Abstracts
| Date | 01 December 1969 |
| Published date | 01 December 1969 |
| DOI | 10.1177/000486586900200418 |
| Subject Matter | Abstract |
254 AUST. &N.Z. JOURNAL OF CRIMINOLOGY (Dec., 1969): 2, 4
Abstracts
The Law Relating to Organ Transplants
(1969) Burton, A. W. Med.J.Aust. i 473-
482
THE author begins by quoting acomment
by Mr. R. K. Fullagar, Q.C.,
that
"After
considerable research I have concluded
that the law relating to this subject does
not exist" and then adds his own con-
clusion that
"It
is
true
that
in all the
common law countries there is a remark-
able paucity of decided cases with
the
slightest relevance to the serious social
and legal issues which have become
apparent since major organ transplantation
has taken its place over
the
past few years
as an established method of medical treat-
ment. Nevertheless, it seems clear
enough
that
any surgeon carrying
out
these procedures does so at his peril if
common law principles alone
are
to be
relied upon".
The first
part
of the article considers
the common law position under
the
two
headings: "Living Donors" and "Cadaver
Transplants". The position at common law
is summarised as follows:
1. It is unlawful to remove an organ for
transplant from a living infant donor,
and this is so despite consent from
infant and guardian.
2. There is some doubt whether it is
lawful to remove amajor organ for
transplant from a living adult donor.
3. In determining
the
legality of any such
operation, it seems certain
that
acourt
would require very clear evidence
that
the donor was fully informed of
the
nature and consequences of
the
opera-
tion and
that
the
consent given was
free from undue influence of any kind.
4. There is no property in a dead body,
and therefore atestator may not be-
queath his body for transplant purposes.
5. A dead body is not altogether ares
nuilitus, since a limited right to posses-
sion vests in certain persons who have
aduty to dispose of
that
body. In
the
brief time available to carry out a
transplantation procedure, it is impos-
sible to ascertain
the
person who has
the common law right to possession of
the body from which the donor organ
is to be taken.
6. In most cases, suitable cadaver donors
will come under
the
jurisdiction of the
coroner, whose consent to remove
organs must be obtained.
7. A homicide charge may conceivably lie
against the surgeon if a recipient dies
in the course of or immediately follow-
ing a heart transplant operation.
The author
next
considers "Statutory
Control" as "if
the
common law alone is
to be relied on, it is not possible for a
surgeon to carry out a major organ trans-
plant without breaking -the law in
one way or another. Therefore all
the
common law countries have legislated in
attempts to overcome
the
difficulties which
have been enumerated". The various
enactments are considered and in par-
ticular the Victorian
Medical
(Organ
Transplant)
Act
1968 and the
draft
Uniform
Anatomical
Gift
Act
of the
United States, which was approved on
July 30th, 1968, by the National Conference
of Commissioners on Uniform State Laws,
and subsequently by the House of
Delegates of both
the
American Bar
Association and
the
American Medical
Association. It is suggested
that
both
the
Uniform Act and the Victorian Act are
concerned exclusively with
the
use of the
cadaver organs and make no attempt to
clear up the legal problems associated
with the use of living donors. Although
the
Victorian Act is seen as an improve-
ment on previous enactments in
the
other
Australian States it is recognized
that
it
still has a number of imperfections. In
addition,
the
author states
that
"There is
need for uniformity in this country, as in
the United States, and there is also need
for continuing review to ensure
that
the
law does not lag too far behind medical
progress".
The Abortion Debate (1969) Editorial.
Med.J.Aust. ii 833-4
THIS editorial introduces two papers on
the subject of abortion published in the
same number of
the
Journal: "The Case
for Abortion Law Reform," by Bretherton,
R. C., and "The Abortion Act, 1967, of
the United Kingdom," by Smithurst, B. A.
The Editorial makes
two
main points, the
first of which is
"that
it is not the pre-
rogative of the medical profession as such
to determine
the
moral standards of the
community or to frame the laws govern-
ing those standards". The second point
made is
that
"the
community cannot fairly
impose upon a doctor as a professional
duty acourse of action
that
is repugnant
to his personal conscience or seriously at
variance with his professional
judgement-
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