Jennifer A. Chandler describes some of the ethical and legal challenges surrounding organ donation following medical assistance in dying.
Today, it is medically possible to donate organs following death brought about by medical assistance in dying. This currently happens in countries like Belgium and the Netherlands. People with neurodegenerative conditions like amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig’s disease, or multiple sclerosis (MS) are eligible to donate organs. Those with cancer, however, are not eligible because of risks to recipients.
In Canada, people with neurodegenerative conditions who satisfy the legal eligibility criteria for assisted dying may also meet the medical eligibility criteria for organ donation. However, this possibility raises novel ethical, legal, and policy issues that must be carefully considered. The following four hypothetical cases illustrate some of these issues.
CASE 1 – A patient seeks assisted dying and wants to donate to a family member.
Some provinces allow people to direct their organ donations to relatives after they die. Some patients who choose assisted dying may derive some comfort from being able to help a family member in this way. There is the risk, however, that patients may feel pressured to seek assisted dying, in part, to benefit a sick relative.
CASE 2 – A family member is asked to consent to cornea donation for a loved one who passed away through assisted dying. The patient was not asked about this before his death because he was not registered as an organ donor, and nobody wanted to burden him with the decision.
It seems inappropriate not to ask patients about organ donation prior to death, when they are capable of speaking for themselves. Patients seeking medical assistance in dying may assume they are ineligible to donate, or might not have thought of the possibility. If they are not asked about donation, they will have been denied the opportunity for psychological benefit from donation. On the other hand, the request for organ donation could be unwelcome and patients may feel pressured to donate. Furthermore, if patients are asked to donate and agree to this, they may feel unable to change their mind about assisted dying knowing that recipients are waiting.
CASE 3 – A transplant surgeon has a conscientious objection to assisted dying. She refuses to remove organs after death by assisted dying and refuses to transplant any organs obtained in this way.
The Supreme Court of Canada stated that nothing in its decision in Carter obliges physicians to provide assisted dying. However, does this mean physicians should also be able to refuse downstream medical interventions such as organ transplantation? This could potentially lead to a form of “complicity creep,” whereby more and more tenuously linked interventions fall within the scope of conscientious objection to assisted dying. This could cause serious harm if alternate physicians have not been identified in advance.
CASE 4 – A patient has a religious objection to assisted dying and does not want to receive a transplant from someone who dies under these conditions. She realizes, however, that she cannot escape all benefits from assisted dying, since she will move up the waiting list more swiftly if those ahead of her receive organs donated by people who die in this way.
Usually, organ recipients are only given information about their donors when the information is related to some medical risk to themselves. This information is provided so that recipients may choose to forego a transplant if this additional medical risk is of concern. A decision to continue this policy, and not disclose whether the donor died through assisted dying, could benefit potential recipients by making it easier for them to accept life-saving transplants. If such information were available, however, recipients may feel obliged to seek it out and might feel guilty later if they did not, or if they proceeded knowing that their transplants were made possible by medical assistance in dying.
As these four cases illustrate, the integration of assisted dying and organ donation raises questions about how best to protect the autonomy and other interests of patients seeking assisted dying, transplant recipients, and physicians.
Currently, the number of cases of assisted dying in Canada is very low. There is also little data available about the motivations, characteristics, and vulnerabilities of patients seeking assisted dying. Every effort should be made to collect this information. As well, information should be collected about the perspectives of patients who ask or are asked about organ donation following assisted dying. This information will be essential to inform law and policy to address the challenges described here.
Jennifer A. Chandler is the Bertram Loeb Research Chair and Professor, Centre for Health Law, Policy and Ethics, Faculty of Law, University of Ottawa. @jnfrchandler
Acknowledgments: This author thanks the Canadian National Transplant Research Program and the Bertram Loeb Organ and Tissue Donation Institute for financial support of her research on organ donation policy in Canada.