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Organ Transplantation

Controversial Issues

Organ transplants generate increasingly vexing legal and ethical questions as medical technology becomes more complex. Three controversial issues surrounding the subject are conception for organ donation, donor consent, and transplants from terminally disabled INFANTS.

In some instances, a child is conceived expressly for the purpose of using her organs for transplantation in another person, usually a blood relative. In 1990, for example, a California couple gave birth to a child they had conceived solely in hopes that the baby's bone marrow cells would save the life of their teenage daughter, who was dying of cancer. Although the legality of such conceptions was not challenged, the practice raised ethical questions relating to who may give informed consent for the donor child and whether such a practice may be considered CHILD ABUSE.

The problem of donor consent arose in lawsuits seeking to compel persons to donate organs to relatives. For example, in 1990, an Illinois family with a son who had leukemia brought a lawsuit seeking to compel the boy's half sister and half brother to submit to preliminary medical tests that would have established their suitability to serve as bone marrow donors. A judge, noting the objections of the mother of the half siblings, ruled that such tests would be an invasion of the potential donors' right of privacy. The Illinois Supreme Court later upheld this ruling (Curran v. Bosze, No. 70501 [Ill. filed Dec. 20, 1990]). In its opinion, the court outlined three critical factors in determining the best interests of the donating child: (1) the consenting parent must know the inherent risks and benefits of the procedure, (2) the primary caretaker of the child must be able to provide emotional support, and (3) there must be an existing, close relationship between the donor and the recipient.

The issue of organ donations made by terminally disabled infants came to national attention in 1992 when a Florida couple sought to have the organs of their anencephalic baby, Theresa Ann Campo Pearson, donated for use by other newborns. Anencephaly is a rare and always fatal gestational disorder in which the brain develops a stem, or lower brain, but not a cortex, or upper brain. Though the rest of the anencephalic infant's body is healthy, the disorder causes the child to die soon after birth. Theresa Ann's mother and father sought to have her declared brain dead, but a judge stated that under Florida statutes, a declaration of brain death may be made only if activity in all parts of the brain has ceased (Fla. Stat. ch. 382.009 [1992]). The judge noted that Theresa Ann had lower-brain activity. She died ten days after birth, without having donated her organs.

Critics of this decision argued that because anencephaly is always fatal, the organs of children with this disorder should be used to save other children. Supporters note that if an exception were made for anencephaly, other severely DISABLED PERSONS might be inappropriately targeted as a source for organs. Others argue that the life of one child, no matter how brief or unsatisfactory, cannot be taken to save another.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Ordinary resolution to Patients' Rights - ConsentOrgan Transplantation - Organ Shortages, Organ Procurement: Is It Better To Give Or To Sell?, Controversial Issues