Consent and Legal Regulation of Cadaveric Organ Donation

Assess whether consent is appropriately protected in the legal regulation of live and cadaveric organ donation in England.

Informed consent is an ethical and legal requirement for any medical matter from treatments, research trials to organ donations. It is the centrepiece to a patient’s autonomy, the right of patients to make decisions about their medical care without their health care provider trying to influence the decision. It is the process where an individual is informed about all aspects of the medical matter which are important for the individual to decide.

The question here is whether consent is appropriately protected in the legal regulation of live and cadaveric organ donation in England. But what exactly is organ donation? Organ donation is when an individual’s organ is removed legally either with their consent or next of kin. This donation may be for number of reasons such as research, transplantation, post-mortem and education. Live and cadaveric organ donation are the two types of donation[1]. Cadaveric donation is when tissue or organs of a person who is dead is removed. Live donation is when a living person donates one of their organs such as bone marrow, liver parts, kidney to someone else[2]. The first successful organ transplant took place in Boston in 1954 and it involved a live kidney transplant between identical twins. Six years later, a successful organ transplant was performed in the UK[3]. The law governing organ donation in UK are different for the two types of donation.

LIVE DONATION

Living organ donation has developed as an important alternative to cadaveric organ donation. In England alone in 2016/17 there was 631 live donor transplants[4]. Specific frameworks for living organ donation is provided by national law and guidelines. In England especially, live donation is governed by common law as well as by statute. The Human Tissue Act 2004 (HTA 2004) covers consent to the use and storage of tissue taken from the living, but its removal continues to be dealt with at common law and under the Mental Capacity Act 2005. If a human material is removed without consent, it may constitute liability in the tort of battery and liability in criminal law in either relation to battery or one of the more serious offences under the Offences Against the Person Act 1861. Nevertheless, the law regarding live donation varies for different type of individuals.

Starting with a competent adult, the principles regarding the lawfulness to remove organs from living donors has never been set out properly in the Common law. The minimum requirement is that the donor, must, where adult and capable, always consent to the removal of an organ[5]. This is a genuine application of the general rule that the consent of a capable adult is needed to any medical procedure. This can be supported by Dworkin where he suggested that the patient must give, full, free and informed consent. A patient should be informed of all the facts relating to the operation which would enable a reasonable person to weigh up the risks and benefits and arrive at a rational decision whether to undergo the operation[6]. However, problem arises when the donor is closely related to the potential donee. The doctor needs to ensure that consent was indeed freely given, free from coercion or undue influence. In England, the HTA 2004 governs the law relating to live donation. The Human Tissue Authority (HTA) regulates the donation by living people of solid organs and part organs. They give approval before any living donation can proceed. An Independent Assessor accredited by the HTA will assess all donors to ensure that all the legal requirements have been met[7]. This shows that consent is appropriately regulated in England.  Especially when comparing to the US, where the law provides less certain guidance. In the US, there is no Federal legislation regarding living donation and the State does not address the question regarding this. In fact, in the US it is illegal to sell organs and informed consent is required for the surgical procedure associated with donation[8].

Several legal and ethical issues arise when removing human material from incapable adults as donors, including a patient in a persistent vegetative state (PVS). The legal position, until quite recently, was less clear in the relation to the lawfulness of using incapable adults as donors as this means they are incapable of giving their consent. Section 6 of the HTA 2004 states that if an adult lacks capacity to consent to the use or storage of material for the purposes of transplantation, then his or her consent can be deemed in certain circumstances[9]. Approval of the court would be required for the donation as well as of the approval of a panel of at least three members of the HTA when there is no effective consent in place. The general position on the treatment for incapable adults is covered by the Mental Health Capacity Act (MCA) 2005[10]. There are in fact three grounds that can be relied on for the authorization of the removal and transplantation of an organ or bodily material from an incompetent person. Firstly, there are situation in which the incompetent person made an advance decision authorizing the transplantation of the organ. If so, it will be possible to rely on that as consent to the donation. However, as per the MCA 2005, the advance decision can only relate to refusal of treatment[11]. Therefore, if an individual consented to organ donation before becoming an incompetent person, the donation will not be authorized. Secondly, if the incompetent person signed a lasting power of attorney (LPA) that allows another individual to make decisions concerning his or her welfare and that authorized person has approved of the proposal removal of material for donation[12]. Yet, this individual can only authorize treatment and donation of bodily material may not be ‘treatment’. Also, this treatment must be in the best interest of the patient. Thirdly, donation from an incapable adult may be authorized if it in the best interest of the patient. Section 1(5) of the Mental Health Capacity Act 2005 states that if an act is done on behalf of a person who lacks capacity, this must be done in his best interests[13]. Therefore, a material can be taken from an incapable adult for donation to another if it is in that individual’s best interest. In F v West Berkshire Health Authority, the House of Lords made it clear that medical treatment may be undertaken where it is in the person’s best interests[14]. However, the donor is not being ‘treated’ for an illness, instead, he is acting as a mean to cure another by donation an organ. So, could the donation of an organ by an incompetent adult ever be regarded as being in his best interests? The Law Commission stated ‘that respondents supported their suggestion that an operation to facilitate the donation of non-regenerative tissue or bone marrow by a person without capacity should automatically be referred to the court. The need for any such decision will not stem from any existing distressing condition of the person without capacity but from the illness of some other person. Organ donation will rarely, if ever, be in the best interest of a person without capacity, since the procedures and their aftermath often carry considerable risk to the donor’[15]. However, a case that has come before court in the United States suggest that it may be in the best interest of a person without capacity to donate an organ for the survival of a close family member. In Stunk v Stunk, the court authorized a kidney transplant from Jerry, a 26-year-old mentally handicapped man to his 28-year-old brother. The court emphasized that the brother’s death would have an extremely traumatic effect on Jerry[16]. Also, the question whether organ donation is in the best interest of an incompetent person arose for determination in an English case. In Re Y, the court looked at whether test can be made to ascertain the suitability of a bone marrow donation from a 25-year-old handicapped woman for her 36-year-old sister. Without the transplant, the sister would develop acute myeloid leukaemia within three months and eventually die. Cornell J granted the performance of the test and if necessary, the bone marrow harvesting operation. Cornell J relied on the US case Curran v Bosze (1990) and stated that ‘there must be an existing, close relationship between the donor and recipient… only where there is an existing relationship between a healthy child and donating bone marrow to a sibling realistically be found to exist. The evidence establishes that it is the existing sibling relationship, as well as the potential for a continuing sibling relationship, which forms the context in which it may be determined that it will be in the best interests of the child to undergo a bone marrow harvesting procedure for a sibling’[17]. This shows that the court adopted a wide interpretation of ‘best interests’. The wider interests a person has as part of the social community must be relevant as well as the health of the person. Nevertheless, there are limitations on invoking a test for the justification of organ extraction, especially on non-regenerative organs. Andrew Grubb commented that the Re Y case is an unusual case that concerned a procedure with minimal risk for the donor. In fact, if the benefits of the procedure were weighted against the risks of doing it, Andrew Grubb stated that the court is not likely to contemplate donation of non-regenerative tissue such as kidney. While there is minimal risk of having one kidney in the long term, they still exist which would make it difficult to satisfy the ‘best interests’ test. This can be supported by Cornell J remark where he emphasized that his decision should not be considered ‘a useful precedent in cases where the surgery involved is more intrusive’[18].

Nevertheless, what about children? First, can a child consent at all to become the recipient of an organ? In the case of an older child of the age 16-18, the question we must ask is whether the child is Gillick-competent to give consent themselves. It is argued that a high degree of competence is needed by the child before they can give consent to such a major surgical procedure. Usually, parental consent is required before the transplantation surgery could be undertaken. However, there are difficulties that arises. A child’s parents may refuse to give consent to a transplantation surgery, due to the reason the child has suffered enough and believe it is not suitable to take further therapy. Or a child’s parent may not give consent as they believe that the transplant procedure is of a pioneering nature and they do not wish to take the risk of including their child in such a therapy. This can be seen in the case Re T, the parents refused to give consent for a liver transplant for their child[19]. But it must be considered that the facts in this case were unusual and the case itself is highly exceptional in its nature. Therefore, is it legitimate to subject children to a procedure where there may be a high degree of risk in the face of parental opposition? Where a dispute arises between health care professionals and parents as to the efficacy of the transplantation procedure, this is a matter which should be referred to the court under one of the available orders. Second, can a child lawfully act as an organ donor? If the child is under the age of 16, this would be a matter for parental consent. However, can a parent authorize such a procedure? Clinical procedures can be consented by parents on the basis that it is in the child’s best interests. Yet, can the donation of an organ by a child by in their best interests? There is no case law that deals specifically with the question of children donating organs. When an incapable minor child is concerned, the HTA 2004 governs organ donation. As with incapable adult, for incompetent child, the removal or use of transplantable material is only allowed when the condition specified in the regulations issued by the Secretary State are complied with and the HTA is satisfied with it[20]. The regulations are provided in the HTA 2004 (Person who Lack Capacity to Consent and Transplants) Regulation 2006[21]. A Codes of Practice has been introduced by the HTA. It recommends that court approval should be obtained before organ removal in accordance with common law and the Children Act 1989. The court should consider if there is any doubt as to the best interests of the minor[22]. The Family Division of the High Court or the Court of Protection are the applicable court and they will have to determine whether donation would be in the best interests of the minor, by considering the “welfare checklist” set out in the Children Act 1989[23]. It is suggested that the donation of bone marrow can be in the incompetent minor’s best interest, especially when the donation has the potential to save the life of a sibling or a close family member. However, no cases have arises regarding whether organ donation could ever be in the best interests of an incompetent minor. However, authority from another jurisdiction suggests that this might be possible. In Little v Little, a 14-year-old girl named Anne Little suffering from Down’s syndrome was authorized to donate her kidney to her brother Stephen by the Court of Civil Appeals of Texas. It was allowed based on a best interest test. The Court pointed out that Anne and Stephen’s close relationship and a genuine concern for each other’s welfare were reasons that showed that it was in Anne’s best interest to donate. Also, Stephen was likely to die as there were no alternatives. The chance of obtaining a suitable cadaveric organ was unlikely and no adult members from the family were medically acceptable to be a living donor. Furthermore, it was seen that Anne even though incompetent had on several occasions stated her willingness to donate. Given the presence of all these factors, the court established that it was in the best interest of Anne to donate[24]. This case preceded other cases where the court authorized bone marrow, skin, or kidney donation by minors and mentally incompetent adults. The procedure for consent may differ when living donation by competent minors is considered as competent minors are treated as competent adults. Based on the free and informed consent of the minor, living donation of regenerative material can be done, without requiring approval of the HTA. Yet, the Code of Practice advises to consult the child’s parent and involve them in the decision making, although the decision to consent must be the minor’s alone[25]. Further, the HTA 2004 does not offer guidance as to when a minor is to be considered competent. It is still a matter of considerable debate. 16 and 17 years old minors can give consent to ‘any surgical, medical, or dental treatment’, with their consent being valued the same as of an adult according to the Family Law Reform Act 1969[26]. But, it can be argued that treatment may not cover every medical procedure and therefore it is unlikely that tissue or organ donation would be classified as treatment[27]. Under the common law, the leading Gillick case can govern organ donation by competent minors. In the case, it was accepted that a minor with sufficient understand and intelligence to understand fully of what is proposed can provide legal consent for medical procedure[28]. Yet, the applicability of the concept of Gillick competence may be limited in regard of organ donation as the level of maturity needed depends on the severity of the issue. However, during the Parliamentary debate of the draft HTA, the capacity of a minor should be determined by reference to the common law[29]. This can be supported by the Codes of Practice that states minors who can demonstrate that they are Gillick competent may consent to the proposed donation. But, as a cautionary approach, the Codes suggest that regardless of whether a minor is Gillick competent, court approval should be obtained before removal of an organ. Nonetheless, can living organ donation by a minor ever be regarded as a best interest. The welfare checklist of the Children Act 1989 shows that the court should take into the consideration the ascertainable wishes and feelings of the minor concerned. With children that are Gillick competent, this means that their wishes will be more likely to be granted[30]. Also, when the relationship with the donor is considered live organ donation may be regarded in their best interest. To begin with, for example, the court will find it easy that the welfare of a child is promoted by the donation, if the donation were to a sister with whom the child had a close bond and without the donation the sister would die. However, this would be difficult for relationships where the child and the recipient were more distant. Or for example, if the child is a new-born sibling, is it justifiable to say that the child’s benefit will be gained in the future from the relationship they will have with the sibling if donation took place? In the case Hashmi, the House of Lords approved the decision of the Human Fertilisation and Embryology Authority that screening embryos to see if they would have matching tissue for a bone marrow or umbilical cord transplant was authorized[31]. The permission of the screening can imply that any subsequent donation could be regarded as lawful. Also, the Code of Practice mentions that the emotional and social benefits must also be considered for a child to donate an organ[32]. To find whether a donation is in the best interest of the child, the pain of the donation must be weighed against the emotional and psychological benefits that child may gain from donation. However, the World Health Organization feels that there should be a blanket ban on the use of minors as organ donors[33]. But, many would support Garwood-Gowers argument that ‘perhaps the only circumstances in which the incompetent minor should be used… is where the donation is a necessity such as because it is the only feasible option for pre-serving the life or well-being of a prospective recipient who is a key component in the incompetent minor’s own well-being’[34]. However, it can be argued that this is a disingenuous argument to say that it is in the best interest of a minor to sacrifice a healthy kidney. Even though, there may be psychological benefits as well as practical benefits of having a sibling survive into adulthood, it is still a stretch to say that undergoing an organ transplantation surgery with no therapeutic benefit is in that individual’s best interest. Also, the best interest standard is vague and difficult to determine. The matter is in fact decided based on who the legitimate decision maker is rather than by any objective standard. To add to this, if sibling donation is allowed, based on the quality of the relationship, this may open the door to allowing donation to non-siblings. Unrelated adult donors are common; therefore, people may think it is acceptable to have non-siblings’ minor donors such as from a cousin or a friend that shares a close sibling like relationship. Lainie Friedman Ross criticized the best interest standard as it overlooked the nature of intimate families. It was argued that the welfare of the whole family must be taken into consideration which may not be the same as the best interest of one child[35]. Nevertheless, it can be deduced that nearly all commentators agree that forcing a child to donate an organ against his or her wishes is improper, regardless of whether they are competent or not. Such an action is likely to infringe the child’s rights under the Human Rights Act (HRA) 1998[36].

CADAVERIC DONATION

It was always assumed that consent was needed for the living whilst different ethical standards applied to the dead. However recent event, such as the experience of Alder Hey hospital changed this assumption forever relating to organ donation[37]. The HTA 2004 was introduced, which aims to clarify the law governing the treatment of human materials generally. Nevertheless, the question we must ask is whether this Act does in fact appropriately protects consent in the legal regulation of cadaveric organ donation in England.

Originally, as Gerald Dworkin puts it, the common law regarding organ donation was that a corpse cannot be the subject of ownership. The executor or next of kin had lawful possession of the body with the duty of arranging burial. Also, a man would not by his will, legally determine what was to happen with his body after his death. This meant that organs could not be taken from corpses for transplantation. However, bodies were required for teaching and research. The Anatomy Act 1832 was passed to enable bodies to be supplied legally to medical schools for anatomical examination. However, medical profession realized that the law relating to cadavers was far too restrictive. The Corneal Grafting Act 1952 was eventually passed after the successful development of the corneal graft operation. The act authorized the use of eyes of deceased persons for therapeutic purposes. However, this act did not allow any other part of the body to be removed. The HTA 1961 replaced the Corneal Grafting Act 1952 and allowed in certain circumstances, the use of the body or any specified part of the body after death for therapeutic purposes or for purposes of medical education or research[38]. The HTA 1961 allowed organs to be removed for transplant where the deceased had expressly consented to it. Also, in the absence of such a request, removal of an organ could be authorized if inquiry showed that there was no objection to this by either the deceased or his spouse/surviving relatives. However, the act was vague. What is the scope of any surviving relative? Could a breach of statute be demonstrated? There were situations where parents of the deceased were present but were not asked if they objected to organ removal[39]. There were also lack of effective legal penalties for storing cadaveric organs without the consent of the relatives. In the late 1990s, the Alder Hay scandal showed that organs of deceased children had been stored without their parent’s knowledge. The Parliament repealed the 1961 Act together and introduce the HTA 2004, which covered cadaveric organ transplantation. The removal, storage, and/or use of human tissue, with wider implications than for transplantation alone is established by the 2004 Act. The purpose of the act is to ‘provide a consistent legislative framework for issues relating to whole body donation and the taking, storage, and use of human organs and tissue. It will make consent the fundamental principle underpinning the lawful storage and use of human bodies, body parts, organs and tissue and the removal of material from the bodies of deceased persons. It will set up an over-arching authority which is intended to rationalize existing regulation of activities like transplantation and anatomical examination and will introduce regulation of other activities like post mortem examination, and the storage of human material for education, training and research. It is intended to achieve a balance between the rights and expectations of individuals and families, and broader considerations, such as the importance of research, education, training, pathology and public health surveillance to the population as a whole’[40]. However, does the act appropriately protect consent in the legal regulation of cadaveric donation in England.

Starting with organ transplantation, Section 1 of the HTA 2004 allows the removal, storage, and use of organs for transplantation from a deceased person if there is ‘appropriate consent’[41]. For adults, under section 3, there are 3 grounds in which appropriate consent can be obtained[42]. Firstly, if the deceased consented to organ transplantation, either by being registered or carrying an organ donor card, the doctors can lawfully remove the organs. However, the process of giving consent when signing up to register for organ donation is very different from the normal consent process. To register for organ donation, individuals can either tick the relevant box on an application form for a driving license, which is mandatory for new applicants. They must choose one of the three options: yes, I would like to register, I am already registered or I do not want to answer this question now. Or they can fill in a brief application online[43]. Ticking a box online does not show the person’s capacity to make this decision and it is not a formal information-giving process. The Organ Donation Taskforce commented that in fact ‘clinicians are concerned that carrying a donor card, or registration with the donor register falls short of what would usually be defined as consent in a medical setting. Also, the time gap between registration and death is seen to weaken the ethical force of the action, especially when there is lack of independent evidence of a persisting wish’[44]. The deceased could also consent to organ donation verbally and other effort are taken to find out whether the deceased had expressed her wishes about organ donation, if there is no donor card, or they are not on the organ donor register. However, if the deceased had made it clear that they do not want to donate their organs, the family cannot override the wish. Secondly, under the section 4 of the Act, an individual can be appointed by the deceased to deal with consent. In such case, the appointed person’s consent will be sufficient if the deceased’s wishes are not known. The appointment can be made orally and witnessed by two people or in writing and signed and witnessed by one person. However, the representative must be an adult and they have the option to renounce their appointment. In situations where there is two or more people who are appointed as nominated representatives, the consent of one them is enough unless the terms of the appointment were to act jointly[45]. Thirdly, consent can be sought from someone who stood in the closest qualifying relationship where the deceased wish is not known and they have not nominated a representative, or the representative is not able to give consent[46]. The order is that the consent of a spouse or partner must be sought first, and if no spouse or partner is available to consent, the parent or child of the deceased can give consent. If none are available, siblings may consent[47]. The HTA Code of Practice shows that a person can be omitted from the hierarchy, and the next person down can give consent. Organs must be removed as quickly as possible after death; therefore, it is not always possible to contact the person highest in the hierarch of qualifying relatives[48]. Relationships such as child or parent have equal ranking so one of them is enough to give consent. This means that if an individual without spouse or partner died and had children, any of them can authorize organ donation, even if all the other do not consent to it. However, problem arises when there is an estranged spouse and a new partner. If the spouse consent, and the partner objects, the spouse’s consent would suffice. Nevertheless, even if the deceased consented to organ donation, the relatives” views will be considered. The Code of Practice advises for health professionals to try encouraging the family to respect the deceased’s wishes. But, if there is a continued objection, they must not proceed with the removal of the organ[49]. This shows that although the deceased’s family do not have a legal right, the doctors may not retrieve the organs where relatives object. This may be for compassionate reason or to avoid the bad publicity that might occur from it. However, should relative have any say over what happens to a person’s body after death? It is in fact inconsistent with the principle of patient autonomy. When the deceased was alive, the family members had no say over the deceased’s medical treatment, so how may they overrule the deceased’s decision after their death? Margaret Lock suggests that families make the greatest sacrifice rather than the donor itself. She commented that donation is a selfless act, but family’s members make a much greater emotional sacrifice. They must accept that someone close to them has been changed in the space of few hours. This is hard especially when a health person is transformed into an irrevocably damaged entity, suspended between life and death[50]. To add to this, statistics shows that when a patient is known to have expressed a wish to donate, the consent rate for potential donation after brain death is 93 per cent and for donation after cardiac death is 79 per cent[51]. This shows that even though an individual may have authorized donation during their lifetime, the family refusal meant that they did not donate. In its annual Potential Donor Audit, UK transplants recorded the reasons for which the relatives refused organ donation. 12 per cent refused because they did not want surgery to the body whilst 9 per cent refused for religious beliefs[52].

For deceased children, the removal of organ will be lawful if there is appropriate consent under section 2(7) of the HTA 2004[53]. This means Gillick-competent minor can consent to organ donation. However, if the child is dead, establishing that they were Gillick competent will be difficult. Also, some would argue that children should not consent to organ donation.  Nevertheless, even if the child’s wishes are known, removal of organs cannot be done without discussion with someone with parental responsibility. If a child did not make her views known before her death, as well as those who are not Gillick-competent before they died, consent can be given from anyone with parental responsibility. If the child has no one with parental responsibility, someone in the highest ranking qualifying relationship can give consent. Section 5 of the HTA 2004 provides that anyone who takes organ without appropriate consent commits an offence, which may attract a penalty of maximum three years’ imprisonment. However, if the surgeon reasonably believed that the appropriate consent had been given, they will not be criminally liable[54]. For example, if a surgeon relied on the consent of a deceased’s spouse to retrieve an organ for transplant, without knowing that the deceased had made a written statement not wanting their organs removed, the surgeon will not be criminally liable. However, there must be evidence that shows there were reasons to believe that no written statement was made by the deceased. Yet problem arises from this. What lengths is the surgeon supposed to go to find out whether there was a binding decision? Perhaps the word ‘reasonable’ can be interpreted if a surgeon is to find themselves in such situation.

Nonetheless, there are situations in which a person may wish to donate an organ but attach conditions as to who should receive it. For example, an individual wish to donate their organ only if they are assured that the recipient would be of a certain race or sex. Could this be ethically and legally allowed? Conditional donation is in fact not permitted. In July 1998, a man who was in critical condition was admitted to an ICU in England. His relatives agreed to organ donation subject to the condition that the organs went to white recipients. In fact, the people in need of a liver and a kidney on the top of the queue were white. When news of the case emerged, the Department of Health set up an investigation. The panel held that it was wrong to accept the organ and advised that organs must not be accepted if there are conditions attached to it by the family or the donor. The Department of Health accepted this and made it clear that conditional donation applies to all conditions. It is not just to racist and discriminatory conditions[55]. However, this is simply morally objectionable. If a suitable organ is turned down on moral grounds, it can mean that an identifiable individual on the waiting list may die due to the refusal of the organ. For example, in this instant, the liver recipient would have died within 24 hours if the organ was not accepted and it was unlikely that an alternative non-conditional organ would have become available to save the life of the recipient. Also, it can be argued that there is inconsistency between living organ donation and cadaveric donation. Living organ donation is almost always to a specified individual whilst cadaveric donation must be unconditional. TM Wilkinson in fact points out that it is hard to see what would be wrong with allowing directed donation to a close friend or relative after death. He commented that the panel claims that conditional donation ‘offends against the fundamental principle that organs are donated altruistically and should go to patients in the greatest need’. Altruism means non-self-interested concern for the interests of others. Special concern for children, or the deaf, or the poor are altruistic. Therefore, an individual should be allowed to donate on the condition it goes to a child[56]. Also, it is in fact rare for cadaveric donation to be directed to a specific individual as organ donors are often unaware of their impending and often sudden death. However, there are situation where a person had, before death, communicated a preference that one her organs should be used to treat a close relative. In 2008, Laura Ashworth had expressed an interest in donating her kidney to her mother. Laura eventually died from an acute attack of asthma before having done any formal steps towards living donation. As she was registered on the organ donor register, her organs were removed and her kidneys went to two strangers on the top of the queue of the waiting list. If Laura had been a living donor, the kidney would have gone to her mother[57]. As a result, The Department of Health has issued new guidance that reiterates that donation must always be unconditional. However, advised that there may be situation when weight should be attached to the wishes of a person about to whom their organ is given. It must satisfy all three requirements that the donation is unconditional, there is evidence of an intention by the deceased to be a living donor, and there is no one on the waiting list who case merits priority to the requested recipient[58]. However, it will be rare for these requirements to be met. Antonia Cronin and James Douglas have questioned the legality of the guidance. The HTA 2004 requires the consent of the deceased. It is not clear whether an organ can be used for other people, if the deceased has consented to the donation of the organ only to a person or group of people[59].

As mentioned above, the key principle of Act is that someone’s relevant material can be used only with their consent. However, there are situations in which it is lawful to store and use human material even though there is no consent. First, if the Human Tissue Authority can deem that there is consent when it is not possible to trace the individual from whom the material originated[60]. However, this is only likely to happen where the material could be used for genetic testing purposes to assist in the diagnosis or treatment of a patient. Also, appropriate consent can be deemed for ‘research purposes about disorders, or the functioning on the human body’ by the High Court. The storage of ‘relevant material’ from a body can be covered by this order and will be made public if it is in the public interest[61]. Therefore, it can be argued that consent is not appropriately protected in England even though the HTA 2004 was introduced. However, the government has in fact stated that this power is to be used only in the most exceptional of cases. Furthermore, consent is not required when a body or human material has been imported from overseas[62]. For example, if a hospital receives organs for research purposes from Denmark, the English hospital does not need to ensure that the organ came from an individual who consented to it. It is presumed that the law regulating the country of origin has provided protection for their citizen’s right. Finally, the Act does not cover the functions of the coroner. This means that a coroner may authorize the retention of organs without complying to the HTA 2004. Nevertheless, the HTA 2004 strikes a delicate balance. It ensures that there is effective consent to the removal and use of human material whilst recognising that the use of human material is important for training and researching into medical illnesses.

However, the reason of the exception that storing and using human material without consent for training, audit, or teaching is considered necessary for the public health of the nation will not convince everyone. What is the reason why research is not regarded as necessary for the public health of the nation? Section 1(7) – (9) states that the use of material for research without consent is permitted if the factors such anonymization of any sample and approval by a research ethic committee (REC) are met[63]. Also, it is seen that doctors were relying on utilitarian reasoning for what happened at Alder Hey. They believed that removing the tissue and not telling the parents of what had happened was for the greatest good, rather than recognizing the rights of individuals to have control over their bodily material[64]. Hence, the HTA 2004 can be seen to balance a rights-based approach and a utilitarian approach. The number of exception to the act, which are justified as best in the interest of public good shows the impact of utilitarian reasoning, whilst the statute itself shows the right-based approach by granting clear rights that human material cannot be stored or used without the consent of the individual. However, even though many argue that this is necessary, it can be argued that any rights analysis requires the rights of the community to be balanced against the interests of the general community. Nevertheless, Pattinson argued that the HTA 2004 rests on the assumption that people do in fact own their body parts. Pattinson commented that ‘we have seen that the 2004 act grants a negative right to donors and their representatives, which amounts to negative exclusive control over the donor’s organs, and that that control turns on nothing more than the donor’s identity as the source of the organ in question. In other words, a tenet of the 2004 Act is that the relationship between the source and the organ is such that the source is to have exclusive negative control even when the particular use is one that the source has no subjective interest in’[65]. In other words, Pattinson statement suggest that the rights given in the Act is justified only if we start from a reasoning that individual have property rights over their body parts. However, Dr Chau and Jonathan Herring disagree with this. They suggest that Parliament by enacting the Act did not recognise property rights in the body. This is because the rights could be designed to protect autonomy or dignity interests[66]. Also, section 32(9)(c) of the HTA 2004 excludes the prohibition of commercial dealings any materials that are subject to property because of an application of human skill.

Moreover, it can be argued whether parents should have say concerning the bodies of their deceased children when research in involved. It is generally thought that they should be. But is it right for the view of parents on what should happens to their children’s bodies to hamper the advance of science. Brazier argued that the parent’s views must be respected. He argued that the child is theirs therefore the body belongs to them. Also, that they are the ‘guardians of the family’s values’ whether it is religious, cultural or simply person convictions. If parents are not allowed to have a say, it will affect their own mental health and emotional wellbeing. Having control over their child’s bodies helps them come to terms with the loss of all the joys of parenthood. Further, when organs are removed, the body are transformed. Having a say means that the physical body of their child remains fixed in the mind. Although parents are aware that the child does not suffer or bleed, nightmares can haunt their sleep[67]. Nevertheless, others can argue that even though feeling sympathy for grieving parents is understandable, the law must rise above ‘mere emotion’. It can be argued that it is not right that a wish of parents to trump the public interest in carrying out research into childhood illnesses. This is especially the case in which in the long term, it might save the lives of other children. Also, post-mortem is not as legally affected by the feelings of grieving parents. Does this mean that the post-mortems are more in the public interest than research into childhood illness?

The HTA 2004 shows that in relation to cadavers, the wishes of the deceased, if expressed should be followed. For example, if a deceased clearly stated that they do not want their body to be used for medical research, their wish should be respected. However, this view is not approved by everyone. Harris has argued that the interest of what happens to someone body after death should carry a light weight. This is because after death, a person cannot be harmed, as they no longer exist making their interest weak. An individual’s wishes of what happens to their body after death should be outweighed by the public interest in enabling researchers to use material from cadavers as medical research have enormous benefits[68]. Harris argues that individuals regularly dispose of part of our body tissues through bowel movements, combing hair, menstruation and bits of bodily material being taken by doctors is the same as these losses of human material. Therefore, storing and using human materials should be allowed without the consent of the individual. He summarised his argument by saying that ‘he suggests that considerations for the welfare and interest of the dead and the philosophical attention given to them are self-indulgent nonsense at best, and at worst a crime against humanity. The real issues are the extent of the harm that might be caused by not using tissue, organs, cells, DNA, and other biomaterials from the dead, and the extent of the good that using such biomaterials might achieve’[69]. However, Harris’s view can be argued that is driven by a cold rationality. Many of the organs found in the Alder Hey and Bristol scandal were simply being store and not used for ground-breaking research. Nevertheless, Brazier argues that people’s views about how they wish their bodies to be treated deserve the highest respect. It may represent their powerful religious beliefs. Islam, Judaism, and some Christian traditions have specific requirements in the way a body must be disposed. Preventing the burial of bodies would infringe religious rights. For example, for some religion an improper burial will mean awful consequences in the afterlife[70]. Also, Brazier argues that the image of the dead person remains fixed in the minds of most bereaved families. Everyone grieve differently and some grieving couple’s imagination may overpower the reason that a dead person would not suffer when organs are removed. Even though families deserve respect, this feeling is irrational and should not hinder important medical progress. However, imposing this view on the world is not right. Although it is good for people to donate their bodies altruistically to medically science, when an individual is alive, they are not forced to be altruistic so they should not do so when they die. Also, ignoring a person’s wishes about their body does cause the person harm. As Brazier puts it ‘We live in a world where our welfare depends on the mutual love and solace our families and friends provide for us. We live in the knowledge of death’s inevitability. How we will be treated after our death affects our welfare in life’[71].

The current system in England is an ‘opt-in’ system which allows individual to volunteer to become organ donors or have a nominated representative or a qualifying relative give consent. When compared to an opt-out system, the law in England is appropriately regulated regarding cadaveric organ donation. An opt-out system which is in work in Wales assumes that every potential donor is willing to donate their organs. If an individual is against it, they can opt out by formally registering their unwillingness to donate. The Human Transplantation (Wales) Act 2013 states that anyone who dies in Wales is regarded to consent to organ donation unless there is evidence that they objected it. A relative or friend of long standing of the deceased can object the donation because they knew the deceased objected. However, evidence that satisfy a reasonable person to show that that the deceased objected must be produce. The feelings of the relative or friend cannot be relied on[72]. An opt-out system can be criticised as being unethical. England is a multicultural society. There are many who have strong views on what happens to their body on death and removing organs without explicit consent can run the risk of causing religious or cultural offence. Also, it is important to point out that in 1997 Brazil introduced an opt-out system which was repealed the following year due to people from all socioeconomic groups opting out in such numbers[73]. Therefore, it can be deduced that the current opt-in system is appropriate. Also, the assumption that the public will be sufficiently well informed about the system that any failure to register an objection suggest someone’s willingness to donate rather than lethargy or ignorance is the main basis for an opt-out system. Less educated or minority groups will be both less likely to consent to donation and less likely to understand how to opt-out and consequently would be obliged to donate.

CONCLUSION

To conclude, the law regulating consent for cadaveric and living donation differs in many ways. In regards of living donation, an individual

WORD COUNT:

BIBLIOGRAPHY

LEGISLATION

– ‘Human Tissue Act 2004’ (Legislation.gov.uk, 2017) <http://www.legislation.gov.uk/ukpga/2004/30> accessed 17 April 2017

– ‘Mental Capacity Act 2005’ (Legislation.gov.uk, 2017) <http://www.legislation.gov.uk/ukpga/2005/9> accessed 17 April 2017

– Human Tissue Act 2004 (Persons who Lack Capacity to Consent and Transplants) Regulations 2006< http://www.legislation.gov.uk/uksi/2006/1659/made> accessed 17 April 2017

– Family Law Reform Act 1969 < http://www.legislation.gov.uk/ukpga/1969/46> accessed 17 April 2017

– Children Act 1989 < http://www.legislation.gov.uk/ukpga/1989/41> accessed 17 April 2017.

– ‘Human Transplantation (Wales) Act 2013’ (2013) <http://www.legislation.gov.uk/anaw/2013/5/pdfs/anaw_20130005_en.pdf> accessed 17 April 2017

CASES

– F v West Berkshire Health Authority (1989) 2 All E.R. 454

– Re Y (Mental Patient: Bone Marrow Donation) (1996) F.L.R 791

– Re T (a minor) (wardship: medical treatment) (1997) 1 All ER 906

– Little v Little (1979) 576 S.W.2d 493

– Re W (Minor: Medical Treatment), 4 All ER 627 (C.A. 1992)

– Re W (A Minor) (Medical Treatment) 3 WLR 758(C.A. 1992)

– Gillick v West Norfolk and Wisbech Area Health Authority, AC 112 (1986).

– Quintavalle (on behalf of Comment on Reproductive Ethics) v HFEA (2005) UKHL 28

– AB v Leeds Teaching Hospital NHS Trust (2004) EWHC 644

ARTICLE

– Dworkin G, ‘THE LAW RELATING TO ORGAN TRANSPLANTATION IN ENGLAND’ (1970) 33 The Modern Law Review

– ‘WHO SHALL BE ALLOWED TO GIVE? LIVING ORGAN DONORS AND THE CONCEPT OF AUTONOMY’ (2017) <http://personal.bgsu.edu/~agichg/All2Give.pdf> accessed 14 April 2017

– ‘Healthcare Law: The Impact of The Human Rights Act 1998 – Irep – Nottingham Trent University’ (Irep.ntu.ac.uk, 2017) <http://irep.ntu.ac.uk/id/eprint/25065> accessed 17 April 2017

– Mudur G. Doctors take kidney from patient incapable of giving consent. BMJ 1999; 318: 753

– T M Wilkinson, ‘What’s Not Wrong with Conditional Organ Donation?’ (2003) 29 Journal of Medical Ethics <http://jme.bmj.com/content/medethics/29/3/163.full.pdf>.

– Cronin A and Douglas J, ‘DIRECTED AND CONDITIONAL DECEASED DONOR ORGAN DONATIONS: LAWS AND MISCONCEPTIONS’ (2010) 18 Medical Law Review <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2927926/>

– Liddell K, ‘Beyond Bristol And Alder Hey: The Future Regulation Of Human Tissue’ (2005) 13 Medical Law Review <https://oup.silverchair-cdn.com/oup/backfile/Content_public/Journal/medlaw/13/2/10.1093/medlaw/fwi012/3/fwi012.pdf?Expires=1492783538&Signature=akQp8z1tLtjEOeeeWzNQxnOdGIrT-25XimUL5YkycPKij9Uic-CDmj2JkLNUQS9AFUlAVMBefv2adQizuN0XWlpbS42WwrBdyPnIJKBZgISlK6dAheHsOIQ3qpczeqJZhwztDjkZhBvEi8LIk-TLFtOfx3HZXTrI8ncBPoAUauym54K6L4p2Edkfu4t-wFM87-CCzj7Ac9s1~TLC4G1c3aAJB6vHiPKQ2F-12f-VU25mBrMirNdDyte08OMJZnC5MjQb4V72QFo7RsrKkWG-vAt~k9h2UZN3Py~RnGE8VJWVMbgrLF-MtWz3ifpWSCNEb2cNAmwGH-V17mMqm5VWIA__&Key-Pair-Id=APKAIUCZBIA4LVPAVW3Q> accessed 17 April 2017

– Brazier M, ‘Organ Retention And Return: Problems of Consent’ (2003) <http://jme.bmj.com/content/29/1/30> accessed 17 April 2017

– Brazier M, ‘Retained Organs: Ethics and Humanity’ (2002) <http://onlinelibrary.wiley.com/doi/10.1111/j.1748-121X.2002.tb00668.x/abstract> accessed 17 April 2017

REPORT

– ‘Mental Incapacity’ (1995) <http://www.lawcom.gov.uk/wp-content/uploads/2015/04/lc231.pdf> accessed 17 April 2017

– World Health Organization (1994) http://apps.who.int/iris/bitstream/10665/59518/1/WHO_OCH_94.1.pdf accessed 16 April 2017

– House of Commons, ‘The Royal Liverpool Children’s Inquiry Report’ (Royal Liverpool Children’s Inquiry 2001)

– ‘An Investigation into Conditional Organ Donation’ (Department of Health 2000) <http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4035465.pdf> accessed 17 April 2017

– ‘Requested Allocation of a Deceased Donor Organ’ (Department of Health 2010) <http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/documents/digitalasset/dh_114803.pdf> accessed 17 April 2017

– ‘Directed Donation and Ownership of Human Organs’ (Durham Law School 2012) <http://dro.dur.ac.uk/9213/1/9213.pdf?DDC71+DDD19+dla0sdp+dul4eg> accessed 17 April 2017

BOOKS

– Jackson E, Medical Law (1st edn, Oxford Univ Press 2014)

– Stauch M and others, Text, Cases and Materials on Medical Law and Ethics (1st edn, Routledge 2012)

– Herring J, Medical Law and Ethics

– Pattinson, ‘Medical Law and Ethics’ (5^th Edn, 2017)

– Ross L, Children, Families, And Health Care Decision-Making (1st edn, Oxford University Press 2002)

– Lock M, Twice Dead (1st edn, University of California Press 2002)

– Taylor J, The Metaphysics and Ethics of Death (1st edn, 2013)

OTHER

– ‘About Donation’ (Organ Donation – English, 2017) <https://www.organdonation.nhs.uk/about-donation/> accessed 17 April 2017

– ‘Living Donation’ (Organ Donation – English, 2017) <https://www.organdonation.nhs.uk/about-donation/living-donation/> accessed 17 April 2017

– ‘Statistics About Organ Donation’ (Organ Donation – English, 2017) <https://www.organdonation.nhs.uk/supporting-my-decision/statistics-about-organ-donation/> accessed 14 April 2017

– ‘Register Your Details’ (Organ Donation – English, 2017) <https://www.organdonation.nhs.uk/register-to-donate/register-your-details/> accessed 17 April 2017

– ‘Questions and Answers – The Human Tissue Act 2004 – Health Research Authority’ (Health Research Authority, 2017) <http://www.hra.nhs.uk/resources/research-legislation-and-governance/questions-and-answers-the-human-tissue-act-2004/> accessed 17 April 2017.

[1] ‘About Donation’ (Organ Donation – English, 2017) <https://www.organdonation.nhs.uk/about-donation/> accessed 14 April 2017.

[2] ‘Living Donation’ (Organ Donation – English, 2017) <https://www.organdonation.nhs.uk/about-donation/living-donation/> accessed 12 April 2017.

[3] Emily Jackson, Medical Law (1st edn, Oxford Univ Press 2014).

[4] ‘Statistics About Organ Donation’ (Organ Donation – English, 2017) <https://www.organdonation.nhs.uk/supporting-my-decision/statistics-about-organ-donation/> accessed 14 April 2017.

[5] Marc Stauch and others, Text, Cases And Materials On Medical Law And Ethics (1st edn, Routledge 2012).

[6] Gerald Dworkin, ‘THE LAW RELATING TO ORGAN TRANSPLANTATION IN ENGLAND’ (1970) 33 The Modern Law Review.

[7] ‘Code Of Practice F: Donation Of Solid Organs And Tissue For Transplantation’ (Human Tissue Authority, 2017) <https://www.hta.gov.uk/sites/default/files/Code%20F%20-%20Organs%20for%20tx%20Final.pdf> accessed 17 April 2017.

[8] ‘WHO SHALL BE ALLOWED TO GIVE? LIVING ORGAN DONORS AND THE CONCEPT OF AUTONOMY’ (2017) <http://personal.bgsu.edu/~agichg/All2Give.pdf> accessed 14 April 2017.

[9] ‘Human Tissue Act 2004, section 6’ (Legislation.gov.uk, 2017) <http://www.legislation.gov.uk/ukpga/2004/30/section/6> accessed 17 April 2017.

[10] Emily Jackson, Medical Law (1st edn, Oxford Univ Press 2014).

[11] ‘Mental Capacity Act 2005, Section 24’ (Legislation.gov.uk, 2017) <http://www.legislation.gov.uk/ukpga/2005/9> accessed 17 April 2017.

[12] ‘Mental Capacity Act 2005’ (Legislation.gov.uk, 2017) <http://www.legislation.gov.uk/ukpga/2005/9> accessed 17 April 2017.

[13] ‘Mental Capacity Act 2005’ (Legislation.gov.uk, 2017) <http://www.legislation.gov.uk/ukpga/2005/9> accessed 17 April 2017.

[14] F v West Berkshire Health Authority (1989) 2 All E.R. 454

[15] ‘Mental Incapacity’ (1995) <http://www.lawcom.gov.uk/wp-content/uploads/2015/04/lc231.pdf> accessed 17 April 2017.

[16] Mudur G. Doctors take kidney from patient incapable of giving consent. BMJ 1999; 318: 753

[17] Re Y (Mental Patient : Bone Marrow Donation) (1996) F.L.R 791

[18] Marc Stauch and others, Text, Cases And Materials On Medical Law And Ethics (1st edn, Routledge 2012).

[19] Re T (a minor) (wardship: medical treatment) (1997) 1 All ER 906

[20] Human Tissue Act 2004, S. 33. <http://www.legislation.gov.uk/ukpga/2004/30/pdfs/ukpga_20040030_en.pdf> accessed 17 April 2017.

[21] Human Tissue Act 2004 (Persons who Lack Capacity to Consent and Transplants) Regulations 2006, R. 10(1). <http://www.legislation.gov.uk/uksi/2006/1659/pdfs/uksi_20061659_en.pdf> accessed 17 April 2017

[22]  ‘Code Of Practice F: Donation Of Solid Organs And Tissue For Transplantation’ (Human Tissue Authority, 2017) <https://www.hta.gov.uk/sites/default/files/Code%20F%20-%20Organs%20for%20tx%20Final.pdf> accessed 17 April 2017.

[23] Children Act 1989, S. 1(3). <http://www.legislation.gov.uk/ukpga/1989/41/section/1> accessed 17 April 2017.

[24] Little v Little (1979) 576 S.W.2d 493

[25] ‘Code Of Practice F: Donation Of Solid Organs And Tissue For Transplantation’ (Human Tissue Authority, 2017) <https://www.hta.gov.uk/sites/default/files/Code%20F%20-%20Organs%20for%20tx%20Final.pdf> accessed 17 April 2017.

[26] Family Law Reform Act 1969, S. 8. <http://www.legislation.gov.uk/ukpga/1969/46/pdfs/ukpga_19690046_en.pdf> accessed 17 April 2017

[27] Re W (Minor: Medical Treatment), 4 All ER 627 (C.A. 1992); Re W (A Minor) (Medical Treatment) 3 WLR 758(C.A. 1992).

[28] Gillick v West Norfolk and Wisbech Area Health Authority, AC 112 (1986).

[29] Pattinson, ‘Medical Law and Ethics’, p. 450.

[30] J. Herring, Medical Law and Ethics (Oxford: Oxford University Press, 2016), p. 453

[31] Quintavalle (on behalf of Comment on Reproductive Ethics) v HFEA (2005) UKHL 28

[32] ‘Code of Practice F: Donation Of Solid Organs And Tissue For Transplantation’ (Human Tissue Authority, 2017) <https://www.hta.gov.uk/sites/default/files/Code%20F%20-%20Organs%20for%20tx%20Final.pdf> accessed 17 April 2017.

[33] World Health Organization (1994)

[34] Garwood-Gowers (1999: 145)

[35] Lainie Friedman Ross, Children, Families, And Health Care Decision-Making (1st edn, Oxford University Press 2002).

[36] Garwood-Gowers (2001)

[37] House of Commons, ‘The Royal Liverpool Children’s Inquiry Report’ (Royal Liverpool Childrens Inquiry 2001).

[38] Gerald Dworkin, ‘THE LAW RELATING TO ORGAN TRANSPLANTATION IN ENGLAND’ (1970) 33 The Modern Law Review.

[39] AB v Leeds Teaching Hospital NHS Trust (2004) EWHC 644

[40] J. Herring, Medical Law and Ethics (Oxford: Oxford University Press, 2016)

[41] ‘Human Tissue Act 2004, Section 1’ (Legislation.gov.uk, 2017) <http://www.legislation.gov.uk/ukpga/2004/30/part/1> accessed 17 April 2017.

[42]  ‘Human Tissue Act 2004, Section 3’ (Legislation.gov.uk, 2017) <http://www.legislation.gov.uk/ukpga/2004/30/part/1> accessed 17 April 2017.

[43] ‘Register Your Details’ (Organ Donation – English, 2017) <https://www.organdonation.nhs.uk/register-to-donate/register-your-details/> accessed 17 April 2017.

[44] Organs for Transplantation : A report from the Organ Donation Taskforce (DH : London, 2008), <https://www.gov.uk/government/organisations/department-of-health> accessed 15 April 2017

[45] ‘Human Tissue Act 2004, Section 4’ (Legislation.gov.uk, 2017) <http://www.legislation.gov.uk/ukpga/2004/30/part/1> accessed 17 April 2017.

[46]  ‘Human Tissue Act 2004, Section 3’ (Legislation.gov.uk, 2017) <http://www.legislation.gov.uk/ukpga/2004/30/part/1> accessed 17 April 2017.

[47] ‘Human Tissue Act 2004, Section 27’ (Legislation.gov.uk, 2017) <http://www.legislation.gov.uk/ukpga/2004/30/part/2> accessed 17 April 2017.

[48] ‘Code of Practice F: Donation of Solid Organs and Tissue for Transplantation’ (Human Tissue Authority, 2017) <https://www.hta.gov.uk/sites/default/files/Code%20F%20-%20Organs%20for%20tx%20Final.pdf> accessed 17 April 2017.

[49] ‘Code of Practice F: Donation of Solid Organs and Tissue for Transplantation’ (Human Tissue Authority, 2017) <https://www.hta.gov.uk/sites/default/files/Code%20F%20-%20Organs%20for%20tx%20Final.pdf> accessed 17 April 2017.

[50] Margaret M Lock, Twice Dead (1st edn, University of California Press 2002).

[51] UK Transplant, ‘National Potential Donor 2011-12’

[52] UK Transplant, ‘National Potential Donor 2011-12’

[53] ‘Human Tissue Act 2004, Section 2’ (Legislation.gov.uk, 2017) <http://www.legislation.gov.uk/ukpga/2004/30/section/1> accessed 17 April 2017.

[54] ‘Human Tissue Act 2004, Section 5’ (Legislation.gov.uk, 2017) <http://www.legislation.gov.uk/ukpga/2004/30/section/1> accessed 17 April 2017.

[55] ‘An Investigation into Conditional Organ Donation’ (Department of Health 2000) <http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4035465.pdf> accessed 17 April 2017.

[56] T M Wilkinson, ‘What’s Not Wrong with Conditional Organ Donation?’ (2003) 29 Journal of Medical Ethics <http://jme.bmj.com/content/medethics/29/3/163.full.pdf>.

[57] A. J. Cronin and J. F. Douglas, ‘DIRECTED AND CONDITIONAL DECEASED DONOR ORGAN DONATIONS: LAWS AND MISCONCEPTIONS’ (2010) 18 Medical Law Review <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2927926/>.

[58] ‘Requested Allocation of A Deceased Donor Organ’ (Department of Health 2010) <http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/documents/digitalasset/dh_114803.pdf> accessed 17 April 2017.

[59] A. J. Cronin and J. F. Douglas, ‘DIRECTED AND CONDITIONAL DECEASED DONOR ORGAN DONATIONS: LAWS AND MISCONCEPTIONS’ (2010) 18 Medical Law Review

[60]  ‘Human Tissue Act 2004, Section 7’ (Legislation.gov.uk, 2017) <http://www.legislation.gov.uk/ukpga/2004/30/section/1> accessed 17 April 2017.

[61]  ‘Human Tissue Act 2004, Section 7’ (Legislation.gov.uk, 2017) <http://www.legislation.gov.uk/ukpga/2004/30/section/1> accessed 17 April 2017.

[62] ‘Questions and Answers – The Human Tissue Act 2004 – Health Research Authority’ (Health Research Authority, 2017) <http://www.hra.nhs.uk/resources/research-legislation-and-governance/questions-and-answers-the-human-tissue-act-2004/> accessed 17 April 2017.

[63] K. Liddell, ‘Beyond Bristol And Alder Hey: The Future Regulation Of Human Tissue’ (2005) 13 Medical Law Review <https://oup.silverchair-cdn.com/oup/backfile/Content_public/Journal/medlaw/13/2/10.1093/medlaw/fwi012/3/fwi012.pdf?Expires=1492783538&Signature=akQp8z1tLtjEOeeeWzNQxnOdGIrT-25XimUL5YkycPKij9Uic-CDmj2JkLNUQS9AFUlAVMBefv2adQizuN0XWlpbS42WwrBdyPnIJKBZgISlK6dAheHsOIQ3qpczeqJZhwztDjkZhBvEi8LIk-TLFtOfx3HZXTrI8ncBPoAUauym54K6L4p2Edkfu4t-wFM87-CCzj7Ac9s1~TLC4G1c3aAJB6vHiPKQ2F-12f-VU25mBrMirNdDyte08OMJZnC5MjQb4V72QFo7RsrKkWG-vAt~k9h2UZN3Py~RnGE8VJWVMbgrLF-MtWz3ifpWSCNEb2cNAmwGH-V17mMqm5VWIA__&Key-Pair-Id=APKAIUCZBIA4LVPAVW3Q>.

[64]House of Commons, ‘The Royal Liverpool Children’s Inquiry Report’ (Royal Liverpool Children’s Inquiry 2001).

[65] ‘Directed Donation and Ownership Of Human Organs’ (Durham Law School 2012) <http://dro.dur.ac.uk/9213/1/9213.pdf?DDC71+DDD19+dla0sdp+dul4eg> accessed 17 April 2017.

[66] J. Herring, Medical Law and Ethics (Oxford: Oxford University Press, 2016)

[67] M Brazier, ‘Organ Retention And Return: Problems Of Consent’ (2003) <http://jme.bmj.com/content/29/1/30> accessed 17 April 2017.

[68] ‘An Investigation Into Conditional Organ Donation’ (Department of Health 2000) <http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4035465.pdf> accessed 17 April 2017.

[69] James Stacey Taylor, The Metaphysics And Ethics Of Death (1st edn, 2013).

[70] Brazier M, ‘Retained Organs: Ethics and Humanity’ (2002) <http://onlinelibrary.wiley.com/doi/10.1111/j.1748-121X.2002.tb00668.x/abstract> accessed 17 April 2017

[71] Margaret Brazier, ‘Retained Organs: Ethics and Humanity’ (2002) <http://onlinelibrary.wiley.com/doi/10.1111/j.1748-121X.2002.tb00668.x/abstract> accessed 17 April 2017.

[72] ‘Human Transplantation (Wales) Act 2013’ (2013) <http://www.legislation.gov.uk/anaw/2013/5/pdfs/anaw_20130005_en.pdf> accessed 17 April 2017.

[73] Emily Jackson, Medical Law (1st edn, Oxford Univ Press 2014).