La loi vos droits

Health Care Users and Professionals

Donating a Part or Product of the Human Body

Eight-year-old Martine has been waiting for a kidney transplant for months. Her fifteen-year-old brother, Mathieu is willing to give her one of his kidneys to save her life. The law, however, prohibits him from doing so. According to the Civil Code of Quebec, a minor cannot donate a part of his body if that part cannot replace itself.

In this Infosheet, Éducaloi explains the conditions and restrictions surrounding the donation of a part or product of the human body as well as organ removal after death.

What is the donation of a part or product of the human body?

Donating a part or product of the human body is when a person voluntarily gives blood, sperm, tissue, or an organ. People often refer to this as “organ donation” but there are actually 3 types of donations:

• Donation between two living persons (the donor and the receiver);
  
• Organ donation after death;
  
• Using a part or product of the body for medical research that was removed from a patient as part of the care he received.

Among the body parts and products that can be donated, the law has created two categories:

• Parts and products of the body that are able to replace themselves (capable of regeneration), like blood and sperm. These products can generally be given repeatedly without endangering the donor’s life.
  
• Parts and products of the body that cannot replace themselves. These parts can only be removed once (example: a kidney). The law imposes restrictions depending on the type of organ or tissue to be removed.

Can a person be forced to donate a body part or product?

The Civil Code of Quebec states that every person is inviolable and is entitled to the integrity of his person.

Because of this, a person cannot be forced to give away any part or product of his body. Giving away part of the body infringes the physical integrity of the donor by its very nature. That’s why the law requires that the donation be made with "free and enlightened consent".

When the potential donor is unable to give his consent because of his age or an inability to express his will or to understand the consequences of his acts, another person must consent on his behalf. This is called substitute consent. For more information on this subject, see the Infosheet entitled Consent to care  (http://www.educaloi.qc.ca/en/loi/health_care_users_and_professionals/61/).

What is "free and enlightened" consent?

The potential donor must first consent (agree) to the donation because it will necessarily infringe upon his integrity.

The law imposes certain conditions for the consent to be valid. It must be “free and enlightened”.

Consent is “free” when it is given willingly. The potential donor must not be pressured into agreeing.

Consent is “enlightened” when it is given knowingly. This imposes on doctors a duty to provide information. The potential donor must be given all the information that allows him to fully appreciate the risks and dangers involved in the procedure.

Specifically, doctors must tell the potential donor about:

• the nature of the procedure/intervention and what will be removed from him;
  
• the irreversible and permanent nature of the process where the donation is made for a transplant;
  
• the chances of success or failure of the procedure/intervention;
  
• the immediate and future risks for the donor, and the consequences of the donation.

Consent to donation by a living person must always be given in writing. Organ donation after death can be made in writing or verbally, in front of 2 witnesses.

Under what conditions can an adult donate a part or product of his body?

As a general rule, an adult able to give his free and enlightened consent may donate a body part or product if the benefits of this act outweigh the risks.

The law prohibits a person from continuing to give a part or product of his body if this donation presents a serious risk to his health.

For example, you would not be allowed to donate blood twice a week because doing so would be too risky for your health. For obvious reasons, if you donated one kidney, the law would prohibit you from donating the other.

Finally, it is against the law to donate a vital organ between two living persons.

Do these rules apply to a minor or to an adult who is unable to fully understand what is being asked of him?

No. Different rules apply to minors (persons under 18 years of age) and to adults who are unable to fully understand what is being asked of them.

Examples include adults under protective custody (tutorship, curatorship), comatose patients, adults who are heavily medicated.

In principle, minors and adults who are unable to fully understand what is being asked of them can only donate a part or product of the body when:

• The part or product of the body in question is one that can replace itself;
  
• The procedure poses no serious health risk to the adult or minor;
  
• The person who can agree on behalf of the adult or minor has consented to the procedure. For the minor: his parents or tutors; For the person under protective custody: his tutor, curator, mandatary; For other adults: spouse, relative, mandatary.
  
• The permission of the Court has been obtained.

In deciding whether or not to permit the donation, the Court will consider the opinion of:

• Experts;
  
• The people who can agree on behalf of the minor or adult (parents, spouse, curator, mandatary, etc.);
  
• Any person who shows a special interest in the minor or adult;
  
• The minor or adult. If the potential donor refuses to make the donation, his refusal must be respected.

Here is an example:

Micheline is seriously ill with leukemia and, at this point, only a bone marrow transplant can save her life. Her brother Richard, under curatorship due to a serious mental illness, seems to be the only compatible donor. Richard’s curator has agreed to the donation and now the Court must make a decision. Richard refuses to have anything removed from his body. He believes that by donating his bone marrow, he will never walk again. Even if his answer seems unjustified, irrational or even ridiculous, the Court must respect Richard’s refusal. Consequently, Micheline will have to seek another compatible donor.

Does the patient have a say about the use of parts or products removed from his body during surgery?

Absolutely. Sometimes during surgery or another procedure, doctors must remove certain tissues or organs from the patient’s body. For example, during heart surgery, doctors are often obliged to remove certain tissues like heart valves. These surgical “leftovers” may be useful for scientific research.

The law is clear: the patient must be informed and must give his consent to the use of parts or products that were removed from his body as part of the care he received.

That means that this person’s consent is needed for 2 things:

• The procedure that they want to subject him to;
  
• The use of the organs or tissues that will be removed from his body during the procedure.

Can people who donate organs or products from their body be compensated?

In principle, the human body is not for sale and any donation of a part or product of the body must be made for free.

Can a person refuse in advance to donate his organs upon his death?

Yes. The right to the inviolability of the human body continues after death.
This right entitles a person, of 14 years or older, to choose whether or not to allow the removal of organs or tissues from his body for medical purposes.
Consent to the donation of part of the body after death can be given verbally or in writing.

Organ donations often occur in the context of an accidental death – which prevents the individual from informing care personnel of his wishes. Permission will have to be obtained from the people who have the right to agree on behalf of the deceased (parents, tutors, curator, spouse, etc). For more information, read our Infosheet entitled Consent to care  (http://www.educaloi.qc.ca/en/loi/health_care_users_and_professionals/61/).

In theory, the persons consenting on behalf of the deceased must respect his wishes. The deceased could have expressed those wishes verbally or in writing before his death. He may have signed and affixed the sticker made for that purpose to his health insurance card. If the deceased did not mention his wishes or was under 14 years of age when he died, the people consenting on his behalf will have to decide on their own whether or not to authorize organ donation.

Another way to express consent or refusal of organ donation upon death is by consulting a notary. The notary who is called upon to draft a will or a mandate given in case of incapacity can also receive the person’s wishes with respect to organ donation. The notary then registers these wishes in the Registre des consentements au don d'organes et de tissus (organ and tissue donor registry), which complements the sticker placed on the back of the person’s health insurance card. Health professionals can then access this computerized registry to learn about the deceased’s wishes, when, for example, he was not carrying his medical insurance card with him.

Can a person donate his corpse to science?

“Science”, in this context, refers to medical faculties that use corpses for research and teaching purposes. All adults (even those under protective supervision) and minors of 14 years or older can donate their corpse to science. A minor of less than 14 years of age can also do so, but only with the consent of his parents or tutor.

The corpse must meet certain medical and physical requirements. For example, the vital organs must be there (which excludes individuals who have consented to organ donation), the weight must be proportional to the height, the body cannot be deformed, the death cannot be due to a contagious disease, etc.

If you wish to donate your corpse to science, one of the ways that you can make your decision known is by requesting and keeping the card issued by L'Agence de la santé et des services sociaux de la Capitale nationale. You must sign this card and also have 2 witnesses sign it. University institutions undertake the transportation of the corpse. When they have finished with it, the institution buries it at a cemetery of their choice, unless the family wishes to recover it.

Can body parts be removed from the deceased if his wishes are unknown and if consent was not obtained from his next of kin?

In exceptional circumstances, the law allows doctors to remove organs or tissue from the deceased without his relatives’ consent. Two doctors must attest in writing that consent could not be obtained in time. The following conditions must also be met:

• the procedure is urgent;
  
• the organs or tissues removed can save or improve appreciably the quality of a human life.

If, for example, a clinically dead person arrives in the emergency room and his organs are in good condition, the doctors can remove his organs on the spot if it is impossible to obtain consent from his next of kin in due time and if it is impossible to ascertain what his wishes were since they were not expressed, for example, on his medical insurance card.

The law says that the removal of organs cannot be done until the person is declared dead by 2 doctors who have nothing to do with the removal or transplant.

If I sign my organ donor card, is my decision irrevocable after my death?

Your signature on an organ donor card lets your next of kin know your wishes.

The law states that a person’s expressed wishes must be carried out unless there is a compelling reason not to do so.

In order to avoid confusion, discuss your wishes about organ donation with your family.