Friday April 15, 2016

A Gift of Life: Organ and Tissue Donation

Authored by: Andrew P. Nicol Posted in: Wills & Estates

Organ and tissue donation is one of the most powerful gifts. Donating an organ can save or prolong the recipient’s life or dramatically increase the recipient’s quality of life. Organ donation from a single person can impact the lives of up to eight people while a single tissue donation can improve the lives of up to forty people.

Unfortunately, there are fewer donors than there are people in need of a donation. According to the Government of Canada, around four thousand five hundred people are currently waiting for an organ donation. Of that number, approximately one hundred and thirty people in Nova Scotia alone require an organ donation.

Nova Scotia currently has legislation in place that allows for organ and tissue donation. The legislation is the Human Tissue Gift Act and it allows for organ and tissue donations to be made under limited circumstances. New legislation has been passed to broaden the scope of organ and tissue donation in Nova Scotia. The Human Organ and Tissue Donation Act has been passed by the legislature but has not been proclaimed as law, which means it is not in force as of yet. If it is proclaimed, it will replace the Human Tissue Gift Act. Outlined below is a comparison between the current legislation and the proposed legislation.

Requirements: Human Tissue Gift Act Human Organ and Tissue Donation Act
What can be donated? Organs but not skin, bone, blood, blood constituents, or other tissue that is replaceable by natural processes of repair Organs and tissue, which is any functional group of human cells
Age requirement? Age of majority (19) No age requirement
Mental capacity? Donor must be mentally competent to consent Donor must be able to understand the information relevant to the decision to donate and be able to appreciate the reasonably foreseeable consequences of that decision
Informed consent? Donor must make a free and informed decision Donor must be provided with information related to the donation process
Mechanism of Donation?

1. Inter Vivos:

  • Writing signed by donor specifying organ(s) for “forthwith” donation.

2. Post-Mortem:

  • Writing signed by donor specifying organ(s) for donation 
  • Orally by donor in presence of two witnesses during donor’s last illness
  • Consent of relative or other person if no reason to believe that donor would have objected

1. Inter Vivos:

  • Writing (including a personal directive) signed by donor specifying organ(s) for donation
  • Court can order donation from a donor who does not have capacity under limited circumstances

2. Post-Mortem:

  • Writing signed by donor specifying organ(s) for donation
  • Orally by donor in presence of two witnesses with contemporaneous documentation of the consent signed by the two witnesses
  • Consent of relative or other person if no reason to believe that donor would have objected
 Purpose of Donation?

1. Inter Vivos: Transplantation

2. Post-Mortem: Therapeutic, medical education, or scientific research

1. Inter Vivos: Transplantation

2. Post-Mortem: Transplantation, education, or scientific research

Pre-Death Transplantation Optimization Interventions? Not provided for in current legislation Allows for a donor to consent to medical interventions that would maximize the chances of a successful transplantation

Major Changes in Proposed Legislation:

There are several major changes in the proposed legislation that will hopefully provide individuals with greater flexibility in making organ and tissue donations. Here are those changes:

  1. A greater variety of organs and tissues can be donated.
  2. There is no limit on the age of a donor. Instead, the focus is on the capacity of the donor. This could allow minors to make donations of organs and tissue. The current legislation requires an individual to be at least nineteen.
  3. A personal directive can be used to authorize donations. This will broaden the ability to donate under the current legislation, which requires capacity for every donation. A personal directive is made while an individual has capacity but provides authority for personal care decisions to be made when that individual no longer has capacity. A personal directive can be used to provide for organ and tissue donation when that individual no longer has capacity.
  4. An individual can consent to pre-death optimization interventions, which will allow a person to consent to medical procedures to ensure the success of an organ or tissue transplantation from that individual’s body.

If you are interested in making organ donation a part of your estate planning, please contact us for assistance on how to properly document your wishes. We will ensure that the requirements of the Human Tissue Gift Act are met. Likewise, if the new Human Organ and Tissue Donation Act is proclaimed into force, we will be able to revise your current estate planning to ensure that your wishes in regards to organ and tissue donation are understood.

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