Alberta's New Organ and Tissue Donation Law: The Human Tissue and Organ Donation Act
Nelson, Erin, Health Law Review
In 2006, Alberta passed new legislation concerning donation of human organs and tissues. According to the Government of Alberta, the intent of the legislation is to "broaden the scope of and modernize" Alberta's 33-year-old legislation, the Human Tissue Gift Act. (1) In introducing the Bill to the Alberta Legislature, MLA Dave Rodney outlined a number of modifications that will flow from the new statute. These include the following', changes to definitions within the legislation (aimed at both modernizing the terminology and to reflect some of the other changes to the HTGA); provisions that permit living donation by minors in some circumstances; the creation of independent assessment committees designed to protect the interests of minors who are living donors; changes to consent requirements; provisions directing mandatory consideration for donation; provisions respecting quality assurance mechanisms, including registries of personnel and facilities; specific provisions respecting confidentiality of health information; and changes to fines for contraventions of the Act.
The Human Tissue and Organ Donation Act (2) was proclaimed into force on August 1, 2009. While some of the modifications made by the Act are quite minor, some have the potential to effect broader change in human organ and tissue donation practice. Will the Act achieve its aims? Are we in for significant change on the organ and tissue donation front?
In this brief article, I examine the salient aspects of the Human Tissue and Organ Donation Act. First, I discuss the changes that relate to cadaveric donation, including consent and mandatory consideration for donation. Second, I focus on the changes related to living donation, including donation by minors and independent assessment committees. Finally, I consider modifications that are relevant to both cadaveric and living donation: quality assurance/registry, confidentiality, and fines for contravention of the Act.
1. Deceased donors
Consent and Organ Supply
A perennial and well-documented problem in organ transplantation is the fact that need for organs far outpaces the supply of organs available for transplantation. In 2008, 4,380 Canadians were awaiting transplants, and 215 died while waiting. (3) Although statistics on tissue donation are not kept in a similar manner, recent research suggests a significant (and growing) unmet demand. (4) Governments seem to continually look for ways to increase the supply of organs, and often zero in on law and practice around consent as a perceived barrier to increased participation in organ donation programs. (5) Alberta's new law is no exception in this respect, in that a clearly articulated aim of the government in advancing the new legislation was to "strengthen the donation program" by ensuring that the wishes of a deceased potential donor in favour of donation will be honored, even where those wishes conflict with the express desires of the next of kin. According to Dave Rodney, the notion that the consent of the potential donor should take precedence over any conflicting wishes of the family "represents a change in current practice. Clinicians generally require consent from next of kin even when the known wishes of the deceased were indicated by a donor card or other document."
Mr. Rodney is quite correct that current practice does not respect the consent of a deceased potential donor if the next of kin does not also provide consent for organ donation. Most human organ procurement agencies take the view that donor consent, on its own, is not sufficient to permit the removal of organs from a potential donor's body. (6) But it is questionable whether a change to the legislation was needed in order to permit agencies (such as HOPE, the Human Organ Procurement Exchange agency in Alberta) to rely on the deceased's signed donor card.
Section 4 of the HTGA provides:
4(1) Any adult person may consent,
(a) in a writing signed by the person at any time, or
(b) orally in the presence of at least 2 witnesses during the person's last illness, that the person's body or the part or parts of it specified in the consent be used after the person's death for therapeutic purposes, medical education or scientific research. …