Last year, an estimated 12 to 15 registered organ donors and candidates for donation had their decision thwarted by relatives. This was due to the so-called family veto, which enables family members to prevent organ donation even if the deceased person had registered to be an organ donor.
Currently, if an individual decides they don’t want to be a donor, they can register an objection that has legal protection. But the decision to be a potential donor, as registered on the Australian Organ Donation Register, has no such protection.
The family veto can prevent a donation request from proceeding for almost any reason, no matter how emotionally clouded, or even where it is based on religious or philosophical beliefs the deceased would not have agreed with.
In the words of the National Health and Medical Research Council guidelines:
If the objection is unlikely to be resolved or the prospect of organ and tissue donation is causing significant distress to close family members, the process of donation should be abandoned, despite the previous consent of the deceased.
Legally, the Human Tissue Acts in the various states and territories empower doctors to proceed with donation where there is written consent (as on the Australian Organ Donation Register form).
This means doctors can proceed with organ donation despite the family’s wishes, however most wouldn’t go against the family veto for fear of public backlash. So should we scrap the family veto?
Arguments against the family veto
One argument for removing the family veto is that individuals have a right to decide what happens to their body after they lose mental capacity or die. Generally, the law recognises such rights.
For instance, an individual’s decisions about how to distribute their property after their death – as expressed in a will – are legally protected (with limited exceptions). Similarly, an individual can decide what will happen to their bodies after they lose mental capacity through an Advance Care Directive. Individuals can also leave those decisions to others they trust, including family members.
If individuals have a moral entitlement to leave their estate to benefit others of their choosing, why should they not also have the right to leave their bodies to save the lives of others, where it can be used?
A second argument against the family veto concerns its consequences. Namely, a decision to prevent a donation from proceeding, by using the veto, significantly affects a larger group of people – those who will die or continue to suffer in the absence of transplantable organs. Their interests must be weighed in considering the moral legitimacy of the family veto.
Reasons for retaining the veto
It is often said that retaining the veto is necessary to avoid causing additional distress to family members at a difficult time.
However, following an individual’s Advance Care Directive may lead to their death. Or a person’s will might distribute all of their property to the local animal shelter, instead of their relatives. This may cause distress to family members, but that distress does not trump their right to decide.
Second, there is no reason why distress caused to a candidate-donor’s family should always be privileged over the distress felt by those who need an organ, or their families. The interest of candidate organ-recipients in not dying is far more morally significant than the interests that family members have in avoiding additional distress.
Further, it is possible that the need to make the difficult decision actually contributes to family distress, and it may be less stressful if donation proceeded in accordance with a deceased person’s expressed wishes.
It may also be argued that, in practice, only a very small number of organs end up being wasted as a result of the family veto. As mentioned earlier, roughly 12 to 15 individuals last year had their donation wishes vetoed.
However, because each donor can provide organs or tissue that benefit up to ten other people, potentially 150 people annually are denied life-saving or life-enhancing transplantation as a result of the veto. In any case, practices that result in more deaths than necessary are repugnant in the absence of some compelling moral reason.
A final argument for retaining the veto is that without it, the supply of organs would fall. Usually this is explained on the basis that people may become fearful and public trust in the donation system would be undermined if the family veto were removed. If this is true, the veto should be retained.
However, it is speculative. There is no evidence available to settle the dispute, because no country has removed the veto in circumstances where the patient had signed up to be an organ donor. It may be equally plausible that removing the veto could increase donation rates, since offering legal protection for donation decisions may encourage more people to sign up.
The family veto is morally repugnant unless removing it would result in a decrease in the supply of transplantable organs. The absence of empirical evidence currently makes it impossible to settle this dispute.
Australia should trial the removal of the family veto in one or more state or territory. If properly monitored, it should be possible to discern whether removing the veto has a negative impact on donation levels. The results of such a trial could then inform decisions about whether the veto should be removed nationwide.