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Guidelines and Policies

A code of practice for the diagnosis of brain stem death: including guidelines for the identification and management of potential organ and tissue donors UK
Department of Health

Deceased Organ and Tissue Donation – Consent and Other Procedural Requirements NSW
This 2013 policy directive outlines the requirements of the Human Tissue Act 1983 for consent for deceased organ and tissue donation and incorporates procedures for health facilities to follow in relation to the process of coordination and retrieval of organs and tissue from deceased donors in NSW.

Increasing Organ Donation in NSW: Government Plan 2012 NSW
This publication provides the policy framework for increasing rates of organ donation in NSW.

Making a Decision about Organ and Tissue Donation after Death [PDF]    Cth
NHMRC
This booklet is derived from Organ and Tissue Donation after Death, for Transplantation: Guidelines for Ethical Practice for Health Professionals, and aims to help people think through some ethical issues and make informed decisions about organ and tissue donation after death.

Organ donation after cardiac death NSW
NSW Health
The guideline describes the requirements and process for organ donation after cardiac death in NSW.

Organ and tissue donation after death, for transplantation: Guidelines for ethical practice for health professionals [PDF]   Cth
NHMRC
These guidelines outline ethical principles for health professionals involved in donation after death and provide guidance on how these principles can be put into practice.

Organ Transplantation From Deceased Donors: Eligibility & Allocation Protocols NSW
NSW Health
This policy provides the framework for the implementation in NSW of the Transplantation Society of Australia and New Zealand: Organ Transplantation from Deceased Donors: A Consensus Statement on Eligibility Criteria and Allocation Protocols. The Consensus Statement Protocols relate to the referral, assessment and listing of patients awaiting solid organ transplantation in NSW and the allocation of deceased donor organs to patients on transplantation waiting lists within Australia.

Questions and Answers on Organ Donation after Death [PDF]    All
NHMRC
Question and Answer Sheet for people interested in donating organs after death.

Legislation

Human Tissue Act 1983 (NSW) Part 4 NSW
Regulates the donation of blood, ova, sperm and foetal tissue by adults and children after death and the requirements of consent.

Toolkits and Protocols

Death and Organ Donation
Australian and New Zealand Intensive Care Society

National Guidelines for Organ and Tissue Donation 4thed
Australasian Transplant Coordinators Association Incorporated.

Organ Transplantation from Deceased Donors: Consensus Statement on Eligibility Criteria and Allocation Protocols
Transplantation Society of Australia and New Zealand.

Performance Report 2011 [PDF]
DonateLife (2012)

Increasing organ donation in NSW
NSW Ministry of Health (2011)
Sydney, NSW Government.

Organ and tissue donation after death, for transplantation.
NHMRC (2007b)
Canberra, Commonwealth Government of Australia.

Cases

Doodeward v Spence (1908) 6 CLR 406 Cth
A majority of the High Court found that the preserved foetus of a two-headed child may constitute ‘property’ if it has been altered by a process of labour. The majority of the court found that if the corpse (or part thereof) had been altered for the purpose of medical or scientific purposes it acquired a value and became property.

Pecar v National Australia Trustees Ltd (Estate of Urlich Deceased) (unreported, 27 November 1996) NSW
The Supreme Court of NSW decided that tissue samples are property for the purposes of the Supreme Court Rules. The court held that as the samples were fixed in paraffin they were transformed into objects capable of constituting property (even though the question of whether such property could be ‘owned’ by anyone was left in doubt).

AW v CW [2002] NSWSC 301 NSW
Barrett J decided that the Status of Children Act 1996 (NSW) did not authorise the taking of material from a dead body to allow parentage testing.

R v Kelly [1999] QB 621 UK
The appellants in this case had been found guilty of the theft of approximately 35 human body parts from the Royal College of Surgeons. The defendants asserted that body parts were not property and therefore could not be stolen. The Court of Appeal upheld the trial judge’s view that the parts were property as they had been the subject of a ‘process of skill’ which meant that they had acquired a usefulness or value and were capable of being stolen.

Moore v Regents of University of California 793 P 2d 479 (Cal 1990) USA
The Californian Supreme Court found that a person had no rights of property in their own tissue, but that researchers who took the property and researched upon it could own it as property.

Greenberg v Miami Children’s Hospital 264 F Supp 2d 1064 (2003) USA
The plaintiffs were donors who had donated their tissue to a university researcher, so as to enable him to research into the genetic causes of Canavan disease, a degenerative disorder that causes progressive damage to nerve cells in the brain. The researcher successfully discovered the genetic link and his hospital employer patented the test. The patent meant that the hospital had control over who could access the test and how much to charge them. The donors sued the hospital for breaching informed consent, fiduciary duty, unjust enrichment, fraudulent concealment of the patent application, conversion and misappropriation of trade secrets. The Florida district Court on an interlocutory application refused to recognise that the donor had any property rights in their tissue.

Washington University v Catalona 437 F Supp 2d 985 (2006) USA
A researcher was denied property rights by his employer. The researcher had recruited several thousand participants to provide tissue to his tissue bank for the study of prostate cancer. The researcher left the university for a competitor institution and tried to take the tissue bank with him. The bulk of the participants wished for the tissue bank to remain in the researcher’s control. Washington University stated that it owned the tissue bank. The court found for the university. It also directly disputed any property rights belonging to the participants.

Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37 UK
The English Court of Appeal recognised that six patients whose sperm was stored while they underwent cancer treatment were entitled to bring an action in negligence or bailment for its destruction. The sperm had been destroyed accidentally by a mechanical failure.

Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118 QLD
The deceased male had stored sperm with an ART clinic before undergoing cancer treatment. After his death his de facto partner made a request that the ART clinic continue to store the sperm. The deceased had not consented to posthumous use and the ART provider argued that, given the lack of consent, the sperm should now be destroyed. White J disagreed. She found that the sperm was property which formed part of the estate of the deceased.

Edwards; Re estate of Edwards [2011] NSWSC 478 NSW
The Supreme Court had ordered the removal of sperm and later gave permission for the sperm to be taken out of New South Wales by the deceased’s wife. Hulme J found that the wife (who was also the deceased’s executrix) had a right to possession of his property, which included a right to possess the deceased’s body for the purpose of organising burial or cremation. The court found that this right of possession extended to the right to take possession of the sperm.

Re H, AE (No 2) [2012] SASC 177 SA
Gray J took the property approach of Bazley and Edwards and found that the frozen sperm was property which could be possessed by the deceased’s wife.

Re Section 22 of the Human Tissue and Transplant Act 1982; ex parte C [2013] WASC 3 WA
In this case, the husband and his wife had been trying to conceive for two years. The man had committed suicide after suffering severe depression. His wife, C, made an application to the court to retrieve the sperm. Edelman J found that wife could consent to tissue removal for medical purposes under the Human Tissue and Transplant Act 1982 (WA), s 22. Edelman J also thought that it might be possible for an order to retrieve sperm to be made under Order 52 r 3(1) of the Rules of the Supreme Court (WA).

Papers, Reports and Books

Non-heart beating organ donation: old procurement strategy – new ethical problems
Bell 
Journal of Medical Ethics
29 (2003)

Australia and New Zealand Cardiothoracic Organ Transplant Registry, 2012 report [PDF]
ANZCOTR

Australia and New Zealand Dialysis and Transplant Registry, Thirty-fourth annual report, 2011
ANZDATA (2012)
S Mcdonald and K Hurst Eds.

Australia and New Zealand Liver Transplant Registry, 24th report.
ANZLTR (2012) Brisbane, Combined Registries of the Australian and New Zealand Liver Transplant Centres.

The ANZICS statement on death and organ donation. (Ed 3.1) [PDF]
Australian and New Zealand Intensive Care Society (2010) Melbourne, ANZICS.

Seeking an ethical and legal way of procuring transplantable organs from the dying without further attempts to redefine human death
Evans, D (2007) 2 Philosophy Ethics and Humanities in Medicine 11.

Multimedia

Conversations in Ethics: Kieran Healy on the Ethics of Organ Donation
Kenan Institue For Ethics, Duke University

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