8 Organ Donation (Presumed Consent and
Safeguards) Bill
| Date introduced to the House of Commons
Current Bill Number
Previous Reports
| 3 February 2004
House of Commons 47
None
|
8.1 This is a Private Members' Bill introduced by Siobhan McDonagh
MP, similar to other Bills introduced in the 2001-02 Session,
initially by Tom Watson MP, and later by Cheryl Gillan MP. The
Bill provides for a presumption that a person aged 17 or over
has consented to have his or her organs used for transplantation
after death, unless—
— the person has previously registered
an objection in an official register, or
— the hospital or other institution in
which the person dies is satisfied on information provided by
the persons family, that he or she had expressed an objection
to donation; or
— proceeding with a donation would cause
distress to the deceased's immediate family. (clause 1)
8.2 The Bill provides that no organs must be removed
unless two independent medical practitioners have satisfied themselves
that the person is dead (clause 3). This is to be judged in accordance
with the definition contained in clause 4, including through brain
stem tests carried out in accordance with standards set by the
Conference of Royal Colleges.
8.3 We reported in similar terms to this, regarding
the previous versions of the Bill that in regard to a matter such
as the criteria for brain stem tests, which engage the right to
life (Article 2 ECHR) as well as the freedom from inhuman or degrading
treatment (Article 3 ECHR) it was unusual to delegate responsibility
to a body not responsible to Parliament.[153]
We reiterate our view that the absence of Parliamentary accountability
omits what may be a significant safeguard in the protection of
Convention rights.
8.4 The Bill would also engage the Article 8 rights
to respect for private life of a person whose organs may in the
future be removed, after death, without his or her consent. The
ECtHR has held that a person's wishes as to his or her burial
after death engage Article 8.[154]
In our view, the presumption of consent is unlikely to constitute
a proportionate interference with Article 8 rights unless regulations
make provision for people to be informed of the presumption, and
provided with an opportunity to object to its application to them.
The Article 8 right to respect for private life of family members
of a person whose organs are to be removed would also be in issue,
although the safeguards in clause 1 of the Bill are likely to
ensure that they are not disproportionately interfered with. The
right of family members to manifest a religious belief may also
be in issue,[155] but
safeguards in the Bill should adequately ensure the protection
of this right. We draw this matter to the attention of both
Houses.
153 For our comments on the Organ Donation (Presumed
Consent and Safeguards) Bill 2001-02, and the Organ Donation (Presumed
Consent and Safeguards)(No.2) Bill 2001-02, see our Twenty-sixth
Report of Session 2001-02, Scrutiny of Bills: Final Progress
Report, HL Paper 182, HC 1295. Back
154
X v Germany 24 DR 137, where the obligation to be buried
in a cemetery rather than on the applicant's own land engaged
article 8, though it did not engage the right to manifest beliefs
under Article 9 ECHR. Back
155
In Re Crawley Green Road Cemetery, Luton [2001] WLR 1175 Back
| 
