Healthcare law analyses of the Donor Registry in the Netherlands: Is registered consent to organ donation legally binding after death?
D.G. Georgieva, N.E. Jansen, B.J.J.M. Haase-Kromwijk
Chair(s): Dr. E.M. van Maarseveen
Thursday 9 march 2017
12:45 - 13:00h
Categories: Poster - Basaal
Parallel session: Postersessie - Basaal 2
Introduction:
According to the EU Directive 2010/45/EU several models of consent to donation can coexist in the Union. In order to enable individuals to express their wishes within in the different models, some countries developed specific registries where citizens record them. The Netherlands is one of the countries with such a registry. The Organ Donation Act, which is based on an opt-in system, is supported by a national Donor Registry (DR). The legal status of such register is not described in the EU Directive, thus Member States are free in choosing the status. In The Netherlands the DR is not considered to be a will and therefore not legally binding after death. So what is the legal purpose of a registration?
Argumentation:
In healthcare law the basic principle is informed consent: a process for getting permission before conducting a healthcare intervention on a person. The EU Directive states that the procurement of organs shall be carried out only after all requirements relating to consent, authorization or absence of any objection have been met. Following from this, a registered consent in the DR is legally a justification in the form of informed consent for organ procurement. Because in The Netherlands the DR is not the same as a will, a registered consent makes the decision to be an organ/tissue donor not legally binding after death of the donor. This has several consequences, one of which is the possibility of the donor's family to overrule the registered decision.
Conclusion:
The legal status of a register within the several models of consent to donation is an important issue which has to be taken into consideration before organ procurement. It does not seem very meaningful to have a register which is not legally binding after death of the donor. Therefore a discussion on this subject is necessary even if it is just to bring awareness to the people involved in the field of organ donation and transplantation.
