Washington International Law Journal


Improving the worldwide organ transplantation rate is an important goal for the world health community. Thousands of people die each year waiting for organs that would save their lives. New Zealand has one of the poorest rates of transplantation in the Western world. In 2008, New Zealand passed the Human Tissue Act in an attempt to improve the number of donors and ultimately increase the number of transplants performed. To promote the autonomy of individuals, the new law prioritized who can give informed consent for organ donation upon death, with individuals’ actions and intentions being paramount. The law allows individuals to provide informed consent to donate their organs upon death or to designate another individual to make the decision for them. The family’s permission is requested only if the donor or nominee failed to give informed consent. This framework is necessary to address one of the biggest obstacles to organ donation: the family’s refusal to donate. Because of ethical and publicity concerns, doctors and organ procurement specialists will not take an organ over an objection by the family, although trends suggest this might be changing. This comment argues that key parts of the law prevent it from increasing the number of donors. The law fails to establish a national registry where New Zealanders can register their informed consent. While the law allows for the database to be created in the future if the need arises, not instituting it immediately leaves those individuals who would otherwise donate few options: a will or advance directive. These options are costly, and very few people will take the initiative to execute them. Failure to create another option leaves the status quo in place; a donor designation on a driver’s license will not be considered by medical professionals, and the family will decide whether or not to donate their loved one’s organs. This comment argues further that New Zealand can strengthen its legislation and the autonomy of the individual by establishing a national registry and pairing it with a required response system. Required response would mandate that all New Zealanders choose during life what they would like to have done with their body upon death. When New Zealanders register their informed consent in the national registry, physicians and organ procurement specialists can have reliable, accurate information about the wishes of the deceased. Through these two systems, New Zealand can move toward implementing a system of first person consent. In conjunction with these recommendations, an advertising and education campaign should be instituted to positively influence the family and help promote a culture in New Zealand where donation is the norm.

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