Select Page

02.- Don-dorganes / Organ donation — CHURCH OF FRANCE / États généraux de la bioéthique — Which world do we want for tomorrow? The brave new world…

02.- Don-dorganes / Organ donation — CHURCH OF FRANCE /  États généraux de la bioéthique — Which world do we want for tomorrow? The brave new world…
Advertisement

Scientific and legal elements :

Organ trans­plant prac­tices have devel­oped con­sid­er­ably since the 1950s, thanks to dis­cov­er­ies made it pos­si­ble to rem­e­dy the phe­nom­e­non of trans­plant rejec­tion. Accord­ing to the Bio­med­i­cine Agency, 5891 organ trans­plants were per­formed in 2016, of which 4937 are kid­ney or liv­er trans­plants. From 2012 to 2016, the num­ber of trans­plants increased by 17%. The vast major­i­ty of trans­plants are per­formed postmortem[1].

The law reg­u­lates the prac­tice of organ removal. On the trans­plant recip­i­en­t’s side, the oper­a­tion must have a seri­ous chance of suc­cess, not involve dis­pro­por­tion­ate risks and rep­re­sent a real pro­lon­ga­tion of life for the recipient[2]. On the donor’s side, the donor may be alive or deceased.

As regards organ dona­tion between liv­ing per­sons, bioethics laws have con­stant­ly extend­ed the cir­cle of poten­tial donors who, in all cas­es, must have the legal capac­i­ty to con­sent, in par­tic­u­lar be of legal age. In 1994, the cir­cle was lim­it­ed to the nuclear fam­i­ly: par­ents, chil­dren, sib­lings, pos­si­bly spouse. In 2004, cousins and allies joined this cir­cle, as did “any per­son pro­vid­ing proof of at least two years of liv­ing togeth­er with the recip­i­ent”. The law of 7 July 2011 went even fur­ther by includ­ing “any per­son who can prove a close and sta­ble emo­tion­al link with the recip­i­ent for at least two years”. It also autho­rized “cross-dona­tion” of organs between two donor/recipient pairs, each meet­ing the rela­tion­al con­di­tions of organ dona­tion and trans­plan­ta­tion but not compatible.

For sam­pling from a deceased per­son, the first require­ment is to ensure that the per­son is dead. The Pub­lic Health Code gen­er­al­ly requires three checks to estab­lish that a per­son with “per­sis­tent car­diac and res­pi­ra­to­ry arrest” is dead: total absence of con­scious­ness and spon­ta­neous move­ment; abo­li­tion of all brain­stem reflex­es; total absence of spon­ta­neous breathing[3]. If the per­son is on ven­ti­la­to­ry sup­port and blood flow con­tin­ues to a cer­tain degree, fur­ther tests are need­ed to ensure that the entire brain is irre­versibly destroyed[4]. How­ev­er, since a decree of August 2, 2005 (n°2005–949), the removal of a kid­ney or a liv­er can be car­ried out on per­sons rec­og­nized dead sim­ply fol­low­ing “a per­sis­tent car­diac and res­pi­ra­to­ry arrest[5]”. Since 2014, cer­tain hos­pi­tals based on the 2005 law have been per­form­ing organ removal from a deceased per­son fol­low­ing a deci­sion to lim­it or stop treatment.

Since the Health Act of 26 Jan­u­ary 2016, it is suf­fi­cient that the deceased per­son has not reg­is­tered on the Nation­al Reg­is­ter of Refusals to indi­cate his oppo­si­tion to organ removal, or that he has not explic­it­ly expressed his refusal in anoth­er form, for removal to be pos­si­ble (this is referred to as “deemed con­sent”). The doc­tor must sim­ply “inform” the rel­a­tives of the nature and pur­pose of the planned sample.

Despite the increase in trans­plants, not all requests are met. Hence the ques­tion of relax­ing the rules reg­u­lat­ing the prac­tice of organ har­vest­ing and trans­plan­ta­tion, in par­tic­u­lar the prin­ci­ples of anonymi­ty, free dona­tion and con­sent to donation[6].

Anthropological and Ethical Issues

Organ dona­tion always involves painful human sit­u­a­tions. Faced with these sit­u­a­tions of suf­fer­ing, we must fos­ter a cul­ture of giv­ing in our soci­ety. Adult cit­i­zens should also be encour­aged to explic­it­ly declare their pos­si­ble con­sent to a dona­tion and to pre­pare their fam­i­lies for it. How­ev­er, a pure­ly quan­ti­ta­tive rea­son­ing on organ needs to jus­ti­fy the exten­sion of trans­plant pos­si­bil­i­ties is too nar­row in rela­tion to the per­son­al and fam­i­ly issues involved.

The cur­rent “deemed con­sent” regime, which gov­erns organ dona­tion from a deceased per­son, is atyp­i­cal in law. It is con­trary to the Hos­pi­tal­ized Patient Char­ter, which, for ther­a­peu­tic acts, requires a pri­ori “free and informed” con­sent on the basis of “acces­si­ble and fair” infor­ma­tion. On 26 June 2014, the Euro­pean Court of Human Rights rul­ing “Petro­va v. Latvia” stat­ed: “Nation­al leg­is­la­tion which by lack of clar­i­ty makes it pos­si­ble to remove an organ from a pub­lic hos­pi­tal with­out the con­sent of the fam­i­ly vio­lates Arti­cle 8 of the Euro­pean Con­ven­tion on Human Rights on respect for pri­vate and fam­i­ly life.

Such an atyp­i­cal rule requires strength­ened safe­guards to ensure that con­sent does not become “imposed” from “pre­sumed”. In this con­text, the col­lec­tion of infor­ma­tion from fam­i­lies should be a rule, the fam­i­ly unit being the first cir­cle of sol­i­dar­i­ty. The law giv­ing the right to pub­lic med­i­cine to remove organs on the basis of pre­sumed con­sent only, with­out con­sul­ta­tion with the fam­i­ly, tends to nation­alise the body, in fla­grant con­tra­dic­tion with the patien­t’s free­dom, and with­out there being any real expres­sion of sol­i­dar­i­ty. Rather, a true dona­tion eth­ic should be encouraged[7].

Fur­ther­more, the removal of organs from a deceased per­son can be done not only for ther­a­peu­tic pur­pos­es but also for sci­en­tif­ic (research) purposes[8]. It is not respect­ful of the cit­i­zen that these dis­tinct and spe­cif­ic pur­pos­es are sub­ject to the same pro­ce­dure. If spe­cial sol­i­dar­i­ty is required from the cit­i­zen to help oth­er peo­ple, each cit­i­zen is free to refuse such or such research (as pro­vid­ed for in the Hos­pi­tal­ized Patient Char­ter for research on liv­ing patients).

Should we then ask our­selves whether we should return to the explic­it con­sent regime? At a min­i­mum, in the “deemed con­sent” regime, fam­i­ly noti­fi­ca­tion is essen­tial to ensure con­sent. Although med­ical teams are still try­ing to obtain this opin­ion, it is regret­table that the 2016 law no longer requires them to do so.

Final­ly, among liv­ing donors, the suc­ces­sive enlarge­ment of poten­tial donors could encour­age a cer­tain form of organ traf­fick­ing. On the one hand, the notion of “close and sta­ble emo­tion­al bond” is vague and dif­fi­cult to arbi­trate by the courts, a pas­sage required by law for organ trans­plant autho­riza­tion. On the oth­er hand, the pos­si­bil­i­ty of inte­grat­ing indi­vid­u­als into the “cross-dona­tion” cir­cuit risks encour­ag­ing finan­cial motivation[9]. The risk of such a drift would increase if the prin­ci­ple of free dona­tion were called into question.

Is the non-expres­sion of a refusal suf­fi­cient to char­ac­ter­ize a “gift”? To encour­age organ dona­tion, infor­ma­tion cam­paigns should be pro­mot­ed that pro­mote reg­is­tra­tion in a reg­is­ter where every­one could clear­ly express their con­sent to or oppo­si­tion to the removal of some of their organs in the event of death, in the spir­it of the “advance direc­tives” (see fact sheet on the end of life).

Feb­ru­ary 1, 2018


[1] https://www.agence-biomedecine.fr/IMG/pdf/cp_activite-greffes-organes-2016_agence-biomedecine.pdf
[2] cf. Code de la San­té Publique (CSP), arti­cle L1211‑6.
[3] CSP, arti­cle R. 1232–1.
[4] CSP, arti­cle R. 1232–2.
[5] Cf. CSP, arti­cle R. 1232–4‑1.
[6] Cf. CCNE, Dossier de presse, « Les thèmes des États généraux », fiche n°2, 18 jan­vi­er 2018.
[7] Cf. dis­cours de Benoit XVI sur le don d’organes du 7 novem­bre 2008.
[8] CSP, L1232‑1.
[9] Cf. J.-R. BINET, La réforme de la loi bioéthique. Com­men­taire et analyse de la loi du 7 juil­let 2011, Lex­is­Nex­is « Actu­al­ité », 2012. Voir aus­si J.-R. BINET, Droit de la bioéthique, LGDJ, 2017, pp. 212–235.

FEBRUARY 8 — SAINT BAKHITA

ADLAUDATOSI INTEGRAL ECOLOGY FORUM WEBINARS

FABRICE HADJADJ — VIRTUAL AND REAL WORLDS: HOW TO INHABIT THE DEVASTATED EARTH?

OUR MISSION:

THE PURPOSE IS TO SHARE BEST PRACTICES AND PROMOTE ACTIONS AGAINST HUMAN TRAFFICKING.

WE MAKE AVAILABLE TO YOU GUIDES AND RESEARCH ON TRAFFICKING IN HUMAN BEINGS FROM THE MOST RECOGNISED LEGAL AND OPERATIONAL ACTORS.

AN EXAMPLE FOR CATHOLIC ENTITIES TO FOLLOW: ERADICATE MODERN SLAVERY IN ALL ITS FORMS FROM THE OPERATIONS AND SUPPLY CHAINS OF CATHOLIC ENTITIES IN AUSTRALIA — PROPOSAL OF ACTION PLAN – MODERN SLAVERY RISK MANAGEMENT PROGRAM FROM 2021 TO 30 JUNE 2023

HELP OUR ORGANIZATION BY MAKING A DONATION TODAY!

Adlaudatosi Webinars Videos VIMEO

Videos of the speakers’ interventions adlaudatosi VIMEO

Adlaudatosi Webinars Videos YOUTUBE

Religious Helping Trafficking Victims along the Road of Recovery (ON-DEMAND VIDEO WEBINAR)

Religious Working In International Advocacy Against Human Trafficking (ON-DEMAND VIDEO WEBINAR)

Impact Of Human Trafficking On Health: Trauma (ON-DEMAND VIDEO WEBINAR)

Impact Of Human Trafficking On Health: Healing (ON-DEMAND VIDEO WEBINAR)

International Prosecution Of Human Trafficking — Where Are We Now? (ON-DEMAND VIDEO WEBINAR)

International Prosecution Of Human Trafficking — What can be done? (ON-DEMAND VIDEO WEBINAR)

International Prosecution Of Human Trafficking — Best Practices (ON-DEMAND VIDEO WEBINAR)

Demand As Root Cause For Human Trafficking – Sex Trafficking & Prostitution

Human Trafficking — Interview with Prof. Michel Veuthey, Order of Malta — 44th UN Human Right Council 2020

POPE’S PAYER INTENTION FOR FEBRUARY 2020: Hear the cries of migrants victims of human trafficking

FRANCE — BLOG DU COLLECTIF “CONTRE LA TRAITE DES ÊTRES HUMAINS”

Church on the frontlines in fight against human trafficking

Holy See — PUBLICATION OF PASTORAL ORIENTATIONS ON HUMAN TRAFFICKING 2019

RIGHT TO LIFE AND HUMAN DIGNITY GUIDEBOOK

Catholic social teaching

Doctrine sociale de l’Église catholique

Register to our series of webinars adlaudatosi on Human Trafficking

You have successfully registered !