Children Competency and donor's prior declaration:

Commentary on Morioka

- Alireza Bagheri, M.D.
Institute of Medical Sciences, University of Tsukuba, Japan
Email: bagheri@sakura.cc.tsukuba.ac.jp
Eubios Journal of Asian and International Bioethics 11 (2001), 195-6.


Professor Morioka is one of the most prominent scholars in Japan and seriously concerned with improving Japanese Organ Transplantation Law. In this commentary his proposal concerning "donors' prior declaration and organ removal from children under 15 years" is discussed.

Morioka and Sugimoto propose the revision of the part of the Japanese Organ Transplantation Law related to organ removal from brain dead child donors under 15 years. In proposal A, they said; "both donors' prior declaration and prior consent of persons with parental authority are necessary for legal brain death diagnosis and organ removal from a brain dead child between 12 and 15 years. If the child is between 6- 12 years, in addition to the above conditions the supervision of the hospital's ethics committee or the court is necessary. Furthermore organ removal from a brain dead child under 6 years should not be permitted".

In the second option (proposal B) they considered donors' prior declaration plus prior consent of persons in parental authority for children between 12 and 15 years and for children under 12 years neither legal brain death diagnosis nor organ removal is permitted.

In fact they want to extend the current organ transplantation Law in Japan to apply to some children under fifteen.

After reading the article thoroughly one can find out that some points are still not clarified.

The first unclear point in the proposals is what the basis for the " age grouping " such as 12-15, 6-12 and under six years? Were physiological, psychological maturity or legal age criteria used?

Taking into consideration the fact that the term of legal age in Japan differs case to case, for instance, the legal age for voting( 20y), marriage(16y for girl and 18y for boy) and driving license (18y) is not the same. None of these ages are under fifteen .

Morioka has mentioned the United Nations ( convention on the Rights of the child , that children have the right to express their opinion and that adults are obliged to hear children's voices).

I totally agree with the authors that "the children under six lack the ability to express their will consistently" ( 2), but paying attention to the proposal A, I am wondering whether a seven year old child is competent and able to understand the meaning of life, brain death situation as well as "Pluralism in human death", in order to declare his or her informed consent to organ donation.

The same discussion is also raised for obtaining informed consent in research involving "legally incompetent minor" subjects. In that case some international ethical codes in research like Helsinki Codes suggested that the consent can obtained from the legally authorized representative in accordance to applicable law (3 ).

A further point is if the authors insist on support for the child that needs to receive an organ for saving his or her life, then why does he ignore proposal A and says either proposal A or B should be included in the revised text, in other words, the exclusion of organ removal from children under 12 years, in proposal B.

What is the reason for this exclusion? Do the authors realise that the children under 12 years old are NOT competent to understand such a complicated subject and not able to sufficiently express their opinion? On the other hand are the authors sure that the children between 12-15 are competent? How is it possible to prove the competence of the children between 12- 15 years?

He also criticizes other proposals, for example, the proposal for legislation that enables organ removal from "living brain dead donors". Although in this proposal too, the donor's prior declaration and family consent are necessary, he believes for example, when the heart is removed, the patient dies from the procedure.

In fact, whether or not patients believe brain death is death itself or patients that don't believe brain death is really death, when the heart is removed the same result will occur, i.e. the cessation of cardiopulmonary activity. The donors can therefore be named either "Living brain death donors " or " Legal brain death donors".

Finally it seems to me the scholars in this field spend more time on the definition of death and brain death, theoretically instead of focusing on the two following facts :one, is the necessity of organ transplantation in order to save other's live. The second is the " irreversibility " of the brain death situation because of the lack of a cure which unfortunately leads to death, sooner or later, whether the organs are removed for saving another life or not.

References

1. Morioka, M. and Sugimoto, T. " A proposal for revision of the organ transplantation law based on a child donor`s prior declaration" , EJAIB 11: 108-10.

2. Morioka, M. "Reconsidering brain death,a lesson from Japan`s fifteen years experience." HCR 31 (July 2001):41-46.

3. Article 24, World Medical Declaration of Helsinki,52nd WMA General Assembly, Edinburgh, Scotland, October 2000.


Reply by Morioka
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