The Development of Property Rights over Cadaveric Tissues and Organs: Legal Obstructions to the Procurement of Organs in an 'Opt Out' System of Organ Donation in Australia and New Zealand
New Zealand Universities Law Review, 2017
29 Pages Posted: 23 May 2018
Date Written: December 1, 2017
Discussions and decisions relating to cadaveric organ donation after a person’s death are challenging and complex for all involved: the potential donor, family members and medical teams. Australia and New Zealand have significant shortages of transplantable organs under their “opt-in” systems of donation in which organs are procured only from persons who had consented before their death to donate.
Although a majority of Australians and New Zealanders agree with organ donation, only a minority of Australians register to become donors and consent to donate. New Zealand does not have an organ donor register.
Organ procurement may increase under an “opt-out” system of donation. Such a system of donation “presumes” that every person has consented to donate their organs after death unless they have declared their objection, and their next of kin would be unable to veto organ procurement.
This system of organ donation is dependent on a long-held legal principle that no property exists in a human corpse (“no property” principle). But an evolving body of case law, beginning with the seminal case of Doodeward v Spence in 1908, has demonstrated that tissue extracted after death and preserved by “work and skill” acquires attributes of property. This “work and skill” principle is readily applied to organs procured after death. We contend that organ procurement after death should be subject to the agreement or refusal of the next of kin.
Despite widespread societal support, legislative reform is improbable. In such circumstances, the common law can be more effective. We argue that common law recognition of property rights of the next of kin in relation of ownership of organs and tissues should be incorporated into current legislation. This would provide greater clarity and certainty to the existing way in which organs are procured. Alternatively, if the political attitude shifts to favour an “opt-out” system of donation, which presumes that all deceased persons agree to donate their organs after death, the current legislation should acknowledge the common law property rights of the next of kin. We suggest that if an “opt-out” system of organ procurement is introduced, express consent of the next of kin should be sought, and they should be recognised as having property rights in the organs and tissues of their deceased.
Keywords: organ donation, next of kin, opt out
Suggested Citation: Suggested Citation