Gilles Genicot

Living Organ Procurement from the Mentally Incompetent: The Need for More Appropriate Guidelines

With the case of Belgium as a negative example, this paper will evaluate the legitimacy of using mentally incompetents as organ sources. The first section examines the underlying moral dilemma that results from the necessity of balancing the principle of respect for persons with the obligation to help people in desperate need. We argue for the rejection of a radical utilitarian approach but also question the appropriateness of a categorical prohibition. Section two aims to strike a fair balance between the competing interests at stake and to define the conditions under which organ harvest from mentally incompetents might be morally acceptable. To this end, we morally assess the main requirements that have been put forward to allow organ removal from incompetent donors. We conclude that the current Belgian legislation is far too permissive and that national regulations that do not permit the harvest of non-regenerable organs from mentally incompetents in exceptional circumstances are too restrictive. On the basis of this discussion, we propose a number of guiding principles for decision-making in this area.

Using mentally incompetent adults as living organ donors: widely diverging regulations in Europe

With the current situation in Belgium as its initial focus, this article will examine the regulatory framework that governs the use of mentally incompetent adults as living organ donors in Europe. Our survey of the national regulation of 22 countries will reveal widely diverging viewpoints, ranging from an absolute prohibition on organ procurement to a barely restricted authorisation to retrieve even non-regenerable organs. We also have a look at the way in which American and English court decisions have applied the best interests standard in an attempt to define the contours of acceptable organ removal from mentally incompetent donors. Taking the best interests of the mentally incompetent person as a yardstick, we suggest that legally prohibiting organ removal from mentally incompetents may be problematic, even if it concerns only non-regenerable organs, and that regulations should be refined accordingly.

Living Tissue and Organ Donation by Minors: Suggestions to Improve the Regulatory Framework in Europe

Whether living tissue and donation by minors is acceptable is the subject of considerable debate. In view of the vulnerable position of minors, the risks involved in the medical procedure, and the possible conflict of interests on the part of the parents, the legal approach in Europe has traditionally been very restrictive. However, this approach may raise concerns when a situation would arise where donation by a minor would still be in that person’s best interests. Moreover, a very restrictive approach may be difficult to reconcile with the requirement to give due weight to the views of minors in accordance with their age and maturity. In the light of these considerations, this article examines whether there is room to improve the way in which living tissue and organ donation by minors is currently regulated across Europe. We first sketch the debate about the acceptability of using minors as living donors and explore its potential clinical need. Subsequently, we assess whether international legal instruments and guidelines offer any guidance to address the issues raised. This is followed by an analysis of the legal situation in the United States. Finally, we examine in detail the legal situation in Europe. To that aim, relevant regulations were compiled, translated, and analyzed in close cooperation with national legal experts. By way of conclusion, we compare the legal approach followed in the great majority of European countries with the one preferred in the United States and make suggestions to amend European transplant regulations to better protect the interests of minors.