Organ Donation (Hansard, 28 July 1998)

§ Dr. Evan Harris (Oxford, West and Abingdon)
I beg to move, That leave be given to bring in a Bill to provide that the organs of potential donors are available for transplant on death unless the potential donor has previously indicated a wish to the contrary. There is a crisis in the country. It is a quiet crisis, but nevertheless a tragic one. It results from the mismatch between people whose lives could be saved, or indeed transformed, by the donation of organs—kidneys, for example—and the availability of organs to fulfil the demand.
The latest available Government figures show that more than 200 patients die each year on the waiting lists for liver, heart, lung or heart-lung transplants alone. That figure does not include those waiting for kidney transplants. The number has been increasing in recent years, and is almost certainly an underestimate, as many patients do not even reach the waiting lists when the supply of organs is short.
The figures for kidney donations show that, in 1997, there were 1,635 kidney transplants, but the waiting list stands at 5,732. The number of kidney transplants has fallen for three successive years. The liver transplant waiting list has risen over the past three years, and the number of cadaveric solid organ donations and donors is diminishing—that is, the number of donations of hearts, hearts and lungs, livers and kidneys. It is not clear why the number of donations is falling, but part of the reason may be improved road safety. Nevertheless, there is a problem, and I think that the House should address itself to how that problem can be solved.
It may be useful to look at the current law, which, in the case of cadaveric organ donations, is governed by the Human Tissue Act 1961. The Act allows the person defined as lawfully in possession of the patient's body after death to authorise removal of parts of the body if either the patient has formally expressed the wish for his or her body to be used in that way or, after such inquiries as may be practicable, the person in possession of the body has no reason to believe either that the deceased expressed an objection to removal or that the surviving spouse or any surviving relatives object.
There are already problems with that law, because it does not clearly define who is in lawful possession of the body. It does not state whether it is the hospital authorities, as is currently believed, or whether relatives have a greater claim. It also does not state whether, if relatives establish a greater claim, there is a pecking order in the event of disagreement about authorisation.
If relatives are lawfully in possession, they are not required to allow the organs to be used to save other people's lives; they are merely authorised to do so. If, before death, the patient expressed the wish that his or her organs should be used to save others' lives, it does not automatically follow that they will be. Similarly, if the patient did not clearly express an opinion, the relatives are asked for their opinion. Therefore, relatives have an effective veto in both circumstances.
171 That is the contracting-in system, which we use in this country. Other European countries use a contracting-out system. France introduced such a system in 1977, under which people can register as being unwilling to let their organs be used in such a way. Since 1988, when the regulations were changed, they have been able to do that by means of a computerised national register.
I think that this country should seriously consider introducing a contracting-out scheme, which could better be described as "presumed consent". There is a moral argument in favour of that. On 30 May, Professor Ian Kennedy—who, as hon. Members will know, was appointed to run the inquiry into the Bristol hospital scandal—published a paper in The Lancet on behalf of the International Forum for Transplant Ethics. That paper—of which I was unaware when I chose the long title of the Bill—clearly sets out the philosophical arguments and premises. It states that there is a moral case for changing the law regulating organ donation from a system of contracting in to presumed consent in countries that have not yet done so. That is because it is accepted that, generally speaking, such a system would increase the supply of organs for transplantation. That would improve and save lives, and would be a good measure.
In countries such as the United Kingdom that, since 1990, do not operate a system of presumed consent, the supply of organs and the gap between demand and supply has widened. Some people, such as professionals who, in this country, are split on the matter, argue that public education and measures to simplify the process of donation and retrieval could improve the supply of organs. However, the evidence suggests that that is not entirely clear and that countries that have switched to presumed consent have a better supply.
The methods in various countries are analysed in the Kennedy paper. Of the countries that are considered in that document, only the UK takes organs following the consent of the person who is lawfully in possession of the body, and that is subject to the express objection of the deceased or of the relatives if they are available. An alternative, which operates in Norway and elsewhere, is that after relatives have been informed of the intention to remove organs, irrespective of their consent, donation and retrieval take place. In Italy, that is done when it has been ascertained that the relatives do not object and in Belgium, which I shall shortly deal with in more detail, the process is carried out when the dead person has not expressed a prior objection. When that is confirmed by the relatives, consent is presumed.
People in Britain have said that the differences in the rates of organ donation between countries can be explained by religious or cultural factors, by the rate of road traffic accidents, by gun laws or by the ability of specialist teams in intensive care units better to retrieve organs for donation. According to the Kennedy paper, in Belgium, there is well-documented and convincing evidence that, in 1986, a change in law from contracting in to presumed consent—that is, contracting out—led to an increase in organ supply.
In an inter-country study, the staff of the transplantation centre in Antwerp strongly opposed the new law and retained a contracting-in policy which was accompanied by enhanced public and professional 172 education. They felt that the new scheme would damage people's willingness to donate. By contrast, in Leuven, the new law was adopted. Antwerp's organ donation rates remain unchanged despite the extra education, but in Leuven, they rose from 15 to 40 donors a year over three years. In the country as a whole, organ donation rose by 55 per cent.
There is clear evidence that moving to a presumed consent system would increase the availability of donations and would save lives. However, we must recognise that people have strong ethical and moral concerns about whether that is the appropriate way forward. Nevertheless, the case must be made for moving to a system such as presumed consent under which people have to opt out. It is not clear that relatives are any more disturbed by organs being taken by presumed consent than they are by being forced at a difficult psychological time to make that decision. The Belgian system, under which confirmation is requested of the relatives rather than the relatives being trodden on willy-nilly, is plainly an appropriate system for the Government to consider.

§ Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross)
Will my hon. Friend give way?

§ Dr. Harris
Yes.

§ Madam Speaker
Order. I am sorry, but I cannot allow an intervention in such an application.

§ Dr. Harris
I understand that, Madam Speaker, and I apologise for giving way. I should be happy to enter into correspondence, or to converse with Opposition Members or the Government on this matter because it is important to many thousands of people who are on waiting lists and to their families.
I urge the Government to consider consultation and to create a public debate on the measure so that we can move it forward.