Organ donation after euthanasia has been performed more than 40 times in Belgium and the Netherlands together. Preliminary results of procedures that have been performed until now demonstrate that this leads to good medical results in the recipient of the organs. Several legal aspects could be changed to further facilitate the combination of organ donation and euthanasia. On the ethical side, several controversies remain, giving rise to an ongoing, but necessary and useful debate. Further experiences will clarify whether both procedures should be strictly separated and whether the dead donor rule should be strictly applied. Opinions still differ on whether the patient's physician should address the possibility of organ donation after euthanasia, which laws should be adapted and which preparatory acts should be performed. These and other procedural issues potentially conflict with the patient's request for organ donation or the circumstances in which euthanasia (without subsequent organ donation) traditionally occurs.
- Donation/Procurement of Organs/Tissues
- Legal Aspects
- Dead donor rule
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In Western Europe, there is growing acceptance that a person who is unbearably suffering should be enabled to die in a dignified way.1 In contemporary medical practice, euthanasia is legally only allowed in Belgium, the Netherlands, Luxembourg and Colombia.
Organ transplantation is a lifesaving medical treatment for patients with organ failure, which provides survival benefit with improved quality of life.2 However, a persisting discrepancy between the number of organ donors and the number of patients on the waiting lists for transplantation is observed. In 2015, 1694 patients were registered on the waiting list for organ transplantation in the Netherlands, while 852 postmortem organs were donated.3 In Belgium, on 1 January 2016, 1288 patients were on the waiting lists, while 1091 organs were donated in 2014.4 Fortunately, a rise in the number of registered organ donors is being observed over the years.
After the first case of organ donation after euthanasia in Belgium in 2005, allocation of donor organs after euthanasia within the Eurotransplant region was considered acceptable in 2008.5 A prerequisite put forward by the Belgian centres was that allocating these organs would only be an option in countries where euthanasia is legally possible, provided that this information is communicated to the transplant centre, and under the condition that both euthanasia and organ donation are separated as much as possible. Therefore, organs from donation after euthanasia are currently only transplanted in Belgium and the Netherlands. The fact that combinations of euthanasia and organ donation have already been performed does not necessarily create justification for it. In published Belgian articles about this procedure, patients were between 44 and 62 years old, and most patients were suffering from a stroke or multiple sclerosis.6
In the Netherlands, several patients who underwent euthanasia became organ donors, but so far only one patient, suffering from a neurodegenerative disease, has been described in scientific literature.7 Euthanasia was performed by his general practitioner in an intensive care department. As of December 2015, organ donation after euthanasia has reportedly been performed 15 times in the Netherlands (unpublished data).
Next to that, transplant coordinators in Belgium and the Netherlands notice a contemporary trend towards an increasing willingness and motivation to undergo euthanasia and to subsequently donate organs as well (personal communication), supported by the increasing number of publications in popular media on this topic.
It should be acknowledged that since malignancy is a contraindication for organ donation, only a small—but still substantial—percentage of people who undergo euthanasia is eligible for organ donation.8 Of the 5306 times euthanasia has been performed in the Netherlands in 2014, in 1418 patients, suffering was not caused by malignancy.9 In Belgium, in 2013, 1807 patients underwent euthanasia, of which 565 patients did not suffer from malignancy.10 The number of potential donors becomes smaller when other contraindications than malignancy are also taken into account.
This article explores the legal and ethical requirements and boundaries of organ donation after euthanasia in Belgium and the Netherlands. Since different ethical approaches to this topic exist, the authors have attempted to weigh relevant viewpoints, either sympathetic with, or opposing to the idea of organ donation after euthanasia in this article. The theoretical possibility of organ donation after assisted suicide will be touched upon briefly.
Legal aspects of euthanasia and organ donation in Belgium and the Netherlands
Belgian law on euthanasia
According to the Belgian Euthanasia Act, a physician can be held accountable but is not criminally liable or responsible for performing euthanasia on a mentally competent person if this person requests this voluntarily, deliberately and repeatedly, and when the patient is in a medically hopeless condition and experiencing constant and unbearable physical or psychological suffering.11 The physician should inform the patient adequately about the available treatment options and should make sure that another independent physician is consulted.
If the patient is ill, but when he is not expected to die within the near future (terminally ill), a third physician, with specific expertise regarding the condition from which the patient suffers, needs to consult the patient, and a period of at least 1 month between the request for euthanasia and the euthanasia procedure itself has to be respected.
After euthanasia has taken place, the resulting death can be classified as a natural death, as formulated in Article 15 of the Euthanasia Act, thereby waiving the necessity to inform the public prosecutor or coroner. The performing physician fills out the patient's death certificate and sends a report to the federal monitoring and evaluation committee for euthanasia within 4 days. That authority will assess whether the procedure has been correctly performed.
Dutch law on euthanasia
In 2002, euthanasia was codified in the Netherlands. Physicians are excluded from criminal liability if they have met the requirements of the Law on Euthanasia and have subsequently reported death by euthanasia to the municipal coroner.12 ,13
Article 2 of the Dutch Euthanasia Act requires that predefined due diligence requirements have to be fulfilled regarding euthanasia. The patient's request must be to undergo euthanasia. He should do this voluntarily and well considered, while being well informed. The patient should be hopelessly and unbearably suffering, and other reasonable solutions should be non-available. In this process, a second independent physician should be consulted. The euthanasia procedure should be carried out ‘carefully’, according to the latest standards.
In the Netherlands, euthanasia is considered a non-natural death. The Burial and Cremation Act provides that, when a patient dies from non-natural causes and wants to be a donor, consent from the public prosecutor for release of the body and organ donation has to be obtained. The municipal coroner and public prosecutor are informed in advance and should be available periprocedurally to facilitate immediate release of the body. Another possibility is to obtain formal permission for the donation procedure from the public prosecutor beforehand. In that case, the municipal coroner can choose to perform an autopsy after the organs have been removed.
The municipal coroner informs the regional euthanasia review committee, which then investigates whether the procedure was legitimate. He also fills out an ‘Article 10’-form regarding death caused by a non-natural cause, which he hands over to the public prosecutor afterwards.
Belgian law on organ donation
In Belgium, there is a presumed consent (opt-out) system for organ donation. Anyone who is registered in the population register or who has been registered in the foreigners register for more than 6 months is eligible for organ donation after death in Belgium. The physician should verify that the donor has not expressed objection to organ donation, which requires consultation of the National Registry and discussing this with the relatives. In the National Registry, a declaration about one's donation preference can be registered, which can be a confirmation of a positive registration or a negative registration in case of an objection.
When a patient is determined dead on the basis of either circulatory or neurological criteria, the treating physician is legally allowed to remove his organs for transplantation. In case of donation, three non-treating physicians, who are not involved in the transplantation procedure, should independently determine death. The law explicitly states that relatives should be enabled to say farewell to the deceased as soon as possible after the donation procedure.14
Dutch law on organ donation
In the Netherlands, there is an opt-in system, so that residents can actively decide whether they want to be an organ donor or not. At the age of 18 years, they receive a written request to register with the Donor registry.
Dutch inhabitants have the possibility to choose between ‘Yes, I want to be a donor’ or ‘No’, or to ‘leave the decision to a family member’ or to another specific individual. If a person is not registered, his relatives will have to decide whether they consent with or object to organ donation.
In the context of organ donation after euthanasia, the right of self-determination is a paramount ethical and legal aspect. It is the patient's wish and right to die in a dignified way, and likewise his wish to donate his organs is expressed. Organ donation after euthanasia enables those who do not wish to remain alive to prolong the lives of those who do, and also—compared with ‘classical’ donation after circulatory death—allows many more people to fulfil their wish to donate organs after death.15 This differs from the more common donation scenario, where relatives have to decide, often without knowing the patient's wish.
In a majority of cases, patients choose to die through euthanasia at home, where no other professionals than the performing physician are present or involved.10 ,16 After the physician has determined death, relatives have an extensive opportunity to say farewell to the deceased. When combining organ donation and euthanasia, the patient needs to be hospitalised when the physician administers the euthanasia drugs, facilitating optimal organ recovery and optimising transplantation success of these organs. It can be envisaged that it would be more difficult for the patient and his relatives to spend their last hours together in this ‘cold’ environment. More importantly, after the physician has determined death, the patient has to be transported to the operating room immediately. The patient's relatives are informed that they should say goodbye to their beloved person before the euthanasia drugs are being administered, since time between death and organ donation should be minimised.
This could be considered an extra burden for patients who are already suffering unbearably and contributes to the emotional burden of the relatives as well. Practice from Belgium as well as the Netherlands has, however, demonstrated that patients who have deliberately chosen for this combination do not experience this as an obstacle, and relatives appear very supportive of the patient's last wish despite the potential extra burden. It should be underscored that it is beyond dispute that relatives need to be adequately preinformed, and that there should be sufficient support for them as soon as the deceased is being transported to the operating room as well.
Even though both countries allow euthanasia in children (in the Netherlands only in minors over 12 years of age), it is assumed that organ donation after euthanasia will not be performed in this age category. Euthanasia in minors has only been performed a few times in the Netherlands and—as far as the knowledge of the authors reaches—not at all in Belgium. In the reported cases, the minors suffered from malignancy, which makes them unlikely to be eligible for organ donation.
The physician's dilemma
The treating physician of a patient meeting the due diligence requirements for euthanasia, without contraindications for organ donation, is confronted with a dilemma. Informing a patient about the possibility of organ donation after euthanasia could put a lot of social pressure on the patient, since he could feel pressed to consent. It could potentially even cause a breach of trust with the treating physician, and one might get the impression that the physician is only willing to perform euthanasia because the patient will donate organs.
Not mentioning the option of organ donation may give rise to frustration among relatives when the existence of such possibility is brought to their attention after euthanasia. This could also be, given the Hippocratic Oath, considered as a conflict with the (weak) moral obligation of a physician to help those in need of an organ.
A Dutch physician who is confronted with this dilemma should, according to the authors, consult the Donor Registry. In case of a positive registration as a potential organ donor, there is no formal objection to discuss the matter with the patient, using this registration as a basis for discussion. Even when confronted with a refusal for organ donation or no registration at all, the physician could still decide to discuss this topic with the patient, since the changed circumstances in the current phase of life might have changed the patient's opinion. The patient could be very relieved discovering the existence of this option and receiving the possibility to give meaning to his or her own suffering, by potentially relieving the suffering of others.
Not all clinicians are convinced that it would be (ethically) appropriate to inform a patient about the existence of such combined procedure. It is perhaps feared that striving for organ donation may compromise the correct application of the euthanasia procedure. This is why organisations focusing on dignified end of life have developed a brochure to indirectly inform people on the possibility of organ donation after euthanasia.
Preparatory acts regarding organ donation
From a transplantation perspective, diagnostic tests are necessary and unavoidable to ascertain and preserve the quality of the organs. The Dutch Law on Organ Donation provides the possibility to examine a potential donor and the quality of his organs, when it is certain that the patient will die within a so-called ‘limited period of time’.17 As long as these examinations do not interfere with the medical treatment of the patient, physicians can prepare and perform measures that are deemed necessary to prepare for transplantation.
The Belgian Law on Organ Donation neither mentions preparatory measures, nor does the Law on Patients' Rights prohibits it. This provides a physician with the possibility to investigate the donor's organs and also with more opportunities to make organs suitable for transplantation. As opposed to the Netherlands, Belgian physicians can administer heparin to the patient.18 ,19 It is their opinion that, as it is certain the patient will die because of the euthanasia drugs, administering heparin does not ‘harm’ the patient. Current Dutch opinion is that it is unethical to ‘treat’ the patient to keep his organs in good condition. It is argued that a physician can only act in favour of the patient (and not in favour of the recipient), a point of view that can also be found in the Dutch legislation concerning medical treatment.20
Under these circumstances, it can be seen as an advantage that—in contrast to a normal donation procedure where a patient is often unconscious—the physician is able to discuss preparatory acts with the patient. It is still a matter of debate to which extent the patient may agree with ‘extensive donor management’ like preparatory investigations and administration of heparin, anticipating donation after euthanasia. Other advantages of organ donation after euthanasia are the possibility for the patient to discuss this topic with his relatives, and that the patient's organs can be matched beforehand, even though it is still a question whether the patient should be informed about these results and when the recipient should be informed about a possible donor organ.
Organ donation after assisted suicide
Shaw previously reported on the possibility of organ donation after assisted suicide in Switzerland.21 He reasoned that 50% of all people who choose physician assisted death could donate their organs by undergoing assisted suicide in a non-medical environment, followed by immediate transport by ambulance to the hospital's operating room. Although theoretically feasible, this seems unlikely to result in organs viable for transplantation. It is unclear how long the death process will take and what kind of impact it will have on the patient's organs and tissues. Low blood pressure and/or saturation could harm the organs, making them unfit for donation.
The Dutch Model Protocol on postmoral organ and tissue donation mentions a time frame of maximum 30 min between circulatory death and preservation of the abdominal organs. It is unlikely that the process will be completed within this time frame.
The estimation Shaw makes about the possible impact on the waiting lists can be nuanced, since many people who commit assisted suicide suffer from malignancy, which makes it impossible to donate organs.10 ,16 Next to that, age limits for donating certain organs apply.
Improving the legal framework
In the Netherlands, future acceptance of euthanasia as a natural death could perhaps further facilitate the combination with organ donation, even though the procedure should then still be investigated by the regional review committees. It should, however, be acknowledged that this cooperation in current practice is most commonly optimal, rarely hampering the process, and that such a legislative change is not expected in the near future.
In Belgium, the current policy of determination of death by three independent physicians could be abandoned, facilitating a more lean procedure with only one physician. By giving a physician the advice to propose organ donation after euthanasia in a patient who is about to undergo euthanasia, the patient's autonomy could be further improved.
On the other hand, these measures have been put in place to protect patients and to avoid the public opinion thinking that physicians will exert less effort caring patients who could be an organ donor.
Separation of the procedures
Legally, it is stated that both procedures should be strictly separated. However, when a patient becomes ill he might already mention that he prefers to undergo euthanasia when suffering becomes unbearable. From that moment on, multiple conversations between the physician and his patient will take place, discussing different options for pain relief and sedation. During this time frame, the subject of organ donation could come under the attention.
A patient might be motivated to request euthanasia because this gives him the opportunity to donate organs. As long as all due diligence requirements are fulfilled, it should not be an obstacle if euthanasia and donation are not fully separated. One, however, needs to avoid the public having the perception that anyone who is ill and willing to donate his organs will be able to undergo euthanasia, or that a physician would motivate a patient to undergo euthanasia because of organ donation possibility. The public needs to have confidence in the ability of a physician to judge objectively and acknowledge that strict legal criteria and boundaries regarding euthanasia and organ donation exist.
The dead donor rule
The dead donor rule states that donation should not cause or hasten death.22 Since a patient undergoing euthanasia has chosen to die, it is worth arguing that the no-touch time (depending on the protocol) could be skipped, limiting the warm ischaemia time and contributing to the quality of the transplanted organs.23 It is even possible to extend this argument to a ‘heart-beating organ donation euthanasia’ where a patient is sedated, after which his organs are being removed, causing death.24 Both options are currently legally not allowed.
Physicians should be aware that those who request euthanasia could be potential organ donors. Discussing this subject between physician and patient is an ultimate form of answering the right to self-determination, and from a legal and ethical perspective, the issue can both be raised by the patient or the treating physician.
Combining euthanasia and organ donation in a so-called ‘donation after circulatory death’ procedure seems feasible on legal, ethical or medical grounds, and is increasingly gaining social acceptance in both Belgium and the Netherlands. Since current legislation does not specifically focus on the—when drafted unpractised—combination, future redrafting may be necessary in perspective of the contemporary developments regarding occurrence of such combined procedures.
Twitter Follow Jan Bollen at @jantjebollen
Contributors JB is the primary author of the preliminary and final manuscript, and both initiator and coordinator of the project. WvM, together with RtH, co-authored the manuscript, provided suggestions and comments to the initial drafts by JB and together they drafted the prefinal versions of the manuscript. WvM focused on medical and more general aspects of euthanasia and organ donation, whereas RtH focused on legal and judicial aspects of the topic. DY provided information from Belgian practice and provided suggestions and comments on Belgian aspects of the subject. EvH supervised the project and provided suggestions and comments for further improvement on the prefinal drafts of the manuscript.
Competing interests None declared.
Provenance and peer review Not commissioned; internally peer reviewed.
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