This paper explores difficulties around consent in the context of organ retention and return. It addresses the proposals of the Independent Review Group in Scotland on the Retention of Organs at Post Mortem to speak of authorisation rather than consent. Practical problems about whose consent determines disputes in relation to organ retention are explored. If a young child dies and his mother refuses consent but his father agrees what should ensue? Should the expressed wishes of a deceased adult override the (...) objections of surviving relatives? The paper suggests much broader understanding of the issues embedded in organ retention is needed to provide solutions which truly meet families' and society's needs. (shrink)

Refusal of organ donation is common, and becoming more frequent. In Australia refusal by families occurred in 56% of cases in 1995 in New South Wales, and had risen to 82% in 1999, becoming the most important determinant of the country's very low organ donation rate .Leading causes of refusal, identified in many studies, include the lack of understanding by families of brain death and its implications, and subsequent reluctance to relegate the body to purely instrumental status. It is an (...) interesting paradox that surveys of the public continue to show considerable support for organ donation programmes—in theory we will, in practice we won't .In this paper we propose that the Australian community may, for good reason, distrust the concept of and criteria for “whole brain death”, and the equation of this new concept with death of the human being. We suggest that irreversible loss of circulation should be reinstated as the major defining characteristic of death, but that brain-dead, heart-beating entities remain suitable organ donors despite being alive by this criterion. This presents a major challenge to the “dead donor rule”, and would require review of current transplantation legislation. Brain dead entities are suitable donors because of irreversible loss of personhood, accurately and robustly defined by the current brain stem criteria."Even the dead are not terminally ill any more.". (shrink)