Review of The Human Tissue Act and Proposed New Zealand Law Change to Organ Donor Rules

23 March 2006

The New Zealand Parliament is set to debate a change in the law that would stop anyone overturning an organ donors' wishes.

The Human Tissue (Organ Donation) Amendment Bill 2006 sponsored by National Party MP Dr Jackie Blue was drawn out of the ballot today after being submitted just three weeks ago.

New Zealand has the lowest donor rate in the Western World. Recently released figures show that in 2005 our donor rate continued to fall, down to an all time low of 29. The Members Bill highlights several problems associated with the current system that is aligned with the issuing/renewal of driving licences:

All non-drivers, including those under age 15, are excluded.

Changing a driver licence before its expiry date in order to amend donor details costs $31.10.

There is no option on a driver licence to specify organs a person may wish to donate. This may deter some people who may wish to, for example, donate kidneys but not eyes.

A family can override a wish to be a donor, as the statement on a driver licence is indicative only and not legally binding.

There are no education programmes encouraging people to donate their organs that compare with the Land Transport Safety Authority (LTSA) campaigns against drink-driving and speeding.

This Bill therefore seeks to amend the Human Tissue Act 1964 to

(a)establish a register on which people, not just those with a driver licence, can register their legally binding wish to be an organ donor or state their objection to being an organ donor:

(b)provide for public information campaigns encouraging registration as a donor:

(c)provide a means of transferring existing donor information on the LTSA database to the register:

(d)provide a mechanism for specifying organs for donation (therapeutic purposes), or the use to which organs may be put (anatomical examination), and provide that the wishes of those on the register cannot be over-ridden.

Meanwhile three cabinet papers dealing with the review of the human tissue act review (which includes organ donation) have been made available on the Ministry of Health website.

Paper One is an overview paper which provides the rationale for the proposed new regulatory framework for the collection, use, retention and disposal of human tissue, including the proposed scope and structure of new legislation. It also proposes the inclusion of a set of overarching principles in new Human Tissue legislation to guide its interpretation and implementation.

Paper Two sets out options for a consent framework for organ/tissue donation from deceased people and includes proposals for who can give consent, what requires consent, and how that consent should be recorded.

Paper Three sets out proposals for a new regulatory framework for the oversight and management of the therapeutic and non-therapeutic uses of human tissue and proposes that human tissue-based therapeutic products be regulated under the trans-Tasman Joint Therapeutic Products Agency and regulatory scheme and the non-therapeutic use of tissue through new Human Tissue legislation. It also addresses the import and export of human tissue, requirements in relation to the sale and purchase of human tissue, and a mechanism to control activities that raise ethical, cultural and spiritual implications and/or health and safety issues.

The papers may be accessed by way of the following link.

Meanwhile Organ Donation New Zealand is considering whether or not to use non-heart-beating donors in a bid to improve low donor rates. At present, only patients certified as brain-dead who can no longer breathe for themselves can become organ donors. Unlike brain-dead patients whose organs are retrieved while the heart is still beating, non-heart-beating donors are first allowed to die before their organs are removed. Australia and Britain have been using this category of donors for some time, particularly for kidney transplants. Livers and lungs can also be transplanted. The main disadvantage of this category is that the organs could be of lower quality, reducing survival and function rates.


Commentary from The Nathaniel Centre

The donation of one's body organs after death is a generous gesture and not something that anyone should feel obliged to do. In the Catholic tradition it is often referred to as an enduring gift.

Respect for a person's autonomy is a fundamental principle of healthcare delivery in New Zealand. There should, therefore, always be a strong presumption in favour of respecting a person's wishes to become a donor. When a person's wishes are unknown, then a person's close family may make a proxy decision based on what they believe the person would have wanted. When a person has made it known that they do not wish to become a donor, this wish must always be respected and never over-ridden.

The transfer of organs from a person in ICU is always preceded by a decision to withhold, to withdraw or to cease treatment/life-sustaining interventions. A person's family/next of kin are an integral part of this decision and are thereby drawn intimately into the process of organ donation. In implementing the changes suggested above, account must be taken of the need to keep the dying person's family closely involved and to support them in their grief. While knowledge that the death of a loved one will assist others to live can be a comforting reality for a grieving family, the process of donating organs also has a significant impact on the process of dying and the planning of a funeral.

Because the present New Zealand system of consent is not currently legally binding, health professionals are in the habit of consulting the family/next of kin of willing donors before any decision is implemented. This process provides a strong impetus for health professionals to work closely with, and be sensitive to, the complex grief needs of a person's loved ones. There may not be the same incentive to work with and support such persons in a process which makes a donor's wishes legally binding.

A possible way of resolving this would be to provide resources for independent personnel, specially trained in grief and trauma and with specialised knowledge about organ donation, to manage the process around organ donation. The advantage of such personnel, apart from being specially trained, is that they will not be not involved in decisions around care and treatment options, and nor will they be involved in the actual transplantation process.

It has also been suggested that a significant factor in the shortage of organ donors in New Zealand is the relative lack of availability of ICU beds compared to other Western countries. The shortage of beds results in stricter admission procedures. Many patients with a poor prognosis of survival, but who could potentially become organ donors, are then denied the intensive care necessary for successful organ retrieval. The resolution of this problem requires political will-power.

The Nathaniel Centre supports the move to increase levels of public awareness and education around organ donation. This will hopefully mean that more and more people will have discussed their decision to be a donor with family well before the actual circumstances in which their decision needs to be effected.


Press Release: Give Life, Friday, 24 February 2006.
Press Release: Give Life, Wednesday, 22 March 2006.
Human Tissue (Organ Donation) Amendment Bill, Explanatory Note
Ministry of Health, 21 February 2006

Links to The Nathaniel Report articles:

Organ Donation - an enduring gift
Making a Life Saving Difference - Organ Donation and Consent
Letter from a Kidney Donor
My Experience of Renal Failure and its Treatment