Fatal Flaws: New Zealand's Human Tissue Act Fails to Provide an Avenue for Individuals to Give Legally Binding Informed Consent

By Howard, Jennifer J. | Washington International Law Journal, January 2013 | Go to article overview

Fatal Flaws: New Zealand's Human Tissue Act Fails to Provide an Avenue for Individuals to Give Legally Binding Informed Consent


Howard, Jennifer J., Washington International Law Journal


I. INTRODUCTION

"One person has the potential to save seven lives and enhance the quality of living for more than fifty others through organ and tissue donation."

With the impressive advances in medical technology over the last sixty years and the many miraculous ways that organs and tissues can change the lives of human beings, one might expect that individuals would be galvanized to sign up to donate organs, tissue, and blood.2 Unfortunately for the thousands of people on organ transplant waitlists across the globe, this is not the case.3 While fresh ideas and new legislation have increased transplantation rates for many developed countries around the globe, others have lagged behind.4 New Zealand's current donor rate is 8.6 per million in the population.5 This is one of the worst rates in the developed world, where the average rate among leading nations is 21.4 donors per million people. Some countries, such as Spain and Croatia, have rates above thirty donors per million people.6 This is also lower than New Zealand's rate ten years ago, which peaked at ten donors per million.7 In 2008, New Zealand passed the Human Tissue Act ("2008 Act") in an attempt to improve its donation rates. The 2008 Act lays out a definition of informed consent, provides a clear hierarchy of interested parties, and outlines how physicians and organ procurement specialists can obtain informed consent.8 Passing this legislation also served to address a major obstacle in obtaining informed consent-the objections of the family-by promoting individual autonomy.9

This comment argues that New Zealand's recent organ donor legislation will fail to meaningfully improve donor rates because it does not create an accessible means by which a citizen can declare his or her intention to donate their organs upon death. This comment further argues that to improve donor rates, the legislature should implement the part of the proposed law it contemplated but failed to pass: a national registry. While the immediate implementation of the registry was removed from the bill, it included a provision allowing for the creation of a registry in the future. The legislature's rationale for not requiring the registry at the time of the bill's passage was the high costs of implementation, as well as concerns that it would be underused.10 The legislature, however, should implement this provision and amend the law to include a required response element. When these two social structures are paired, they provide reciprocal support and help address the criticisms directed at each system when viewed in isolation.11 A required response system would dictate that all New Zealanders decide how they wish their organs to be treated upon their death. This would eliminate the legislature's anxiety about underutilization of a costly registry and maximize the resources spent creating the database.12

The 2008 Act focuses on informed consent and, as written, requires that informed consent be given "in the light of all information that a reasonable person . . . need[s] in order to give informed consent."13 Thus, to make the registered consent "informed" and subsequently binding, individuals must be educated about their decision. Moreover, required response systems are often considered a limited solution unless they involve an aggressive advertising and education campaign.14 Advertising and education are necessary to implement the registry as New Zealanders are informed about the new way to register consent and are provided enough information to make the consent firmly "informed" and binding.

Implementing these provisions highlights the two important themes of the 2008 Act: informed consent and individual autonomy.15 Under this framework, New Zealanders should have more control over their bodies and be able to make an informed decision during life that will be respected. This should ease existing pressure on families who are often leftto make an arduous decision about their loved one at a stressful and traumatic time. …

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