Over the past few years, I have been blessed to have received two cornea transplants. The corneas were from two different donors, transplanted about four years apart. While my vision is by no means 20/20, I will always be thankful for the generosity of the donors because their gift has made all the difference in the world.
It is against this backdrop of my own reliance on organ donation that I have been reading the latest Christmas gift from the Australian Law Reform Commission, which is a discussion paper for its review of human tissue laws.
The paper, which aims at national consistency on laws related to organ transplants, blood and plasma donation and other transfers of human tissue, was released at the end of November and has a January due date for submissions. This timing always raises a red flag for me, because it is not beyond bureaucracies to “consult” on critical issues over the Christmas or Easter periods, where churches are at our busiest.
Happily, this issues paper does not propose extreme items like the sale of aborted foetuses or euthanasia by organ transplantation (ie. replacing lethal injection with removal of critical organs as the cause of death), but it is still a critical piece of work.
It is clear these human tissue laws are important not only for upholding the dignity of the human person and ensuring the human body is not (further) commercialised, but also in helping us articulate what it means to be human. As Catholics, we know that the human person is a unity of body and soul, and this really comes through when working through proposed laws about how we treat our bodies.
For example, the issues paper includes questions about whether gametes and foetal tissue extracted from a deceased person should be included in the definition of human tissue and so subject to the provisions of the law, or should they excluded from the definition, given that the former can be used to create human life and the latter is already human life, in each case separate from the deceased donor.
On the one hand, we all remember the horror stories of the sale of aborted babies in the United States, and none of us want that here. There obviously needs to be some especially strong regulation about the treatment of gametes and unborn children who have died as a result of their mother’s death — a prohibition on them being traded commercially, for example.
On the other hand, dealing with deceased unborn in a law governing human tissue can seem to disregard their life as just another body part.
The need for some regulation, I suggest, is fairly clear cut.
The issues paper also asks about how breast milk should be treated. Should it be treated as any other human tissue, or regulated with food products? On the one hand, it is donated in the same way as other bodily fluids, but on the other hand, it is easier to obtain and regenerate and is used to feed newborn babies.
Then there also questions about consent, particularly for minors or adults who lack capacity to consent to medical treatment. Should donations never come from those who regularly have a substitute medical decision maker, or are there circumstances under which the decision-maker, a doctor or even a court might be able to permit it in some cases?
And even if consent is given, how long does that consent last? For example, if you donate blood, are you able to change your mind and ask for it to be returned or destroyed?
Or say, for example, the next of kin of a deceased person agrees for their corneas to be donated and stored in a tissue bank until they are needed. Can they withdraw their consent at a later date and ask for the tissue back, or does it no longer form part of the deceased person once it has been removed and sterilised?
It is an extraordinarily complex area because it raises the question of whether our claim over our bodily parts or fluids continues when they are separated from our bodies.
The recommendations from the Australian Law Reform Commission are not due until August next year, but they are worth keeping an eye on. While these are fascinating and important questions to think about, the fact is that laws can only go so far in helping us understand our humanity.