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Medico -Legal Considerations in Organ Transplants JOURNAL Vol. I I, No. I. 20 SINGAPORE MEDICAL March, 1970. MEDICO -LEGAL CONSIDERATIONS IN ORGAN TRANSPLANTS By Lee Yong Kiat, A.M., M.D., IT.R.C.P.E., M.R.C.P., LL.B. (Medical Unit [[I, General Hospital. Singapore) and Advances in medicine brings in its train In using cadavers, the proper legal providing many ethical and legal problems. The exciting removal of an organ in circumstances poses and impressive developments in human organ maximal viability for its transplantation transplantation have created several new prob- many difficult legal and ethical problems. lems. In transplantation with organs from living LIVING DONORS donors, the question of consent has to be re- considered. In transplantation with cadaver In living donors there is the problem of material, the organ has to be removed within consent. Why is consent necessary? The tort of minutes of death. This has stimulated a careful trespass to the person protects the individual re -appraisal what constitutes death, and has from any direct interference with his person. emphasised the profound difference between A doctor acting without the consent of his death of a person and biological concepts of the patient (or the person with a legal right to loss of property of living matter, and has brought consent on his behalf) may be made civilly the question of the law in regard to dead bodies liable in tort. If the patient has undergone pain well into the public eye. and suffering and has been deprived of an organ an operation he will In the human body, failure or loss of a part as the result of unauthorised substantial damages. The can sometimes be replaced by a transplant. be able to recover surgeon may also be guilty of the crimes of be divided into three Transplants can assault and battery and be subject to punish- groups (Ciba. 1966):- ment by fine or imprisonment. 1. Autotransplants, i.e. tissues or organs trans- What is consent? "Consent means an active planted from one part of the body to another will in the mind of a person to permit the doing part in the same patient. Autotransplants of of the act complained of, and knowledge of skin, cartilage, tendon and bone are widely what is to be done, or of the nature of the act used in plastic and orthopaedic surgery. that is being done, is essential to a consent to The medico -legal aspects would be the the act." Lock (1872) L.R. 2 C.C.R. 10, 11. same as those in any operation, mainly the When a patient permits a surgeon to invade his problems of negligence and consent. rights (e.g. to operate on his body) and volun- tarily assumes the risk of injury, he has no i.e. transplants from an 2. Heterotransplants, action against the surgeon if what he has agreed to man. The medico -legal aspects animal to come to pass. But the Courts will not deprive would not be different from those in any a man of his rights unless they are satisfied that operations. other he has given them away. They want to be sure 3. Homotransplants, i.e. transplants from one that the consent has been given freely. For a human to another. consent to be legally valid certain conditions The possible sources of homotransplants have to be fulfilled:- are, namely:- (a) The patient must have the legal capacity to give a valid consent taking into (a) Organs and tissues removed during the consideration his age, mental capacity course of an ordinary operation and status. ("free transplants"). marital (b) The patient knows what he is consenting (b) From living donors. to, i.e. he has knowledge of the nature of (c) From cadavers. the procedure and the extent of the risk The use of "free transplants" does not raise of harm. any ethical or legal problem. (c) The consent is granted freely without A living donor can only donate one of his coercion, fraud or misrepresentation. paired organs, and the problems concern the (d) The consent given covers the acts of the legality of the surgeon's action in removing the surgeon, i.e. the consent has not been organ. exceeded. MARCH, 1970 21 Parents can give consent for operation on defence to criminal liability, or whether it is an behalf of their children who are minors. This unlawful act of voluntarily causing "hurt" or authority is a corollary of the responsibility "grievous hurt". A surgeon cannot escape the placed upon by them the law to look after the penalty for performing an unlawful act by welfare of their children and exists only for the arguing that the patient had consented to, or protection and well-being of the children. The even requested the operation. If the patient parent has to weigh the risks and hazards of a were to die, the surgeon would be answerable proposed procedure against the consequences of for culpable homicide. foregoing the operation, and decide what course of action will be taken, i.e. decide what risks the TRANSPLANTS OF child will undertake. ORGANS FROM CADAVERS A difficult problem arises where the child is not old enough to give consent and the operation The essential legal problem in the use of is not directly for the child's benefit. Can parents organs from cadavers, as with their transplanta- give consent for their child to donate a kidney tion from living donors, concerns proper to its identical twin? Would this be for the authorisation and consent. Cadavers are the child's benefit? In the mid -fifties in Massachu- main source of organs for transplantation; but setts, there were three boys aged 19, 14 and 14 in using cadavers, the removal of organs has to who were prepared each to give a kidney to a be carried out as soon as possible after death to dying twin brother. The Courts were asked to prevent irreversible damage caused by cessation give a declaratory judgement on the lawfulness of oxygen supply. This necessity for speed of the operation. Psychiatrists testified that the further complicates the consent problem. All donors were fully aware of the nature of the this has focussed attention on the subject of dead operation; and that if the operation was not bodies, and on the rights, duties and obligations performed and the sick twin were to die, there which attach to their disposal. would be a grave emotional impact on the The law surviving twin. The Courts ruled of dead bodies is imperfectly deve- that the loped. operation was of benefit to the live donor. According to the common law there are no property rights in dead bodies and a person It is doubtful whether submitting a healthy cannot by will or otherwise legally dispose of his child to such risk is for the good of the child. body after death. Any direction on the matter Parents may be free to become martyrs them- that he may have given are selves, but can subsequently not they make martyrs of their binding children? upon his personal representatives. Certain persons, e.g. spouses, parents, children What of the criminal law and consent? The and next of kin, however, have the right of security of a man's person is protected by the possession for purposes of burial. The law criminal law. use Intentional of force against the recognises as incidental to the duty to dispose of person of another is a crime. But under certain the body the rights to the possession of the body circumstances the law allows a man to consent until it is disposed of. Public interest may super - to the use of a reasonable degree of force on his cede the private control of corpses, e.g. for the person, and this consent is a good defence to protection of public health or the discovery criminal liability, e.g. in a surgical operation. of crime (Halsbury, 1959). If, however, the act is in itself unlawful, i.e. it is an offence under the criminal law, consent is not In the absence of specific legislation autho- a defence. "No person can license another to rising testamentary disposition of the donor's commit a crime" (R. v. Donovan (1934) 2 K.B. body, the legal effect of an ante-mortem consent 498), (See Section 91 of the Penal Code). is open to question. There may also be civil and criminal liability Sections 87-92 of the Singapore Penal Code for mutiliating a corpse. deal with consent in criminal law, and Sections In the United Kingdom, the Human Tissues 319-326 with the offences of causing "Hurt" Act, 1961, made some modification and clarifica- and "Grievous Hurt". tion of the common law respecting dead From a study of the above -mentioned bodies. In Singapore, the Medical (Therapy, sections of the Penal Code, it will be apparent Education and Research) Act 1965 is based that the problem is whether removal of an on the English statute. organ from a healthy person is for his "benefit" The Singapore Act will be discussed in some thus making his consent for operation a good detail. SINGAPORE MEDICAL JOURNAL 22 The Medical Act 1965 makes provisions for body in accordance with an the use of parts of bodies of dead persons for authorisation under the provisions of therapeutic, educational and research purposes. Section 2, 3 or 4, as the case may be, There are certain practical difficulties in inter- shall be lawful. preting the provisions of the Act (as with the (2) Such authorisation shall not be ques- Human Tissues Act). These are discussed below tioned or challenged in any court.
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