Donors' rights must be guarded / Greater legal protection required to ensure organs given up willingly

Donors' rights must be guarded / Greater legal protection required to ensure organs given up willingly
Hiroshi Sakagami and Akemi Ari / Yomiuri Shimbun Staff Writers

In the 10 years since the Organ Transplant Law was enforced in October 1997, organ donations from the brain dead totaled a mere 62. But while organ transplants from the brain dead are carried out infrequently, transplants involving living donors have been increasing, giving rise to new problems.

Unlike organ transplants from people whose cerebral or cardiac functions have stopped, living donors risk impairing their mental capacity or bodily functions.

The Yomiuri Shimbun carried a series on organ transplantation from Oct. 12 to 20. After reporting on the case of a woman who became a living donor against her will, the paper was contacted by many readers, including many who said they had had similar experiences.

One reader, a 38-year-old woman from Tokyo, said a doctor at a hospital where her father was diagnosed with fulminant hepatitis failure said her father required a liver transplant from a living donor. The doctor then spoke with the woman's elder sister whose blood type matched her father's, intimating that it would be inhumane not to donate one's liver. The woman said that when her sister said she wanted to think about it, the doctor urged her to decide straightaway, saying, "Decide now, there should be an examination prior to donation."

Eventually, the woman's sister decided not to donate her liver, after taking into consideration her father's wish not to extend his life at the cost of damaging the health of his daughter.

As this example showed, medical practitioners tend to give priority to saving a patient's life and consider it natural to do so, thereby putting pressure on family members to donate an organ.

However, surgery constitutes an infliction of injury if it is not for medical treatment. Surgeons are exempted from responsibility for inflicting an injury only when the following three requirements are met:

-- The purpose is medical treatment.

-- The validity of the medical treatment is proved.

-- The patient's consent is obtained.

"It's necessary to more thoroughly examine the issue of transplants from living donors," said Kenichi Nakayama, professor emeritus of Kyoto University. "A scalpel must only be used on a healthy body in exceptional circumstances because we're not treating organ donors."

Receiving the donor's voluntary consent should be an indispensable condition for organ donation.

However, prior to July, the Organ Transplant Law did not include regulations to protect the rights of living donors. That month, the Health, Labor and Welfare Ministry incorporated rules on transplants from living donors in the application guideline of the law. The new rules state, "transplants will be conducted only as an exceptional measure when it is regarded as unavoidable" and "the donor's will should be confirmed by a third party capable of an appropriate judgment."

But the guidelines have no legal binding power. Therefore, there could still arise a case in which a family member agrees, though reluctantly, to donate an organ out of a desire to meet the expectations of others.

The Japan Society for Transplantation says psychiatrists and other experts currently confirm the will of each donor. But it is not easy to ascertain a person's real intention.

The problem of how to ensure medical treatment for donors after they donate organs also has not been addressed. According to a survey by the Japan Liver Transplantation Society, one in 30 donors develops a major complication that requires a further operation.

The issue of who should bear the cost of medical examinations and treatment if complications arise as well as the issue of compensation if a donor dies or is disabled has not been fully clarified. In many cases, donors themselves have paid such expenses. The Japan Society for Transplantation is considering introducing donor indemnity insurance, as has already been adopted for bone-marrow transplants.

A system should also be established to protect the human rights of donors, such as respecting the individual donor's will and guaranteeing medical treatment for them.

Economic effects caused by delays in providing medical treatment requiring organ transplants also should not be overlooked.

The number of patients undergoing artificial dialysis has been increasing by about 10,000 a year in recent years, hitting about 264,000 at the end of last year. Dialysis costs more than 5 million yen per head annually, at a total cost of more than 1.3 trillion yen a year, a sum that accounts for 4 percent of the nation's total medical expenses. This is a major drag on the government's medical spending.

Kidney transplants, on the other hand, cost 5.55 million yen for the initial year, including the operation fee, and 1 million yen to 1.8 million yen annually after that, including expenses for immunosuppressing agents.

Many patients are forced to quit their jobs to visit a hospital three days a week to receive several hours of dialysis. Prof. Satoshi Teraoka of Tokyo Women's Medical University said, "If more dialysis patients could return to work after undergoing a kidney transplant, it would prove advantageous economically."

In the case of heart transplantation, too, the number of donors is extremely small because the Organ Transplant Law requires the consent of the brain dead donor and their family. The waiting period for a transplant now averages two years.

In many cases patients waiting for a transplant need to be equipped with an external auxiliary artificial heart. The cost for this tops 80 million yen for the two-year waiting period.

If a patient receives a heart transplant, it costs 11.8 million yen in the initial year and about 3 million yen annually after that, including drug expenses.

Given these figures, organ transplantation offers a big advantage in terms of medical costs and patients' employment. But the Diet has put a hold on the debate of a bill to revise the Organ Transplant Law that would ease the conditions for organ donations from the brain dead. Discussion must be jump-started to ensure transplants are properly carried out.

(Nov. 13, 2007)