• A competent person “opts-in” through a will or an oral expression to be a donor upon their death
• An opt-out system requires people to place their name on a register before their deaths if they prefer not to donate their organs
Donation of organs and tissues make available a relatively scarce resource that has the potential to improve the health and life of recipients. Following this scarcity, the need for more organs for transplantation is pressing and countries are coming up with systems (opt-in and opt-out) in which they can adopt to encourage the donation of organs and tissues. These systems provide for both the living and the deceased donors.
An opt-in system relies on individuals to altruistically donate organs voluntarily; it is more of an explicit statement of consent by a potential donor that is recorded on a centralised computer register to which all relevant hospital units could access. This is done while the potential donor is still alive and once this statement is made, it cannot be “lost”, nor can it fail to be found simply because the donor did not have it on his or her person at the time of death.
An opt-out system also referred to as “presumed consent” system, requires people to place their name on an opt-out register before their deaths if they prefer not to donate their organs. This system enables organs to be removed automatically after death, subject to expressions to the contrary. But of course, there are a lot of medical factors to consider, for example, whether the deceased is an eligible donor.
Spain, which has remained the world leader in donations and transplants for the last 27 years, uses the opt-out system donation. In the year 2018, Spain hit 48 donors per million population, she recorded a total of 2,243 donations which enabled 5,314 transplants to be conducted (Spain National Transplant Organization, 2018). In the quest to increase donations, countries that are using other systems are moving to change their laws to adopt the opt-out system.
But is this really it? Changing the system and just like that expect to record a ‘48 donors per million population statistic’? There has to be more to it. Otherwise, all countries that have adopted the opt-out system would be on the same level as Spain and the world would have solved the problem of organ shortage already.
From the year 2020, both Scotland and England will shift from their current organ donation system, which is an opt-in system, to adopt the opt-out system. This decision was not solely influenced by the fact that the number of patients waiting for transplants is high and keeps rising but largely because about 80 per cent of the UK population supports organ donation but only 37 per cent of the population does the actual donation (National Health Service Blood and Transplant).
Here in Kenya, by virtue of section 81 (1) of the Health Act 2017 (the Act), the adopted system of organ donation is opt-in. A competent person “opts-in”, that is, through a will or an oral expression in the presence of at least two competent witnesses, a person opts to be a donor upon their death. This is more like registering one's consent to become a donor in a centralized computer register, only that here, it is in a will. Maybe this is one of the reasons we are getting it wrong, maybe we should have this register in place and shift from expressing donation wishes in wills.
Further, the Act provides that in absence of an expression to donate organs after death, the spouse or spouses, elder child, parent, guardian, eldest brother or sister of that person, following that specific order, may, after that person's death, donate the body or any specific tissue of that person.
This system, the opt-in system, establishes the consent of the potential donor, and relatives or other relevant people are expected to respect this wish. The relatives do not have any right to veto or overrule the deceased. This is however not always the case, I mean, how many times have wills been challenged in courts of law? Relatives are always opposing decisions of their loved ones after death and given that organ donation is yet to be given the right level of awareness in the society, more opposition founded on religion and culture is warranted.
Now the question becomes, would moving from an opt-in system in anticipation that family members would object to the donation and adopt the opt-out system be the answer for organ shortage in Kenya? This is debatable because the opt-out system can be argued to be a threat to individual autonomy (right to choose what happens to one’s body after death) which would, in turn, be seen to violate important human rights. It would also be seen as a way of the government bestowing on itself the right to distribute organs after death as it deems fit.
Basically, the opt-out system, when not well managed could lead to a paradoxical decline in organ availability because of the questionable moral implications that would arise. Most probably the public would reduce its confidence in the transplant system. Arguably, the system could even result in organs being taken from those who had not yet managed to register an objection against donating, perhaps because they were simply busy or disorganised.
And so there is more to organ donation than the system adopted, there is more to just expressing ones wishes to be a donor or expressing wishes against becoming a donor.
Even as this area continues to develop and take shape in Kenya, even as we continue to formulate proper laws to govern it, it is vital to note that, just as it is important to shift our system of donation, it is of equal importance to have a comprehensive procurement system and a robust, transparent organisational infrastructure to oversee a successful process, one that Kenyans will have faith and trust in.
Elizabeth is an Advocate of the High Court. Associate at Ibrahim Yakub & Associates Advocates. She is passionate about Medical Law and Ethics most especially the ethics of both living and deceased organ donation and transplantation.