Medical Treatment: Decisions and the Law

16. Human Organ and Tissue Donation


The ability to transplant organs and other tissue to patients has dramatically transformed the life expectancy and quality of life of many patients. An increasing range of procedures has now become possible, from heart transplants to ‘face’ transplants. The success of such procedures brings with it an ever-increasing demand for organs and tissue and, inevitably, a shortage. Understandably, this has led to continual challenges to the legal   and ethical boundaries of what is permissible. While animal  organs  and tissue can, in some circumstances, be used, in principle such procedures may be considered in the context of any other, more routine, form of medical treatment and raise the same issues of consent and propriety. Accordingly,   no separate consideration is given to those issues in this chapter. Organs and tissues obtained from human beings, whether living or dead, raise special issues which are considered here. These issues principally concern the means by which organs and tissue are obtained and cross the boundaries of life and death. Thus the use of organs taken from a dead person may be governed by decisions made by that person before his death. Questions may arise as to what may or should be done to prepare a donor’s organs for donation in anticipation of death. After death, disputes may occur as to the storage and use of organs or tissue. Above all, there is a need for as much legal clarity as possible so that doctors, other medical staff, potential donors and their families can feel confident in the process. Failing this, there is a danger that the supply of tissues and organs will diminish rather than increase. This chapter looks specifically at the legal requirements for organ donation and transplantation in England. The principal legislation, the Human Tissue Act 2004, also governs the donation and use of human tissue for other purposes, such as research and anatomical display, but these are beyond the scope of this book. Necessarily this chapter focuses on the process of organ donation, as the transplant of organs and tissue into a recipient is covered by the general legal principles governing consent to medical treatment dealt with elsewhere in this book.


Organ and tissue transplantation raises issues of considerable social and ethical concern and there is an understandable demand for regulation and the outlawing of unacceptable practice. Rapid advances in what is technically and clinically possible in this field mean that the law is always in danger of being left behind. The perceived shortage of willing organ donors has increased pressure to ease the requirement of consent, to review the prohibition of ‘selling’ organs, and to find new ways of obtaining organs as quickly as possible after the death of the donor. This in turn has led to a reconsideration of the means of diagnosing death. It is no coincidence that the Human Tissue Authority issued revised Codes of Practice within five years of the publication of the first version. Such demands mean that this is an area of law which is likely to be the subject of increasing court scrutiny. However the fundamental tenet of the law in this area is, and has to remain, consent along with the right of an individual to decide for himself what is done with his organs and tissue while alive, and to his body after death. The function of the law is to protect respect for that autonomy and to prevent abuse and exploitation of the vulnerable.


  • A Introduction  16.1
  • B The common law  16.2
  • C The Human Tissue Act 2004 16.3
  • Donations by living persons  16.8
    • Types of living organ donation 16.9
    • Activities authorised by the Act 16.11
    • Consent  16.12
      • The Act 16.13
      • Appropriate consent and the Codes 16.13
    • Incompetent adults  16.14
    • Children  16.15
    • Best interests  16.16
    • Approval by the Human Tissue Authority 16.17
    • Types of donations by living donors 16.18
    • Consent – children  16.19
    • Consent – adults 16.20
  • Preservation of organs after death 16.21
  • Preparatory steps taken before death 16.22
  • D Conclusion  16.23

updates and appendices will be provided for this chapter in due course

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