One difficulty in dealing with the concept of medical treatment in Canadian criminal law is to reconcile some of the dictates of the Criminal Code, which have ancient origins, with the reality of modern medicine. Such a situation arises when we ask whether a surgical operation is prima facie legal or illegal. This may be considered a rather narrow and esoteric question, but it has and will become increasingly important with the development of modern medical technology. The initial presumption of legality or illegality may determine the final characterization of a given medical intervention as lawful or unlawful. This is particularly important in such areas as non-therapeutic human medical research and live-donor organ transplantation. This enquiry explores the present situation in Canadian criminal law with respect to the legality of medical interventions and makes some recommendations for change.
Why should we respect the wishes which individuals may have about how their body is treated after death? Reflecting on how and why the law respects the bodies of the living, we argue that we must also respect the ‘dead’. We contest the relevance of the argument ‘the dead have no interests’, rather we think that the pertinent argument is ‘the living have interests in what happens to their dead bodies’. And, we advance arguments why we should also respect the wishes of the relatives of the deceased regarding what happens to the bodies of their loved ones. In our analysis, we use objections to organ and tissue donation for conscientious reasons (often presented as religious reasons) to show why the living can have interests in their dead bodies, and those of their dead relatives, and why these interests should be respected.
Objectives To examine the impact of a system of presumed consent for organ donation on donation rates and to review data on attitudes towards presumed consent. Conclusion Presumed consent alone is unlikely to explain the variation in organ donation rates between countries. Legislation, availability of donors, organisation and infrastructure of the transplantation service, wealth and investment in health care, and public attitudes to and awareness of organ donation may all play a part, but their relative importance is unclear. Recent UK surveys show support for presumed consent, though with variation in results that may reflect differences in survey methods.
Allocation of very scarce medical interventions such as organs and vaccines is a persistent ethical challenge. We evaluate eight simple allocation principles that can be classified into four categories: treating people equally, favouring the worst-off, maximising total benefits, and promoting and rewarding social usefulness. No single principle is sufficient to incorporate all morally relevant considerations and therefore individual principles must be combined into multiprinciple allocation systems. We evaluate three systems: the United Network for Organ Sharing points systems, quality-adjusted life-years, and disability-adjusted life-years. We recommend an alternative system—the complete lives system—which prioritises younger people who have not yet lived a complete life, and also incorporates prognosis, save the most lives, lottery, and instrumental value principles.
While clearly a lot of work had gone into producing this report, a major concern for the British Medical Association is the way the report itself, and members of the Taskforce in presenting the report, discussed the evidence about the impact of presumed consent on donation rates.
Presumed consent alone is unlikely to explain the variation in organ donation rates between countries. Legislation, availability of donors, organisation and infrastructure of the transplantation service, wealth and investment in health care, and public attitudes to and awareness of organ donation may all play a part, but their relative importance is unclear. Recent UK surveys show support for presumed consent, though with variation in results that may reflect differences in survey methods.
Legislative restrictions on the sale of organs, gametes and surrogacy services are often seen as having no basis other than mere prejudice or taboo. This paper argues instead that they can be read as instances of a broader decommodification of healthcare provision established in Britain with the creation of the NHS in 1948. Restrictions on the marketisation of medicine were justified by Aneurin Bevan, the founder of the NHS, and by Richard Titmuss, one of its chief academic defenders, in distinctly utopian terms. On this vision, the NHS would function as a utopian enclave prefiguring an idealised non-capitalist future. This commonsense of post-war medicine was fatally destabilised by fiscal crisis and social critique in the 1970s. Influential comme
The practice of transplantation of vital organs from "brain-dead" donors is in a state of theoretical disarray. Although the law and prevailing medical ethics treat patients diagnosed as having irreversible total brain failure as dead, scholars have increasingly challenged the established rationale for regarding these patients as dead. To understand the ethical situation that we now face, it is helpful to revisit the writings of the philosopher Hans Jonas, who forcefully challenged the emerging effort to redefine death in the late 1960s.
This article tackles the current deficit in the supply of cadaveric organs by addressing the family veto in organ donation. The authors believe that the family veto matters—ethically as well as practically—and that policies that completely disregard the views of the family in this decision are likely to be counterproductive. Instead, this paper proposes to engage directly with the most important reasons why families often object to the removal of the organs of a loved one who has signed up to the donor registry—notably a failure to understand fully and deliberate on the information and a reluctance to deal with this sort of decision at an emotionally distressing time. To accommodate these concerns it is proposed to separate radically the process of information, deliberation and agreement about the harvesting of a potential donor's organs from the event of death and bereavement through a scheme of advance commitment.
This short paper for one of the world's leading bioethics journals introduces readers to medical tourism - the travel of patients from their home country to another for the primary purpose of seeking medical treatment. The paper divides medical tourism into three types: (1) Medical tourism for services illegal in both the patient's home and destination countries (e.g., organ transplant tourism); (2) Medical tourism for services that are illegal in the patient's home country but legal in the destination country (e.g., some forms of fertility tourism, euthanasia tourism, experimental drug tourism); (3) Medical tourism for services legal in both the home and destination country (e.g., traveling abroad for a heart valve or hip replacement). The paper then discusses several difficult ethical and regulatory challenges posed by each type of medical tourism.
However, further advances are under threat in the UK from inflexible laws, cumbersome licence requirements and fear of liability. Here we report a sequence of events that led to a UK clinical scientist withdrawing from participation in an international transplant research study in receipt of research ethics approval. We highlight the difficulties encountered and discuss possible solutions which, we believe, would promote legitimate research in the interest of the common good. We also contend that the current human tissue legislation should be replaced by a legal framework more responsive to the importance of scientific innovation for clinical service development in this field.
This paper explores the issue of donation of organs from deceased donors for transplantation into a specified recipient. It argues that proper account should be taken of the principles underlying the Human Tissue Act 2004, which grant the donor a form of proprietary control. Three hypothetical scenarios are then used to draw out the implications of these principles for existing regulatory policy and the common law response to excised human organs. The paper concludes that the law should be understood as recognising ownership in organs removed from living and deceased persons and as offering opposition to the prohibition of directed donation that can only be coherently removed by reform of the 2004 Act.