Legality of Organ Donation - Analysis

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CHAPTER I
THE PROBLEM AND ITS SETTING

INTRODUCTION
Progress in medical science and technology has contributed to the growth of kidney and other organ transplantations around the world. Nevertheless, the gap between the supply and demand for transplantable organs continues to widen. Chronic shortage of human organs for transplantation is one of the most pressing health policy issues in many developed countries. In recent years, the persistent scarcity of organs for transplantation has invigorated the controversy about the determinants of organ donation rates and the magnitude of their effects. In spite of the media campaigns and other attempts to promote donation, the organs supply cannot keep up with the demand, and the number of patients on waiting lists has been growing steadily during the last decade. The Philippines is no exception to the dilemma on the shortage of transplantable human organs and there is no clear cut policy yet on how the shortage could be swiftly addressed. The Department of Health (DoH) is currently pushing for "cadaveric organ donation" and this perhaps, might lessen the gap between the supply and demand for transplantable human organs. But how can one tinker freely with the body of a deceased person? Are there laws in the country which give blanket authority to hospital institutions or to a medical practitioner in harvesting transplantable human organs from a deceased person even without a document or a health card indicating that the deceased is a willing donor? The answer is a resounding ‘None’. The Philippines has yet to come up with a law regarding ‘presumed consent’ unlike in many European countries, particularly Spain, which for so long a time has been implementing their own and unique versions of ‘presumed consent laws’. Under presumed consent legislation, a deceased individual is classified as a potential donor in absence of explicit opposition to donation before death. With the positive effect of presumed consent laws vis-a-vis organ donation rates on countries which enforced such, it is high time that the Philippines should follow suit and come up with its own version of presumed consent laws. Senator Richard Gordon took the initiative in making the battlecry for the passage of a presumed consent law as he was astounded by the staggering figures of the National Kidney Transplant Institute (NKTI). The Institute reported that the usual Filipino kidney transplants performed thereat have gone down by 20% while the demand for kidney donation is going up by ten (10) percent annually.

BACKGROUND OF THE STUDY
Global Reality. Waiting for a suitable donor organ to become available may take one week to many months. Unfortunately, the latter is more often the case. This waiting time has been described by many transplant recipients and their families as the most difficult part of the transplant process. Fear and anxiety are normal reactions during this period of uncertainty. In Europe, the average waiting time is three years and is expected to last for ten years or until 2010. With 120,000 patients on chronic dialysis and 40,000 patients waiting in line for a kidney in Western Europe alone, about 15 to 30 % of these patients will die annually because of organ shortages. Every day in the United States, 17 people die waiting for an organ transplant. The number of people in the waiting list for an organ has more than tripled over the last ten years; at the same time, the number of donors has remained relatively stagnant. In the United Kingdom, the active transplant waiting list is increasing by about 8% a year, and the ageing population and increasing incidence of Type 2 diabetes are likely to exacerbate the shortage of available organs. In 2006, the UK Organ Donation Task Force was established with the task of identifying barriers to donation and making recommendations for increasing organ donation and procurement within the current legal framework. In the U.S., Great...
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