KEY POINTS:
At first glance, the issue of organ donation looks simple. A person's stated consent to the removal of any of their organs at death should be respected, over-riding any objection from their grieving family. If only it were that simple.
The complicating fact lies in that phrase "at
death". A body suitable for organ donation is likely to be still alive, without brain function but being kept artificially alive after a trauma the body will not survive. If doctors were to respect the person's stated consent against the wishes of grieving family members, they would have to take the body away alive, denying those relatives the right to be present at their loved one's death.
Doctors will not do it. Regardless of the law, if necessary, they say they will not act against the wishes of a declared donor's family. Unfortunately, they do not often explain the reason; they obviously fear that to publicise the fact that the decision is normally made when a donor body is still alive would not help to arrest the decline in organ donations.
But without that explanation, the public is at a loss to understand Parliament's continued reluctance to act on the often publicised petition of a North Shore parent, Andy Tookey, who wants the law to declare a donors' registered consent paramount.
Parliament's legislative response to Mr Tookey's campaign was passed into law on Tuesday night. It does not establish a national register of organ donors, as he advocates, nor does it give the last word to a potential donor's driving licence declaration.
Instead, it sets out a donation procedure that aims to satisfy the wishes of all concerned.
The new Human Tissues Act recognises a hierarchy of consent, beginning with the donor who will have given "informed consent" either in writing or orally with at least two witnesses. The intention is clearly to encourage the donor to discuss the decision with others.
Willing donors must also nominate another person to represent their consent in the event of a possible donation. That person could argue for the donation if family members were reluctant but the law allows doctors not to act on a donor's consent if they face a risk of persecution. A disappointed Mr Tookey believes they will not take an organ if even one family member objects, and that the law will change nothing in practice.
Health Minister David Cunliffe thinks the new consent procedure sets out a better balance of rights. It encourages individuals to consider the impact of their decision on their families but they retain the right, he says, to make a decision that their family do not in the end agree with. Much will depend on the person's chosen agent, who might not be a family member.
But in leaving surgeons vulnerable to prosecution by opponents of a donation, the act leaves them in an invidious position. They will no doubt continue to require unanimous family consent before taking a person's organs, and in the usual circumstances that is as it should be.
The ultimate wish of both petitioners and medical professionals is to increase the number of organs available for transplant. The new law requires doctors to consider a family's spiritual and cultural values and beliefs before acting on an individual's consent. That did not satisfy the Maori Party, which opposed the legislation because it did not give whanau power to veto an individual's consent.
Law alone cannot improve this country's rate of organ donation. It will need the support of honest public appeals and doctors skilled in the art of helping people to realise when an imminent death permits a gesture of life-giving generosity.