvesting if the relatives aren't objecting or can't be contacted within a “reasonable period”.

Bones, skin and body parts can be used for scientific and medical purposes, non-coronial post-mortems, (which in some states has been a time to secretly remove organs), and for the study and teaching of anatomy if the person hadn’t registered an objection nor do next of kin object.

Harvesters may legally seek and obtain next of kin consent not only when the injured patient is “brain stem dead” or “brain dead", but merely unconscious and uncommunicable, prior to an expected “brain death”. Obtaining an early consent signals to transplant and other hospital staff that it is safe to declare “brain death", as there won’t be objections from relatives. The sooner “brain death” is diagnosed the sooner the brain damaging organ stabilisation process can begin, if it hasn’t already begun. These include blood thinners, increased fluid drip and blood vessel dilators, all of which may increase brain damage while the patient is theoretically still receiving therapeutic treatment.

“Next of kin” means the patient’s closest relative. Wife, husband or partner are closest. Next closest are adult children who are classed as closer kin than parents. A cynic could say children are classed closer than parents as older people are more reluctant to consent to the harvesting of their children than vice versa.

Tightening the Screws

Australian State and Territory Health Ministers changed the donor rules in 2005. Next of kin objections to organ donation would be ignored unless there were “sincere objections”. This cavalier approach has always been legally available to hospitals through the legislation but hasn't been enacted for political reasons.

I asked the South Australian Organ Donor Agency to clarify what constitutes “sincere objection” but they wouldn't reply despite my putting the request through John Hill, the Minister for Health. The peak transplant body, Australians Donate did reply but declined to define what constitutes “sincere objection” against harvesting one’s next of kin. Nor would they say who precisely decides whether next of kin objections are sincere and what are their qualifications to make this decision.

Stephen Bendle of Australians Donate did say the decision was made by intensive care staff, but wouldn't give examples of “sincerely held objections” and added that he didn't think there was any appeals process. He also stated that, “In every case in Australia, the staff involved in the end of life treatment of a patient are never involved in the issues of organ or tissue transplantation.”^[97]

This new rule of ignoring the wishes of next of kin applies only to those registering with the Australian Organ Donor Register from 2006. New donors are registering their consent for harvesting while previously prospective organ donors were merely signing intent. ^[98] Donation agency spin doctors claim that ignoring next of kin wishes increases the opportunity for people to donate organs. Potential donors signing the new forms are locking themselves into tighter contracts that give more power to the harvesters and less to their relatives. The new contract also means harvesting can proceed without even informing relatives until after the event.

Yet residual power still resides with determined next of kin. The worst nightmare of transplant promoters is angry, informed relatives going to the media with a ghoulish story.

Who Is Chosen To Obtain The “Brain Death” Determination?

Either the legislation or hospital protocols (their internal rules) will require “brain death” diagnosis to be made twice by two doctors not involved in harvesting or transplanting that person’s body parts. This safeguard protects patients against a harvester wrongly diagnosing “brain death” simply to grab a patient’s organs.

Dr Juro Wada was accused of this in Japan and charged with double murder: once for harvesting the patient’s heart before letting a second doctor declare “brain death” and, secondly, for killing the recipient who got a heart he didn’t need then died.

Some doctors have an established reluctance to declare “brain death", but transplant teams get around this little problem.

Getting Around “The Problem”

Dr David Hill, the English anaesthetist mentioned elsewhere in this monograph, says the United Kingdom pattern is that doctors reluctant to make quick “brain death” diagnoses won’t be asked to conduct the tests,

“…doctors who are sympathetic to this form of death are required and consequently others, such as myself, who would not certify death on the basis of such tests, are not asked. It is doubtful whether this situation would pass any serious scrutiny for being truly independent of the transplant team.”^[99]

Another Implication for Intending Donors

Registering as a donor has implications determining how your body is used for other purposes. As stated above most legislation gives a medical bureaucrat the right to order harvesting if there isn’t a record of your objection and next of kin can’t be contacted. This applies also to medical testing and anatomy classes. Few people ever make a point of saying they won’t allow their body to be used for these purposes because few of us give it any thought. A wary bureaucrat may be reluctant to order a non-donor’s cardiac dead body for such purposes but being a registered organ donor makes it easier to assume the person wouldn’t have objected. They may also say to your relatives that because you'd agreed to organ donation then you wouldn’t have objected to the hospital or medical school using your completely dead body for teaching purposes. They may also throw in their standard script, “Let us make the best of this tragic occurrence. Your son/daughter would have wanted it this way.”

What they won’t say is that it may involve cosmetic surgery practice or that parts of your body may be covertly stored in jars for decades. The research institution may take over the burial of your remains not from kindness but so they keep control of the body and stop you seeing the mess they made. Though to be realistic, the human body quickly becomes a decomposing mess regardless.