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New Zealand Law Students Journal |
Last Updated: 30 August 2012
NEW ZEALAND’S ORGAN
TRANSPLANT LAWS: ANY
HINTS
FOR IMPROVEMENT FROM SINGAPORE’S?
JOANNE LEE*
Introduction
For people with end-stage organ failure, transplantation offers the only
effective treatment.[1] Not only does
it improve medical outcomes for the individual, it also reduces the healthcare
burden on society as a whole.[2]
However, almost invariably, need for organs will far exceed availability, and
most measures to increase supply in any healthcare
system are fraught with
controversy.
This paper explores the laws governing organ donation in
New Zealand and Singapore and considers the strategies implemented by the
two
governments to increase organ donation rates. Singapore has changed to an
opt-out system which has increased the rate of
donation[3] whereas New Zealand has
retained an opt-in system but with enhanced recognition of the donor’s
wishes. Because of certain features
that cause difficulty in implementation of
organ donation at the individual level, it is likely that New Zealand will
remain unable
to significantly increase organ availability. This paper explores
the two systems, and asks if adopting certain aspects of the Singaporean
system
might possibly increase organ donation rates in New Zealand.
I.
1. New Zealand
New Zealand is a country located in the south-western Pacific Ocean with two
main islands (North and South) that cover approximately
255 200km2.
With a population of 4.37 million
people,[4] New Zealand’s
distinct culture has been described as a complex mixture of “human and
physical geography...developed historically
through the iterative interplay of
beliefs and behaviour in reaction to
events.”[5] A series of key
moments in New Zealand’s history has shaped the constitutional culture of
the country.
As a representative democracy, the move from a
First-Past-the-Post to a Mixed-Member Proportional (MMP) Voting System in 1993
has
created a Parliament where no single party holds the majority of seats in
the House. The MMP system gives smaller parties greater
say,[6] which has made the legislative
process more complex; creating new law now requires extensive inter-party
negotiation in order to
secure enough votes to pass a
Bill.[7] In effect, getting adequate
support on controversial topics is made more difficult by the need to seek
consensus across cultures.
The culture of New Zealand is shaped by the
different ethnicities that inhabit the country. As the indigenous people of New
Zealand,
the Māori play a significant role in influencing the culture and
norms of New Zealand. In addition, a steady stream of immigrants
has changed the
population’s ethnic mix.
Figure 1.Ethnic Mix of Population
from New Zealand Census
2006.[8]
Like
other developed countries, New Zealand struggles with a high prevalence of
diseases such as diabetes and hypertension. Type 2
diabetes incidence is
attributed to the prevalence of obesity which most severely affects the
Māori and Pacific ethnic
groups.[9] Diabetes incidence is
expected to double between
2006-2011,[10] and the number of
deaths attributed to diabetes in 2011 is forecasted to exceed
2100.[11] As many diabetes and
hypertension sufferers eventually experience kidney failure, the demand for
these organs for the purposes of
transplant will increase.
Unfortunately, as in many other countries, the supply of organs for
transplant in New Zealand outstrips the population’s requirement.
The
Ministry of Health reported that “even if organs were retrieved from every
potential deceased donor, the supply of organs
(especially kidneys) would still
fall well short of the demand for
them.”[12] In 2007, New
Zealand’s organ donation rate stood at 9 donors per million people, well
below Britain (13.2), the United States
(24.6), France (24.7) and Spain
(34.3).[13]
Figure 2. Live and cadaveric
organ supply and demand in years
2004-2009.[14]
In
New Zealand, organs usually transplanted include the heart, lungs, liver,
kidney, and pancreas.[15] Of these
organs, the kidney and liver are the only ones that can be obtained from both
living donors and cadavers. In addition, tissue
donors within the Auckland
region are able to donate their heart valves and skin; and anyone in New Zealand
may donate corneas and
sclera (of their
eyes).[16] All living organ
donations are regulated according to the provisions of the Code of Health and
Disability Services Consumers’
Rights 1996. Cadaveric organ donations fall
under the Human Tissue Act 2008, which replaced the Human Tissue Act 1964.
A. Living donor transplants
1. Informed
consent
The removal of organs from living donors is a health care procedure in New
Zealand and thus governed by the provisions of the Code
of Health and Disability
Services Consumers’ Rights 1996 (the “Code”). Right 7(10) of
the Code specifically forbids
“any body part[s] or bodily substance[s]
removed or obtained in the course of a health care procedure” from being
“stored,
preserved or used” without the informed consent of the
consumer.[17] “Informed
consent”, according to the Health and Disability Commissioner Act 1994 is
consent that “is freely given”
and in accordance with the
requirements under the Code.[18] The
expectations of informed consent under the Code comprise three elements: the
right to effective communication (Right 5); the
right to be fully informed
(Right 6); and the right to make an Informed Choice and give Informed Consent
(Right 7).[19] In addition, Right
7(7) states that every consumer has the right to refuse services and to withdraw
consent to services. This is
consistent with s 11 of the New Zealand Bill of
Rights that states that “everyone has the right to refuse to undergo any
medical
treatment.”[20]
Thus, under the Code, every patient has the right to be informed of all
the risks and benefits of a living organ donation before giving
consent. The
Code demands a high standard of communication to ensure that all risks and
benefits of the procedure are fully understood
by the donor.
2. Payment for organs
Given the demand for organs, and the difference they make to the recipient,
it would be easy to imagine a market for them. However,
trading in human tissue
is an offence under the Human Tissue Act
2008[21] except where an exemption
has been given by the Minister.[22]
No person is permitted to “require or accept, or offer or provide,
financial or other consideration for human
tissue.”[23] Similarly,
advertisements relating to the sale or purchase of human tissue are
forbidden.[24] This rule upholds
the generally favoured view that the “gift” status of human tissue
and blood be recognised[25] and that
organ and tissue donation by deceased donors is an unconditional and anonymous
act.[26]
The prohibition on
trade does not preclude the payment of compensation to living donors. The
government, through Work and Income New
Zealand, offers financial assistance to
living donors to assist with loss of income or extra childcare costs
incurred.[27] The age and marital
status of the donor determine the size of “loss of income”
assistance and the maximum amount ranges
from approximately $130 to 320 per week
for up to 12 weeks as well as childcare
costs.[28]
However, in actual
practice, living donations are a very limited source of organs because living
donors have substantial risk to life
and health. Thus, significant increase in
donations is more likely to come from deceased persons.
B. Cadaveric organ transplants
1. Human
Tissue Act 1964: a historical perspective
The 1964 Act dealt solely with the post-mortem use of bodies and body parts
and gave statutory status to the “no property”
common law rule that
dated back to the 18th
century.[29] While no person can own
a corpse, certain persons have limited property rights in the body, such as
executors for purposes of burial
and coroners for the purposes of
autopsies.[30] The Human Tissue Act
1964 introduced the concept of a “person lawfully in possession” of
a body and authorised that person
to determine whether bodies could be used for
anatomical examination or organ
transplantation.[31] This paper will
address only the parts of the Act relating to organ donation.
(a) Who could give consent?
The 1964 Act gave the “person lawfully in possession” of a body
(PLPB)[32] the power to make
decisions about the use of a corpse. Section 2(2) defined the PLPB to include
the person in charge of a hospital
if a person died within the
facility,[33] the person in charge
of a mental health facility if the deceased’s body was on its
premises,[34] and the prison manager
of a deceased’s prisoner.[35]
Generally speaking, because organ donation is only possible from individuals
that have passed away in hospital, the PLPB of potential
organ donors – by
virtue of s 2(2)(a) – was the person “for the time being in
charge” of the
hospital.[36]
Under s 3(1), a
PLPB could authorise the removal of body parts for therapeutic purposes if the
deceased had expressed such a request
“either in writing at any time or
orally in the presence of 2 or more witnesses during his last
illness”[37] and that request
had not subsequently been
withdrawn.[38] The PLPB was not
obligated to consult or gain the approval of family members. In practice,
however, medical practitioners would consult
family members and not proceed
against their wishes.[39]
If
the deceased had not consented, under s 3(2) the PLPB could authorise the
removal of body parts if “having made such reasonable
inquiry as may be
practicable”, the PLPB had no reason to believe that neither the deceased
nor the “surviving spouse,
civil union partner, de facto partner, or any
surviving relative of the deceased” objected to such use of the
deceased’s
body.[40] This
“lack of objection” threshold meant that rather than gaining
consent, all that was required was an enquiry into
whether there was objection
before the proposed tissue harvest could proceed. Problematically, “any
surviving relative”
was extremely broad and meant that any relative
– no matter how far removed – had the power of
veto.[41] In contrast to the
potentially large number of relatives to whom such an enquiry had to be
addressed, the time following death that
any organ could be harvested as donated
tissue, is extremely limited.
(b) Repealing the Human Tissue Act 1964
The limited scope of the Act proved insufficient to address issues that arose
relating to the use of human tissue, particularly that
of organ
donation.[42] In the meantime,
waiting lists of potential recipients continued to
grow[43] with donor rates plummeting
in 2006.[44]
The dire
shortage of organs led to the presentation of the 2002 petition of Andy Tookey
and 1, 169 others to Parliament.[45]
At the time, there were many concerns with the current system such as the lack
of public education or advertising regarding organ
donation; the failure of some
doctors to approach potential donor families; the ability of families to
override the wishes of a potential
donor; and problems created by tying the
driver licence system to organ donation such as the driver licence not meeting
accepted
requirements for obtaining informed
consent.[46] The Health Committee
had similar concerns and recommended that the government take proactive
steps” by creating an environment
that facilitates
donation.”[47] Specifically,
with respect to “DONOR” indications on a driver licence, the Health
Committee reported in 2003 that the
introduction of synthetic paper licences
severely limited the ability of holders to update information on organ donation
because
licences did not need to be renewed until the holder’s
71st birthday. Even after the switch to the current 10-yearly cycles
of licence renewal, it was still risky to rely on a licence as an
accurate
reflection of the holder’s current wishes.
In May 2006, Dr Jackie
Blue introduced a Member’s Bill to the
House.[48] The Human Tissue (Organ
Donation) Amendment Bill sought to establish a register on which people could
register legally binding wishes
to be organ donors or state their desire not
to.[49] Despite the pressure to
reform human tissue laws in New Zealand, the Bill did not pass its second
reading. The Select Committee did
not support the establishment of a register,
because it would be costly[50] and
there was no evidence that it would improve the rate of
donation.[51]
A national
consultation process conducted in 2004 revealed a widely held belief that tissue
and tissue donors should be treated with
respect; the importance of individual
consent and individual autonomy; the need for respect for families/whānau
and cultural
differences; and the need for legislation that was practical to
implement.[52] In November 2006, the
government introduced the long-awaited Human Tissue Bill to the
House[53] which received royal
assent in April 2008 and became the Human Tissue Act 2008.
2. Human Tissue Act 2008
The Human Tissue Act 2008 (HTA) regulates the use of human cadaveric tissue
and tissue-based therapies. The Ministry of Health’s
objective was to
streamline legislation relating to tissue which was “comprehensive”,
“easily understood”,
but still flexible enough to respond to future
as-yet-unpredicted advances in
science.[54] While the Act may be
comprehensive, it is unlikely to be easily understood or practical to implement
against the realities of clinical
practice settings. This paper will address
only the parts of the Act relating to organ donation.
The “lack of
objection” threshold in the 1964 Act was replaced by the requirement of
informed consent, which is consistent
with the Code. However, the consent
process in the HTA is very complex. When an individual has passed away, the
following scenarios
may arise: prior to death, the deceased consented or
objected to the removal of organs; alternatively, the deceased expressed neither
objection nor consent.
(a) Informed consent/objection by the deceased
The 2008 Act recognises far greater autonomy of the deceased and permits a
physician to act on the deceased’s consent even if
it does not accord with
the wishes of the family. Consent is valid only if it was “informed”
which the Act defines as
“given freely” and “in light of all
information that a reasonable person, in that person’s
circumstances”
needs.[55]
“Informed objection” is similarly
defined.[56] Unlike living organ
donations, “informed consent” and “informed objection”
for cadaveric organ donation is
completely different. There are no risks to the
deceased; rather, a potential donor requires information such as the process for
determining brain death, how a recipient is matched to donor organs and how
donation will affect funeral
arrangements.[57] Consent and
objection must either be “in writing (with or without
witnesses)”,[58] or
“orally and in the presence of 2 or more witnesses present at the same
time.”[59]
Under the
old Act, the PLPB could not authorise organ removal if the deceased had
expressed objection.[60] The new
requirement of “informed objection” under the HTA means that
objection based on the grounds of misinformation
cannot qualify as
“informed objection.” This is significant as unless people are
educated and misinformation is clarified,
an objection may be disregarded
because it was not informed. Misinformed beliefs include the inability of organ
donors to have an
open casket, the fear that the medical team will not try their
best to save lives of potential donors, and delays in funeral
arrangements.[61]
Both
informed consent and objection can be stated in a person’s
will,[62] even if the will is
invalid.[63] However, a significant
obstacle to consent or objection in a will is that organ procurement takes place
in the limited time after
brain death but before heart death. This is a serious
impracticality as the will reading of a person will usually occur long past
organ viability.[64] Contrary to
popular belief, an agreement to be a donor on one’s driver licence is
merely indicative and not legally binding
because it does not constitute
informed consent.[65] This is
because it is considered too difficult to prove if a person had full information
of what they were agreeing to and whether
agreement was given
willingly.[66] The different
standards for consent given in a will as compared to one given on a driver
licence highlights a significant discrepancy
in the law of informed consent as a
will – which may be no better informed than a driver licence indication
– is taken
as valid informed consent for organ donation while the driver
licence is not.
Section 14 imposes a duty on any person
proposing to collect tissue (in this instance, the “physician”) to
ascertain whether
relevant informed consent has been
given.[67] In addition, the
physician must consult the “responsible
person”[68] who is legally
obliged to help establish informed consent (or lack
thereof).[69] The “responsible
person” is defined in s 12 as “the person lawfully in possession of
the body” and often,
in the case of potential organ donors lying in
hospital, this “responsible person” is “the person for the
time
being in charge of a
hospital.”[70] Unlike the 1964
Act that armed a PLPB with power to authorise organ donations, the 2008 Act
merely requires the PLPB to assist the
physician in ascertaining informed
consent.
Figure 3. Process of ascertaining informed
consent.
The physician must take into account the
“cultural and spiritual needs, values, and beliefs of the immediate
family” of
the deceased.[71]
“Immediate family” includes members of the “individual’s
family, whānau, or other culturally recognised
family group” who
were either “in a close relationship with the individual” or had
“responsibility for the individual’s
welfare and best
interests” in accordance with the customs and traditions of the community
the deceased identified with.[72]
While the physician must seek information regarding the values and needs of the
immediate family, that information does not need
to be obtained from family
members. Provided the physician has obtained reliable information regarding the
needs of the immediate
family and taken them into account, the duty will be
deemed to have been satisfied. This means that family members do not have a
right under the Act to object to organ donation where the deceased gave informed
consent. In practice, while organ donation may proceed
even with the objection
of family members, it is highly unlikely to happen against the wishes of
grieving family members because
current practice emphasises the importance of
the best interests of grieving families, even if it means ignoring the Act and
the
deceased’s express wishes. This practice is validated by the official
website for organ donation in New Zealand that states
that “the family's
wishes will always be respected and organs and tissues will not be retrieved if
the family has any
objection.”[73]
Thus,
recognition of a deceased’s informed consent has been granted under the
HTA. A physician can take the organs of a deceased
even if it does not accord
with the spiritual beliefs and needs or a family. This is an exception to the
general rule and a clear
departure from the old Act. While the beliefs and needs
of a family may weaken consent, nobody – not even family or the PLPB
– can override a deceased’s informed consent once it has been
established. However, giving informed consent does require
a person to consider
the subject of death and take positive steps to give valid informed consent.
When enforced, this new system
has the potential to raise organ donation rates.
(b) No informed consent or objection from the
deceased
The process of acquiring informed consent becomes most complicated when
there is no informed consent or objection from the deceased.
This is not
uncommon for reasons including the fact that there is no established organ donor
register in New Zealand, the often mistaken
belief that having
“DONOR” on one’s driver licence is informed consent and the
practical difficulties of checking
for consent in a person’s will
immediately after death and before organs become non-viable. These issues
persist in the new
Act and are obstacles to increasing organ donation rates in
New Zealand.
(i) Nominees
The law permits a person prior to death to delegate decision-making to one
or more nominees who are then able to give consent or raise
objection to organ
donation on behalf of the
deceased.[74] Where there are
two or more nominees, informed consent or objection must be given collectively
by all nominees who are available
and willing to give them.
[75] Anyone may be a nominee and little
formality is required on the part of the person delegating decision-making to
another; nominations
need only be made with the nominee’s written consent
and this is revocable with a written notice by the nominee to the
nominator.[76] A nomination may also
be made in a person’s
will,[77] even if the will is not
valid.[78]
The Act permits
anyone to be a nominee. The nominee does not have to be the executor or a member
of the family who would ordinarily
be responsible for disposal of the body.
However, a nomination may be “made, amended, revoked, or revoked and
replaced”
by persons authorised by other laws to give consent on a
person’s behalf.[79] For
example, before a person’s death, nominations may be revoked by the
person’s welfare guardian or by someone with
power of
attorney.[80] After a child’s
death, nominations may be revoked by the parent or legal guardian of the
child.[81] Thus, the nominees of a
deceased are armed with decision-making powers and, subject to certain persons
overriding their status, may
give binding informed consent or objection on
behalf of the donor. In giving informed consent or raising objection, the only
obligation
a nominee(s) has is to take into account the cultural and spiritual
needs, values and beliefs.[82]
However, the nominee(s) is given the discretion to “decide what
weight...to give to” such wishes and is not obligated
to give effect to
them.[83]
By permitting a
person to have nominees, the Act allows people to elevate the decision-making
status of specific people who are able
to give binding consent or objection. The
potential – through nominations – to reduce the scope of persons
able to have
a say on the issue simplifies the decision-making process and may
increase organ donation rates.
(ii) “Immediate family”
If there are no nominees or if they have not consented or objected after some
time,[84] the decision falls upon a
member of the deceased’s “immediate
family.”[85] “Immediate
family” is given a very broad definition under the HTA and includes
– at its most broad – “culturally
recognised
family.”[86] Section 40
obliges the family member giving informed consent or raising informed objection
to take “all reasonably practicable
steps to consult members” of the
individual’s “immediate family” where all of the different
interests within
the family are
represented.[87] However, the Act
does not cloak any specific persons with the responsibility of representing the
family. Thus, with complex family
structures rife in New Zealand, time may be
wasted choosing the 
representative and conflict may arise.
Figure 4. Process of obtaining consent from family.
Under the old Act, the PLPB was required to make “such reasonable
inquiry as ... practicable” to ensure that the deceased,
“surviving
spouse, civil union partner, de facto partner, or any surviving relative of the
deceased” did not object.[88]
This has now been replaced with a new obligation to consult the deceased’s
“immediate family” with the “view
to achieving general
agreement on the matter.”[89]
Notably, “immediate family” is much larger in scope than “any
surviving relative.”
At this stage in the decision-making process,
there are 3 possible outcomes: first, everyone in the family consents to organ
donation
and the removal of organs proceeds; second, everyone in the family
object to organ donation and organs cannot be removed; and third,
the immediate
family is divided. In the first two instances, informed consent or objection
given on behalf of the immediate family
is deemed not to have been given if the
physician is uncertain as to its
unanimity.[90] This is because s 40
requires that the member of the immediate family believe “on reasonable
grounds that all capable members” would give the consent/objection
if personally consulted.[91] The
decision falls upon a “close available relative” where the immediate
family is divided.[92]
(iii) “Close available relative” and overriding
objection
For a child under the age of 16 who has died, a “close available
relative” is considered in this order of availability:
a parent of the
child, the guardian of the child immediately before death, or a sibling of the
child if the sibling is over 16
years.[93] If the deceased was over
16 years old, the “close available relative” is considered in this
order of availability: a
“spouse, civil union partner, or de facto partner
of the individual immediately before” death; any child of the deceased
if
he or she is over 16 years; the parent of a deceased; or the sibling of the
deceased if he or she is over 16
years.[94] A person who is dead,
unknown, missing or not capable is deemed to be “not available”
under the Act.[95] While the Act is
silent on how much effort must be undertaken to locate family members, it
appears that unless they are considered
unavailable under the Act, all attempts
must be made to find relatives before the person next in hierarchy may step in
to make the
decision. However, the expectation to exhaust every option before
the next available relative is sought seems impracticable against
clinical
realities.
The HTA gives first priority to “immediate family”
to come to a “general agreement” before close relatives
are sought.
However, because a close relative falls within the definition of
“immediate family”, a close relative who
is available and who
objects can negate the consent of the immediate family and can override the
consent of any other close relatives.
[96] Conversely, if all close available
relatives consent, the immediate family’s objection will only prevail if
there is general
agreement to the
objection.[97]
(iv) Respect for families/whānau and cultural
differences
The person giving the consent or raising an objection must also take into
account the cultural and spiritual needs, values and beliefs
of the
deceased’s immediate family and weight them
accordingly.[98] This is consistent
with the principles of the Treaty of Waitangi and the expectation that the Crown
will actively protect the treaty
rights of
Māori.[99] This obligation
“guarantees the right of Māori to determine how body parts are
treated... [ensuring they are in accordance]
with Māori values, customs and
cultural practices.”[100]
The holistic approach in obtaining consent or objection accords with Māori
culture that places important emphasis on the collective
process of whānau
decision-making.
The support of Māori and the public in general is
vital to the success of this Act. Although there are many provisions that impose
duties to take into account the immediate family’s cultural and spiritual
needs, values and beliefs, this was felt to be insufficient
by the Māori
Party. As noted in the opposition of the Bill by the co-leader of the Māori
Party during its Third Reading
in Parliament, the Bill (and now, the law)
“is by no means sufficient to accommodate the views of whānau
decision-making
processes.”[101]
Despite
having such a strong cultural presence, a survey commissioned by the Ministry of
Health found that there is no universally
recognised cultural authority within
the Māori or Pacific communities from whom a ruling or pronouncement as to
the acceptability
of transplantation and the donation of organs would settle the
matter.[102] This lack of
authority within the communities distinguishes it from other religions (such as
Islam) that recognise religious figureheads
as capable of making religious
rulings by which believers then live.
In summary, when there is no
informed consent or objection from the deceased, reaching a general agreement on
organ donation can be
an extremely time-consuming and stressful process
involving a large number of parties who often base their decision on little or
no background information. When brain death occurs, the optimal organ
procurement period is highly time-sensitive and requires the
co-ordination of a
number of critical care
experts.[103] Hugely impractical
and oftentimes impossible when balanced against clinical realities, such a
lengthy consultation process does little
to encourage organ donation rates in
New Zealand.
C. New Zealand Conclusion
At present, organ demand and supply is supported by an organ sharing
agreement with Australia. The Trans Tasman Arrangements for the
Exchange of
Organs and Blood Products is the organ sharing agreement of the Transplant
Society of Australia and New Zealand. With
this informal inter-governmental
agreement, it is hoped that organ availability will be maximised in and between
both countries with
a distribution of organs that is “equitable and
affords transplant candidates in both countries equal consideration and
opportunity.”[104] This
agreement is similar – although less extensive – to other existing
exchange programs such as the Eurotransplant
Kidney Allocation
System.[105] While it appears in
Figure 5 that there are more organs going to Australia than those entering New
Zealand, the significance of this
difference is lessened by the small number of
organs available for exchange and complicated by the huge number of clinical
factors
that must be taken into account when matching donor organs with
recipients. Organs from New Zealand are only sent to Australia where
there are
no suitable recipients[106] and
through this agreement, New Zealand has access to a wider pool of organs and
there is efficient use of organs.
Figure 5.Total number of organs (liver, heart, lungs and kidneys) donated under the trans-Tasman organ sharing agreement.[107]
Despite the long gestation period of the present Act, consent for organ donation under the HTA is more confusing than it used it to be and certainly a far cry from the original goal of being “easily understood.”[108] Legislature’s attempt to create a more comprehensive Act has led to a highly complex Act that is likely to reduce the organ donation rate than increase it.
Figure 6. Number of Cadaveric New Zealand Donors 1993-2009.[109]
From Figure 6, there has been an increase in organ donors since the HTA came
into force on 1 November 2008. However, this increase
is still less than the
donor peak in 1998. New Zealand now has an Act with multiple hurdles to organ
donation and is so complicated
it could even discourage potential donors –
thus also defeating another objective of promoting “public
good.”[110] The reason for
this compromise could be due to the influence of Māori in Parliament, and
the need for the government to strike
a balance between the two extreme
positions of family decision-making and individual autonomy lest it loses public
favour. The need
to sift through numerous subparts to establish consent under
the Act has not only made the job of physicians much harder, it has
also made
organ donation laws inaccessible to the ordinary New Zealander.
Thus,
organ demand is a global issue and many countries have had to implement various
strategies to more effectively address this
public health burden. If New Zealand
is serious about increasing its rate of organ donation, it may have to look to a
different system.
One possibility worth considering is the opt-out system
recommended by the Council of
Europe[111] and adopted by
Singapore.[112]
II.
Singapore
Singapore is a 710km2 island with a population of nearly 5 million people.[113] Since its independence from Malaysia in 1965, Singapore’s politics has been dominated by the People’s Action Party – the state’s ruling political party since 1959.[114] This party has been central to Singapore’s rapid political, social and economic development, but it has also come under heavy criticism by observers who have described its politics as “paternalistic.”[115] However, despite any disgruntled feelings one may have towards tight political control by the government, it is hard to ignore the economic successes that Singapore has enjoyed despite its limited resource. This is attributed by many to the “overwhelming emphasis” placed on efficiency-based policies and economic fundamentals on all facets of its government.[116]
Figure 7. Singapore resident population
by ethnic group as of June
2009.[117]
With an estimated 7.3 people aged 15-64 years old per elderly person aged 65
years and over,[118] Singapore is
considered one of the fastest ageing societies in the Asia-Pacific
region[119] with the current 8.5%
of residents aged 65 years or older projected to increase to 19% by
2030.[120] A significant need of a
country with increased life expectancy is a corresponding demand for transplants
from organ failure. Quality
healthcare and life-preserving treatment has meant
that people can be sustained for longer while awaiting an organ transplant, but
ultimately organs are still needed unless death occurs first.
Singapore
has the fifth highest incidence of kidney failure in the
world[121] and the National Kidney
Foundation is responsible for the management of 24 different dialysis centres
across the island to meet the
needs of kidney
patients.[122] Organ demand has
continually outstripped supply and in 2006, twenty-two patients died while
waiting for an organ in
Singapore.[123] In 2009, there
were 460 kidney patients with end-stage organ failure in Singapore awaiting a
transplant, and only 66 patients received
new
kidneys.[124] It can be said that
Singapore, with its vision to “increase the yield of cadaveric organs as
well as to facilitate living organ
donation”,[125] takes a very
utilitarian approach in addressing the need for organs. At present, two separate
Acts govern the procurement of organs
to address this demand: the Medical
(Therapy, Research and Education) Act 1972 and the Human Organ Transplant Act
1987.
A. The Medical (Therapy, Research and Education) Act
1972
The common law rule of Williams v
Williams,[126] stating that a
property right cannot exist in the dead body of a human being, applied fully and
without exception, in
Singapore.[127] The adoption of
the Medical (Therapy, Research and Education) Act 1972 (MTERA) created the legal
right for persons to, during their lifetimes, donate parts of their body to any
approved hospital, medical
or dental school, college or university for
“medical or dental education, research, advancement of medical or dental
science,
therapy or transplantation” or to “any specified individual
for therapy or transplantation needed by
him.”[128] This Act is more
similar to New Zealand’s Human Tissue Act 1964 than it is to the 2008 Act
and this paper will address only
the parts of the MTERA relating to organ
donation.
1. Consent
Revised in 1985 with amendments in 1998, 2008 and 2010, the MTERA permits any
person over the age of 18 years and of sound mind to
donate any part of their
body for therapeutic purposes after his or her
death.[129] If a person has not
expressed any clear wish to donate his organs, relatives may consent to their
removal after death or immediately
before
death.[130] However, this may only
proceed if there is no contrary indication expressed by the deceased and if
family members in an identical
class or in a class with higher priority have not
lodged opposition.[131] Unlike New
Zealand law that has a fairly broad definition of family, relatives under the
MTERA are restricted to a small number and
prioritised in this order: the
spouse, an adult son or daughter, either parent, an adult brother or sister, a
guardian of the deceased
at the time of death, and any person authorised or
under obligation to dispose of the deceased’s
body.[132]
Similar to the
old law in New Zealand under the HTA 1964, written consent can be given at any
time, but oral consent is valid only
if given in the presence of two or more
witnesses and during a last
illness.[133] The donor may
revoke consent at any time either in writing or by an oral statement in the
presence of at least two other
people.[134]
Finally,
consent under the MTERA is not given a definition. The Act merely states that a
person “may give all or any part of
his body” with no reference to
how much information the donor possessed at the time of giving consent. In
contrast, the law
in New Zealand for living and cadaveric organ donations
require that “informed consent” – and nothing less –
be
given before organ removal may take place.
2. Lack of donations and the need for change
Despite “favourable legal
provisions”[135] designed to
facilitate the donation and use of organs for transplant and other medical
purposes, organ supply remained deficient
and the MTERA was considered a
“dismal failure.”[136]
Between 1970 and 1987, there were only 85 cadaveric kidney
transplants[137] with none
performed between 1979 and
1981.[138] In 1986, 14 years after
its introduction, only 27 000 organ pledges had been received – about 3%
of Singapore’s needs
– and not a single kidney had been available
from the pledges.[139] Thus,
encouraged by the recommendation of the Council of Europe in 1976 to its member
states to modify organ donation laws towards
the presumed consent
system,[140] the Singapore
government passed the Human Organ Transplant Act in an attempt to meet the
demand for kidney donations. Kidney transplants
had become routine and
successful treatment for kidney failure. The passing of this Act created two
separate parts to the Singaporean
law governing organ transplantation: one an
opt-out system for kidney donation under the Human Organ Transplant Act 1987
and, for
all other organs, an opt-in system under the MTERA.
B. Human Organ Transplant Act 1987
1.
Introduction
The HOTA provides an opt-out system that presumes the consent of an
individual with respect to organ removal. This is in contrast
to New Zealand
that has an opt-in system. A deceased is presumed to have consented to organ
donation unless he or she registered
an objection with the National Organ
Transplant Unit prior to
death.[141] Unlike New Zealand law
that respects the objection of family where no consent or objection has been
received, family members in Singapore
have no right to object.
The
opt-out system applied to all Singaporean citizens and permanent residents other
than Muslims. From 1987 to 2004, Singaporeans
and permanent residents of the
Muslim faith were automatically considered objectors to the HOTA because of the
religious belief that
the removal of organs after death was a desecration of the
deceased and that consent of the waris (paternal next-of-kin) is
necessary in culture before organs could be
donated.[142] However, Muslims
were still able to opt-in under the HOTA or pledge their organs under MTERA with
no right of next-of-kin to override
the
pledge.[143]
When first
introduced, any Singapore citizen or permanent resident who was of sound mind,
between twenty-one and sixty years of age,
and not Muslim was presumed to be a
donor unless he or she had registered dissent prior to
death.[144] The removal of organs
cannot be authorised if the circumstances surrounding a death are suspicious and
within the jurisdiction of
a
coroner,[145] or if there is
reason to believe that the deceased was “mentally disordered” and
consent has not been given from the
parent or guardian of the individual
concerned.[146]
As
presumed consent was a relatively new concept, the government was rigorous in
its public education so as to ensure widespread understanding,
ease fears and
overcome reluctance. Public concerns included fears that organs would be removed
before a person was truly dead, a
reluctance to donate because of superstition
as well as suspicion of the
government.[147] However, despite
these concerns, only a small number of people chose to opt-out under the Act
once it was passed in 1987.[148]
The small number of objections could be due to the social disincentive
introduced alongside the HOTA – those who opted out
of the system were
immediately placed low in priority for an organ donation together with Muslims
who had not opted in, with foreigners
seeking an organ transplant placed last in
the queue. 
The impact of the HOTA on organ supply in
Singapore was seen rapidly. Organ procurement was initially confined to the
kidneys of those
who had died accidental deaths. In 1988, there were 16 kidneys
acquired and a further 15 kidneys in
1989.[149] Together with organ
pledges under the MTERA, kidney transplants increased from 15 and 16 transplants
in 1986 and 1987, respectively,
to a total of 23 transplants in 1988 and 26 in
1989. However, this increase in organs coincided with an increase in the number
of
patients diagnosed with end-stage kidney failure. In 2003, only 34 of 675
end-stage kidney failure patients received new kidneys;
in general, only 5-10%
of kidney failure patients were receiving a kidney transplant annually in
Singapore.[150]
Figure 8. Live and cadaveric organ supply and demand in years 2004-2009.[151]
2. Living donor transplants
In 2004, provision was made for living donor organ transplants in the Act.
Prior to that, laws governing organ donation related wholly
to cadaveric donors.
Unlike New Zealand, where the only requirement is informed consent, all living
donor transplants in Singapore
– whether related or not
–[152] require the written
authorisation of a hospital ethics committee. Every hospital that performs
transplants has an ethics committee
that screens the eligibility of living donor
organ transplants under the
Act.[153] This is intended to
protect donors from exploitation and ensure that organs are not obtained
illegally.
During the public consultation period, several people
expressed a preference for a central ethics committee over hospital-specific
committees to ensure “uniformity in standard” as well as
independence of the
committee.[154] However, the
Ministry of Health felt that leaving ethics committees responsible for
individual assessments and decisions was “more
appropriate” since
the final responsibility for the care and well-being of the donor and recipient
lay with the transplant
team. Additionally, the Ministry felt that the rules and
procedures laid out under the HOTA were sufficient in safeguarding the interests
of all involved.[155] Finally,
while statutory declarations are not mandatory for potential recipients, the
court has recently alluded to the fact that
such a requirement would be
“prudent” and would “better equip [transplant ethics
committees] to carry out their
tasks.”[156]
Thus,
Singapore takes a very serious approach in governing living donor organ
transplants. While there is no standard requirement
of “informed
consent” like in New Zealand, the rigorous process of interviews with
ethics committees ensures that anyone
wanting to donate his or her organs is
fully aware of the risks and benefits of the procedure, and consent when given,
is fully informed
This standard imposed by the HOTA arguably affords more
protection for the donor as safeguards are in place to ensure that such
transplants
are completely altruistic in nature and not a result of coercion or
duress.
3. Increasing the pool of donors
Over the years, Singapore has introduced several amendments to increase the
organ donation rate. These include widening the type of
organs available for
donation; the removal of the Muslim exemption under the HOTA; and the removal of
the upper age limit for donation.
These amendments successfully increased organ
donation rate in Singapore.
(a) 2004 Amendment to widen the pool of organs
In 2004, the HOTA (Amendment) Act was passed by Parliament introducing
provisions to extend the donation of organs to include not
just the kidneys but
also the liver, heart and corneas. Lungs have not been brought under the HOTA as
it is felt that lung transplants
are not yet fully
established.[157] In addition,
HOTA’s confinement to accidental causes of death was extended to include
all causes of death. The success of the
2004 Amendment is reflected in the
numbers: in 2007 alone, cadaveric organs were used to perform 46 kidney
transplants, 12 liver
transplants, 4 heart transplants and 253 cornea
transplants.[158]
(b) The removal of the exemption for Muslims
In 2007, the Ministry of Health revealed that 21% of the patients on the
kidney waiting list were Malay despite them making up only
14% of the total
resident population.[159] This
disproportionate burden did not bode well for Muslims who, as non-organ pledgers
under MTERA and presumed objectors under HOTA,
were low in priority for an organ
under the HOTA allocation scheme. Following discussions with the Muslim Kidney
Action Committee
and the Ministry of Health, the Fatwa Committee of the Islamic
Religious Council of
Singapore[160] issued a religious
ruling permitting Muslims to come under the HOTA. The HOTA was amended to remove
the Muslim exclusion[161] and the
“vast majority” of Muslims has since chosen to remain under the
HOTA, with reports stating that four Muslim donors
have since donated organs to
benefit 15 people.[162]
Organ donation was a very sensitive topic that was avoided amongst
Muslims because of belief that it did not align with religious
and cultural
beliefs that place value on an intact body. While there was significant
potential for many Muslims to be offended by
including them under the opt-out
system, this obstacle was overcome through thoughtful process between religious
leaders, health
professionals and policy-makers. Through awareness of the need
for organs and teaching by Islamic leaders, Muslims have grown to
accept organ
donation and the organ donation rate has increased.
(c) Removal of the upper age limit
Previously, the HOTA did not apply to deceased persons over 60 years old. Any
person over 60 years who wished to donate his organs
needed to have pledged them
under the MTERA. However, the Health Ministry removed Singapore’s upper
age limit in 2009 so as
to further increase the pool of organs. By removing this
limit, Singapore now shares similar practice with Norway, Spain, United
Kingdom
and the United States that assess transplantable organs for medical suitability
and do not impose an upper age limit for
cadaveric organ
donation.[163] In addition, the
removal of the upper age limit more than 20 years after the adoption of the HOTA
gave many older Chinese Singaporeans,
whose beliefs are steeped in Confucian
ethics that place value on upholding the integrity of one’s
body,[164] time to warm to the
common goal of saving lives through organ
donation.[165]
4. Payment for organs
Like New Zealand, it is strictly forbidden for anyone to enter into a
contract to supply or receive an organ for monetary consideration
in Singapore.
However, the laws were amended in 2009 to allow donor reimbursement. Beyond
that, trade is prohibited and the penalties
for organ trading have become more
severe to discourage the activities of middlemen and organ syndicates.
(a) Donor Reimbursement
Donor reimbursement was introduced to “better protect...welfare and
ensure that [live donors] do not suffer...because of their
altruistic
acts.”[166] Prior to the
Amendment in 2009, donors bore any losses incurred from missed work or lost
insurance coverage. This view was considered
“outdated”,
“unfair to the donors” and irregular against current accepted
practices overseas.[167]
Thus, in light of the significant risks undertaken by altruistic donors
for the benefit of others,[168]
the government permitted reimbursements to “defray” any costs
incurred relating to such a living organ
donation.[169] The National Kidney
Foundation is responsible for the ‘Donor Support Programme’ which
offers several benefits including
a reimbursement to donors for loss of income
of up to $5 000.[170] However,
unlike New Zealand that limits financial assistance to those received from Work
and Income New Zealand, reimbursements over
and above any reimbursements
received from the ‘Donor Support Programme’ is permitted and is at
the discretion of organ
recipients who wish to assist organ donors with expenses
incurred as a result of their altruistic
act.[171]
(b) Increased penalties for syndicated organ trading and
the case of Tang Wee Sung
In September 2008, retail magnate Tang Wee Sung was found guilty of
attempting to buy a kidney from Indonesian Sulaiman Damanik and
making a false
declaration under the Oaths and Declarations Act 2000 confirming that no money
or financial gain had been paid to
procure the organ and that the prospective
donor, Sulaiman Damanik, was a
relation.[172]
Mr Tang, who
had been given one to two years to live without a transplant from a live donor,
sought to procure the kidney through
a “middle-man” and was prepared
to fork out $300,000 to see the deal through. However, suspicions were raised
and the
illegal contract was eventually discovered and reported. When deciding
on an appropriate sentence, the district court judge highlighted
that
society’s main disapproval is “focused on the middlemen who profit
from illicit organ trading and not the dying
patient in need of a transplant or
the poor”[173] as seen by
the stance of the Ministry of Health to “take a sympathetic approach to
the plight of the exploited donors and the
basic instinct of kidney failure
patients to try to
live.”[174]
Despite
the fact that criminal culpability for offenders under the HOTA is not
distinguished between the different roles played by
offenders under the Act, the
district court judge took a sympathetic approach towards the plight of Tang and,
in recognising that
an extended jail term would cause a disproportionate toll on
Tang’s health,[175] found it
appropriate to invoke the doctrine of judicial
mercy.[176] Tang was sentenced to
a mandatory penalty of one day’s imprisonment and a $10 000 fine under
the Oaths and Declarations Act
2000 and a $7 000 fine under the HOTA. At the
time of sentencing and prior to the 2009 Amendment, the maximum penalty under
the HOTA
for entering into such a contract was $10 000 fine and/or 12 months
imprisonment.[177]
Indonesian
Sulaiman Damanik was similarly given a relatively light sentence of 2 weeks
imprisonment and a fine of $1 000 for illegal
organ supply in contravention of s
14(2) of the HOTA as well as making a similar false statutory declaration under
the Oaths and
Declarations Act 2000. The district court judge took sympathy
towards the dire financial situation of the accused and agreed with
the view
that a person in such a vulnerable position receiving a similar sentence to that
of the “ringleader” would “undoubtedly
offend the innate sense
of justice of the reasonable
man.”[178]
Conversely,
the High Court upheld the sentence of 14 months imprisonment imposed by the
District Court for Wang Chin Sing’s
role as middleman for two kidney
transplants.[179] In March 2008,
Wang successfully brokered the sale of a kidney from an Indonesian to another
Singaporean, Juliana Soh, for a fee
of $8
000.[180] In May 2008, Wang began
the process of procuring an organ on behalf of Tang. Aware of his wealth, Wang
quoted a fee five times the
amount paid by Juliana
Soh.[181] For his elaborate role
in orchestrating the illegal supply of an organ, exacerbated by his
‘cavalier manner in...fabricating
several overlaying shrouds of deceit to
ensure the success of his
“trade”’,[182]
the High Court found him “fixed with the lion’s share of the stigma
of culpability.”[183] Two
months after this event, the HOTA was amended with the intention to impose
heavier penalties – a fine not exceeding $100,000
or up to 10 years
imprisonment or both –
[184]on “middlemen”
and organ trading syndicates.
While the HOTA may appear draconian, it
seems that in practice it is administered with due regard to the needs and
interests of grieving
families. Recognising that good relationships between
healthcare workers, the general public and the government are vital to the
common goal of saving lives through organ donation, the transplant unit places
an emphasis on education over the exercise of enforcement
powers. In addition,
it is highly unlikely that the government will make it a statutory duty to
harvest organs as this can create
zeal amongst doctors and create a conflict of
interest that can potentially jeopardize doctor-patient relationships. Thus,
understanding
the importance of the roles of the multiple stakeholders in this
highly sensitive arena ensures that there is good balance struck
between
increasing organ donation to save lives and ensuring the best possible process
for the donor family.[1]
Figure 9. Number of Cadaveric
Singaporean Donors
2004-2009.[185]
III.
Would an opt-out system be a better
option for New Zealand?
Organ donation laws have continuously evolved in Singapore. Driven by a
desire to maximise self-sufficiency in kidney
donation,[186] Singapore is
constantly hunting for ways to increase organ donation rates. Since 2004, the
law has been repeatedly amended to accommodate
the perceived needs of Singapore,
namely the rising demand for organs as a result of organ failure. The success of
such a policy
may be judged in several ways including clinical outcomes, the
increase in donor rates and public acceptance of the law.
When assessed
purely on improved clinical outcomes for organ failure patients, the HOTA is a
success. By taking steps to increase
donation rates, more patients have been
able to receive organs. However, as seen in Figure 9, the success of HOTA is not
necessarily
reflected in increased numbers. This could be due to many factors
– both clinical and social – including the number of
deaths that
vary annually[187] and the
viability of organs for transplantation. On the other hand, if success of the
HOTA is assessed by the measure of public acceptance
of the law, it is
undoubtedly a success. This is largely attributed to the Singapore’s
staged implementation of the HOTA and
the pro-active steps taken by the
government to increase awareness. By initially excluding groups that were most
likely to object
to organ donation (namely Muslims and older Chinese), the
government allowed them time to warm to the idea of organ donation for
the
greater public good. In addition, there have been many active steps towards the
widespread dissemination of educational material
through various media so as to
increase awareness.
All things considered, it can be said that Singapore
has successfully implemented a law that can only improve organ donor rates.
However,
this approach is not extraordinary – Singapore’s move to an
opt-out system was triggered in part by a recommendation
by the Council of
Europe to its member states, many of which are similar in culture to New
Zealand.[188] Regardless, whether
such bold utilitarian moves by a country to address organ demand should be
lauded and replicated in New Zealand
is not as straightforward. This is so for
many reasons including the emphasis on Māori and Treaty principles, the
emphasis on
the ‘gift’ status of organs, and the strong culture of
informed consent in healthcare.
First, death and grieving are highly
significant events amongst Māori and there is deep familial interest in the
sanctity of
an intact body. It is likely that any law that deprives a family of
the right to contribute to such a significant decision will offend
their
identity as tangata whenua (“people of the land”).
Second, because of cultural beliefs, there are few Māori donors
despite a disproportionate number of Māori on organ waiting
lists.
Singapore’s allocation scheme that prioritises by donation status and
medical need is likely to stir up controversy
in New Zealand. This is because
many Māori will find themselves low in the priority queue because of their
beliefs and regardless
of medical need. Such an arrangement also conflicts with
many New Zealanders who believe that donated organs are an “unconditional
gift” that should “be allocated to those with the greatest need for
them” and that alternatives would “raise
serious distributive
issues.”[189]
The
political structure within New Zealand is such that minority parties now have a
larger say than ever before. As such, any political
party that attempts to
advance a policy that is unfavourable towards the beliefs and values of any
group is likely to suffer significant
political repercussions. This is even more
so when the Crown is obliged under the Treaty of Waitangi to protect the
well-being of
Māori.[190]
This commitment is reflected in the Ministry of Health that emphasised the
importance of ensuring Māori are “given the
opportunity to experience
the same health status as
non-Māori.”[191]
Third, informed consent is so entrenched in the New Zealand healthcare
system that a move to introduce an opt-out system is unlikely
to be received
wholeheartedly. While the old standard of “lack of objection” is
quite similar to presumed consent and
thus not unfamiliar, the move from
“lack of objection” to informed consent under the new Act was
executed intentionally
in order to align with current healthcare standards under
the Code. The history of medical procedures and experiments on non-consenting
patients that mars New Zealand’s medical history caused public outrage.
This outrage was appeased only by an inquiry and eventually
a full statement of
patient rights that enshrined informed consent in New Zealand. Thus, a law
change essentially reversing the standard
from that of the widely-accepted
informed consent to presumed consent is likely to confuse people, cause great
unease and also raise
suspicion.
Finally, there is no guarantee that
organ donation rates in New Zealand will improve significantly enough to make
the cost worthwhile
for New Zealand. This is because while greater organ
donation rates certainly means that fewer lives will be lost, the Singaporean
approach does come with political and social costs that may not be beneficial to
New Zealand in the long run. The different political
and social structures of
New Zealand as compared to Singapore mean that introducing such a controversial
law is likely to cause public
upset and have great political cost for the
government.
While an opt-out system may not be beneficial for New
Zealand to adopt, a key strategy that has succeeded in Singapore is educating
the public on organ donation and demystifying cultural and societal
misconceptions surrounding it. As a multi-ethnic and multi-religious
country,
there are many mindsets and superstitions surrounding death and organ donation.
However, these have been clarified and put
at ease through extensive discussion
and education targeted at different groups in society. By emphasising the
greater public good
of organ donation and drawing on the altruistic nature of
people, Singapore’s utilitarian approach has led to a greater number
of
organs for transplant.
Conclusion
Organ demand has always outstripped supply and both New Zealand and Singapore
have taken very different approaches in their attempts
to increase organ
donation rates. New Zealand has an opt-in system and has enhanced recognition
for the wishes of a deceased. However,
it is complex and highly time-consuming,
particularly where a deceased’s wishes are unknown. The law has created
multiple hurdles
for potential donors to overcome and it may not have the
desired outcome of increasing organ donation rates. On the other hand, Singapore
has an opt-out system that presumes the consent of individuals unless they have
registered an objection in their lifetime. In doing
so, it can be said that the
government takes advantage of a donor’s reluctance to broach the matter of
death and organ donation
and essentially decides for him or her. Through this
system, Singapore has garnered public acceptance of the law and successfully
increased organ donation rates.
In conclusion, it is not guaranteed that
an opt-in system such as in Singapore will prosper in another country. In New
Zealand, history
as well as the difference in cultures and national opinion has
created a climate unfavourable towards an opt-out system that presumes
consent.
However, the approach taken by Singapore demonstrates that it is possible to
implement strategies to increase the organ
pool while still being sensitive to
the needs of different cultures. While an opt-out policy may not necessarily
work in New Zealand,
Singapore’s success with HOTA shows that thoughtful
policy making and vigorous public education can make a difference in increasing
organ donation rates. If improvement in education and awareness is coupled with
an effective management of an opt-in system, such
that prior-registered informed
donation can be verified during the period of organ viability, improvement can
possibly be achieved
under the current legal framework.
Appendix 1. Work and Income New Zealand Financial
Assistance for Live Organ Donors
Appendix 2. Decision-making process under the Human Tissue Act 2008
Appendix 3. Official opt-out
form under the Human Organ Transplant Act 1987
[1] World Health Organization
“Human Organ Transplantation” (2010)
<www.who.int>.
[2] Ingvar
Karlberg and Gudrun Nyberg “Cost-Effectiveness Studies of Renal
Transplantation” (1995) 11 International Journal
of Technology Assessment
in Health Care 611.
[3] (16 March
1989) 53 Singapore Parliamentary Debates
297.
[4] Statistics New
Zealand “National Population Estimates: June 2010 quarter”
(2010)
<www.stats.govt.nz>.
[5]
Matthew Palmer “New Zealand Constitutional Culture” (2007) 22 NZULR
565 at 568.
[6] Andrew Geddis
Electoral Law in New Zealand: Practice and Policy (LexisNexis,
Wellington, 2007) at 34.
[7] Ibid,
at 40.
[8] Statistics New
Zealand “2006 Census” (2006)
<www.stats.govt.nz>.
[9]
Ministry of Health Diabetes in New Zealand: Models and Forecasts 1996-2011
(2002) at 3.
[10] Diabetes
New Zealand “Diabetes Awareness Week 2008 Fact Sheet” (2008)
<www.diabetes.org.nz>
[11]
Ministry of Health, above n 9, at
7.
[12] Cabinet Paper
“Review of the Regulation of Human Tissue and Tissue-based Therapies:
Paper Two” (March, 2006) at
2.
[13] Organ Donation New
Zealand “International Donor Rates” Organ Donation New Zealand
<www.donor.co.nz>
[14] Compiled from: Australia and
New Zealand Organ Donation Registry Annual Reports
2005-2010.
[15] Organ Donation
New Zealand Annual Report 2009 (2009) at
12.
[16]
Ibid.
[17] The Code of Health and
Disability Services Consumers’ Rights
1996.
[18] Health and Disability
Commissioner Act 1994, s 2
[19]
The Code of Health and Disability Services Consumers’ Rights
1996.
[20] New Zealand Bill of
Rights Act 1990, s 11.
[21] Human
Tissue Act 2008, s 56.
[22] Ibid,
s 60.
[23] Ibid, s
56.
[24] Ibid, s
61.
[25] Cabinet Paper
“Review of the Regulation of Human Tissue and Tissue-based Therapies:
Paper Three” (2004) at 11 –
12.
[26] Ministry of Health
Review of Human Tissue and Tissue-based Therapies: Submissions Summary
(Ministry of Health 2004) at
93.
[27] Work and Income New
Zealand “Financial Assistance for Live Organ Donors”
<www.workandincome.govt.nz>.
[28]
See Appendix 1
[29] See generally
P.D.G. Skegg and Ron Paterson (eds) Medical Law in New Zealand (Thomson
Brookers, 2006) at 574.
[30]
Peter Skegg “The Removal and Retention of Cadaveric Body Parts: does the
Law Require Parental Consent?” (2003)Otago Law
Review 10(3) 425 at
428.
[31] Human Tissue Act 1964,
s 3(1).
[32] Ibid, s
2(2).
[33] Ibid, s
2(2)(a).
[34] Ibid, s
2(2)(b).
[35] Ibid, s 2(2)(c).
[36] Human Tissue Act 1964, s
2(2)(a) and P D G Skegg “The Removal and Retention of Cadaveric Body
Parts: Does the Law Required
Parental Consent?” (2003) 10(3) Otago L. Rev.
426 at 429.
[37] Human Tissue Act
1964.
[38] Ibid, s
3(1).
[39] Jennifer Ngahooro
& Grant Gillett “Over my dead body: the ethics of organ donation in
New Zealand” (2004) 117 New
Zeal Med J 1051, at 1053. This practice was
validated by the official website for organ donation in New Zealand: Organ
Donation New
Zealand “Talk to your family” (2008)
<www.donor.co.nz>.
[40]
Human Tissue Act 1964.
[41] Ibid,
s 3(2)(b).
[42] Cabinet Paper
“Review of the Regulation of Human Tissue and Tissue-based Therapies:
Paper One” (2004) at
1.
[43] The waiting list for
organ donations (Campbell Live, 20 February
2007).
[44] Organ Donation New
Zealand “Number of deceased organ donors in New Zealand” (2008)
<www.donor.co.nz>.
[45]
Petition 2002/25 of Andy Tookey and 1,169 others (26 November
2003).
[46] Ibid, at 3 and
7.
[47] Ibid, at
8.
[48] (3 May 2006) 630 NZPD
2748.
[49] Human Tissue (Organ
Donation) Amendment Bill 2006
(33-1).
[50] Cabinet Paper, above
n 12, at 9
[51] Human Tissue
(Organ Donation) Amendment Bill 2006 (33-1) (Health Committee Report) at 2. Note
also that while the Committee felt
it was unnecessary at this time, it
recommended an amendment to the Human Tissue Bill so as to allow for the set up
of a register
at a later time. This amendment was accepted and is s 78 of the
Act.
[52] Ministry of Health
Review of Human Tissue and Tissue-based Therapies: Submissions Summary (
2004) at 10 – 13.
[53] (14
November 2006) 635 NZPD
6467.
[54] Cabinet Paper, above n
42, at 3.
[55] Human Tissue Act
2008, s 9(1).
[56] Ibid, s
9(2).
[57] Organ Donation New
Zealand “What happens? – Organ Donation” (2008)
<www.donor.co.nz>.
[58]
Human Tissue Act 2008, s
43(1)(a).
[59] Ibid, s
43(1)(b).
[60] Human Tissue Act
1964, s 3(2)(a).
[61] Organ
Donation New Zealand “Questions about donation” (2008)
<www.donor.co.nz>.
[62]
Human Tissue Act 2008, s
43(2).
[63] Ibid, s 43(3)(a).
[64] Jennifer Ngahooro &
Grant Gillett, above n 39.
[65]
Human Tissue Act 2008, s
9(1)(a).
[66] NZ Transport Agency
“Organ and tissue donation” (2010)
<www.nzta.govt.nz>.
[67]
Human Tissue Act 2008, s
14(1).
[68] Ibid, s
14(2).
[69] Ibid, s
15.
[70] Human Tissue Act
2008.
[71] Human Tissue Act 2008,
s 18.
[72] Ibid, s
6.
[73] Organ Donation New
Zealand “Talk to your family” (2008)
<www.donor.co.nz>.
[74]
Human Tissue Act 2008, s
31(2)(b).
[75] Ibid, s
39(5).
[76] Ibid, s
39(4).
[77] Ibid, s
43(2).
[78] Ibid, s
43(3)(b).
[79] Ibid, s
39(2).
[80] Ibid, s 38(3)(b)-(c).
[81] Ibid, s
38(3)(a)
[82] Ibid, s
42.
[83] Ibid, s
42.
[84] Ibid, s
35.
[85] Ibid, s
31(2)(c).
[86] Ibid, s
6.
[87] Ibid, s
40(a).
[88] Human Tissue Act
1964, s 3(2).
[89] Human Tissue
Act 2008, s 40.
[90] Ibid, s
36.
[91] Ibid, s 40(c) (emphasis
added).
[92] Human Tissue Act
2008, s 31(2)(d) and 36.
[93]
Human Tissue Act 2008, s
10(2).
[94] Ibid, s
10(1).
[95] Ibid, s
11.
[96] Ibid, s
41(2).
[97] Ibid, s
40(b).
[98] Ibid, s
42.
[99] Treaty of Waitangi Act
1975.
[100] Ministry of
Māori Development Hauora o te tinana me ōna tikanga : a guide for
the removal, retention, return and disposal of Māori body parts and organ
donation (1999) at
10.
[101] (8 April 2008) 545
NZPD 15428.
[102] Mauri Ora
Associates Māori Pacific Attitudes Towards Transplantation: Professional
Perspectives(prepared for the Ministry of Health for Renal Services) at 9.
[103] O’Connor K.J.,
Wood, K.E. & Lord, K. “Intensive Management of Organ Donors to
Maximize Transplantation” (2006)
26 Critical Care Nurse at
94.
[104] Members of the
Standing Committee of TSANZ “Trans Tasman Exchange Principles”
(2002) The Transplantation Society of Australia
and New Zealand
<www.tsanz.com.au>.
[105]
Eurotransplant International Foundation “About Eurotransplant”
<www.eurotransplant.org>.
[106]
Australia and New Zealand Organ Donation Registry Annual Report 2010 at 25.
[107] Organ Donation New
Zealand Annual Report 2009 (2010), at
9.
[108] Cabinet Paper
“Review of the Regulation of Human Tissue and Tissue-based Therapies:
Paper One” (2004) at 4.
[109] Australia and New Zealand
Organ Donor Registry Annual Report 2010 Appendix II (2010) at
2.
[110] Ministry of Health
Review of the Regulation of Human Tissue and Tissue-based Therapies:
Discussion document. (Ministry of Health 2004) at
1.
[111] Council of Europe
Resolution 78(29) on Harmonisation of legislation of member states to
removal, grafting and transplantation of human substances. Adopted
by the
Committee of Ministers of the Council of Europe (11 May
1978).
[112] (9 December 1986)
48 Singapore Parliamentary Debates
866.
[113] National Population
Secretariat, Prime Minister’s Office and others. Population In Brief
2010 (2010) at 1.
[114]
People’s Action Party “Party Milestones” (2010) People’s
Action Party
<www.pap.org.sg>.
[115]
RS Milne and DK Mauzy Singapore: The Legacy of Lee Kuan Yew (Westview
Press, Boulder (Colorado) 1990) at 90.
[116] Ho Khai Leong
“Citizen Participation and Policy Making in Singapore: Conditions and
Predicaments” (2000) 40(3) 436 at
438.
[117] Singapore Department of
Statistics Monthly Digest of Statistics Singapore, July 2010 (2010) at
2.2.
[118] Ibid at
1.
[119] S Vasoo, T Ngiam and P
Cheung “Singapore’s ageing population” in DR Phillips (ed)
Ageing in the Asia-Pacific Region: Issues, policies and future trends
(Routledge, New York, 2000) 174 at 174.
[120] WHO Western Pacific
Country Health Information Profiles 2009 Revision (WHO Regional Office for
the Western Pacific, Manila, 2009) at
394.
[121] National Kidney
Foundation Singapore “Did you know...?” (2009) National Kidney
Foundation Singapore <www.nkfs.org>
.
[122] National Kidney
Foundation Singapore “NKF Dialysis Centre Location” (2009) National
Kidney Foundation Singapore <www.nkfs.org>
.
[123] Ministry of Health
Public Consultation Paper on Proposed Amendments to the Human Organ
Transplant Act (2008) at 5.
[124] National Organ
Transplant Unit from Chin Kwong Cheong.
[125] Ministry of Health
Public Consultation Paper on Proposed Amendments to the Human Organ
Transplant Act (2008) at
5.
[126] Williams v Williams
[1882] UKLawRpCh 60; (1882) 20 Ch D 659
[127]
KSH Terry “Rights, Ethics and the Commercialisation of the Human
Body” (2000) Sing. J. Legal Stud. 483 at
497.
[128] Medical (Therapy,
Education and Research) Act 1972, s
7.
[129] Ibid, s
3.
[130] Ibid, s
4.
[131] Ibid, The Schedule of
Authorised Persons.
[132] Ibid,
The Schedule of Authorised
Persons.
[133] Ibid, s 8
(emphasis added).
[134] Ibid, s
9.
[135] (2 June 1972) 31
Singapore Parliamentary Debates
1343.
[136] (9 December 1986)
48 Singapore Parliamentary Debates
865.
[137] Eugene Shum and
Arthur Chern “Amendment of HOTA” (2006) 35 Ann Acad Med Singapore
428 at 429.
[138] Valerie Chew
“Human Organ Transplant Act (HOTA)” (2008) Singapore Pages/Singapore
Infopedia, National Library Board Singapore
<infopedia.nl.sg
>
[139] (9 December 1986) 48
Singapore Parliamentary Debates
873.
[140] (9 December 1986) 48
Singapore Parliamentary Debates
866.
[141] See Appendix
3.
[142] Ministry of Health
“Summary of Feedback Received” (2007) Ministry of Health
<www.moh.gov.sg>.
[143]
Revocation of such a gift was limited to statements made by the donor only. See:
Medical (Therapy, Education and Research) Act 1972,
s
9.
[144] To opt-out of the
HOTA, a person must fill out an opt-out form and send it to the National Organ
Transplant Unit. See Appendix 3.
[145] Human Organ Transplant
Act 1987, s 6(1).
[146] Ibid, s
5(2)(e).
[147] (9 December
1986) 48 Singapore Parliamentary Debates 868 and
874.
[148] Khaw Boon Wan,
Minister for Health “MOH Budget Speech (Part 2) – Transforming
Healthcare” (speech to Parliament,
Singapore, 6 March
2007).
[149] Bernard Teo
“Organs for Transplantation The Singapore Experience” 21(6) The
Hastings Center Report 10 at
10.
[150] A Vasthsala
“Twenty-five facts about kidney disease in Singapore: A remembrance of
World Kidney Day” (2007) 36 Ann
Acad Med Singapore 157 at 159.
[151] National Organ Transplant
Unit from Chin Kwong
Cheong.
[152] Under the draft
Amendment Bill, written authorisation from the ethics committee was only
required for living unrelated organ transplants.
However, pursuant to a
recommendation by the Singapore Academy of Law, the requirement for a written
authorisation was extended to
include living related organ transplants as it was
felt that the risk of pressure and undue influence was possibly even greater in
living related organ transplant scenarios. (see Ministry of Health “Public
Consultation on the Human Organ Transplant (Amendment)
Bill – Summary of
feedback received” (2003) Ministry of Health
<www.moh.gov.sg>).
[153]
Human Organ Transplant Act 1987, s
15A(2).
[154] Ministry of
Health “Public Consultation on the Human Organ Transplant (Amendment) Bill
– Summary of feedback received”
(2003) Ministry of Health
<www.moh.gov.sg>.
[155]
Ibid.
[156] Public
Prosecutor v Tang Wee Sung [2008] SGDC 262
[45]
[157] Ministry of Health,
above, n 154.
[158] National
Organ Transplant Unit from Chin Kwong
Cheong.
[159] Ministry of
Health “Public Consultation on the Human Organ Transplant (Amendment)
2007” (2007) Ministry of Health
<www.moh.gov.sg>.
[160]
Majlis Ugama Islam Singapura – Islamic Religious Council of
Singapore
[161] Human Organ
Transplant Act 1987, s 5(2)(f) prior to
amendment.
[162] “More
muslims get transplants since organ donor law change” The Straits Times
(Singapore, 11 February
2009).
[163] Ministry of
Health Public Consultation Paper on Proposed Amendments to the Human Organ
Transplant Act (2008) at
6.
[164] John Gilman
“Religious Perspectives on Organ Donation” (1999) 22(3) Critical
Care Nursing Quarterly
19.
[165] Email from Pheng
Soon Lee to Joanne Lee regarding Chinese culture towards organ donation (9
September 2010).
[166] (23
March 2009) 85 Singapore Parliamentary Debates
3426.
[167]
Ibid.
[168] Ministry of Health
Public Consultation Paper on Proposed Amendments to the Human Organ
Transplant Act (2008) at
8.
[169] Human Organ Transplant
Act 1987, s 14(3)(c).
[170]
National Kidney Foundation “Kidney Live Donor Support Programme”
(2009)
<www.nkfs.org>.
[171]
Ministry of Health “Amending HOTA to save more lives” Health
Scope (Singapore, April
2009).
[172] Public
Prosecutor P v Tang Wee Sung [2008] SGDC
262
[173] Ibid, at
[20].
[174] (21 July 2008) 84
Singapore Parliamentary Debates
17.
[175] Public Prosecutor
P v Tang Wee Sung, above n 172, at
[51
[176] Ibid, at
[49].
[177] Human Organ
Transplant Act 1987, s 14(2), prior to amendment in
2004.
[178] Public
Prosecutor v Sulaiman Damanik and Another [2008] SGDC 175 at
[28].
[179] Wang Chin Sing v
Public Prosecutor [2008] SGHC
215
[180] Public Prosecutor
v Wang Chin Sing [2008] SGDC 268 at
[13].
[181] Ibid, at
[39].
[182] Wang Chin Sing v
Public Prosecutor, above n 179, at
[4].
[183] Ibid, at
[5].
[184] Human Organ
Transplant Act 1987, s14(2A).
[185] National Organ Transplant
Unit from Chin Kwong
Cheong.
[186] Ministry of
Health Public Consultation Paper on Proposed Amendments to the Human Organ
Transplant Act (2008) at
3.
[187] “Deaths from
Non-Natural Causes” Singapore Statistics Newsletter (Singapore,
September 2002) at 21.
[188]
Council of Europe Resolution 78(29) on Harmonisation of legislation of member
states to removal, grafting and transplantation of human substances. Adopted
by
the Committee of Ministers of the Council of Europe (11 May
1978).
[189] Ministry of Health
Review of the Regulation of Human Tissue and Tissue-based Therapies:
Submissions Summary (Ministry of Health 2004) at
93.
[190] Ministry of
Māori Development Hauora o te tinana me ōna tikanga : a guide for
the removal, retention, return and disposal of Māori body parts and organ
donation (1999) at
10.
[191] Ministry of Health
Review of the Regulation of Human Tissue and Tissue-based Therapies:
Discussion document. (Ministry of Health 2004) at 5.
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