Eight-year-old Martine has been waiting for a kidney transplant for months. Her brother, Mathieu, is 15 and wants to give her one of his kidneys to save her life.
But the law prevents him from making this donation: the Civil Code of Quebec says a minor - someone under 18 years old - cannot donate a part of his body if that part cannot replace itself.
In this article, Éducaloi explains the rules on donating a part or substance of the human body and on organ removal after death.
What is the donation of a part or substance of the human body?
Donating a part or substance of the human body is when a patient voluntarily gives blood, sperm, tissue, or an organ. Among the body parts and substances that can be donated, the law has created two categories:
- parts and substances of the body that can replace themselves, like blood and sperm. These can generally be given repeatedly without risk to the donor’s life.
- parts and substances of the body that cannot replace themselves. These parts can only be removed once, for example, a kidney.
The law places more restrictions on donations of parts and substances that can’t replace themselves.
The rules depend on the donor’s situation. There are three types of donations:
- donations between two living persons (the donor and the recipient)
- using parts of the body removed from a person during medical treatment for research purposes
- organ donation after death
Can a person be forced to donate a body part or substance?
The Civil Code of Quebec says that every person has a right to have the integrity of his body respected.
Because of this, no one can be forced to give away any part or substance of his body.
This is why the donor must first agree, or “consent” to the donation.
The law imposes conditions for the consent to be valid. It must be “free and informed.”
Consent is “free” when it is given willingly. The donor must not be pressured into agreeing.
Consent is “informed” when it is given with knowledge of the consequences of the decision. This imposes on doctors a duty to provide information. The donor must be given all the information needed to understand the risks involved.
Specifically, doctors must give the potential donor this information:
- the nature of the procedure and what will be removed
- the immediate and future risks for the donor, and the impact of the donation
- when the donation is for a transplant, the permanent nature of the process
- the chances of success or failure of the procedure
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 two witnesses.
What are the restrictions for adults who want to donate part or substance of the body?
As a general rule, an adult able to give his free and informed consent can donate a body part or substance if the benefits of the donation outweigh the risks.
The law prohibits a person from continuing to give a part or substance 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 this would be too risky for your health. Also, if you donated one kidney, the law would prohibit you from donating the other.
Are the rules the same for minors or for people who do not understand what is being asked?
No. Different rules apply to minors (people under 18 years of age) and to adults not able to fully understand what is being asked of them.
Minors and adults unable to fully understand what is being asked of them can only donate a part or substance of the body in these situations:
- The part or substance can replace itself.
- The procedure poses no serious health risk to the adult or minor.
- The person who is authorized to decide on behalf of the adult or minor has consented to the procedure. For the minor, this would be his parents or tutors. For an incapacitated person under protective custody, this would be his tutor, curator or mandatary (representative). For other adults, this would be a spouse or partner, relative or mandatary.
- A court has given its permission.
In deciding whether to allow the donation, the court will consider the opinions of these people:
- 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
If this person refuses to make the donation, his refusal must be respected.
Here is an example:
Micheline is seriously ill with leukemia and 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. As a result, Micheline will have to find another compatible donor.
Does the patient have a say about the use of parts or substances removed from his body during surgery?
Absolutely. Sometimes during surgery or other medical procedure, doctors must remove certain tissues or organs from the patient’s body. For example, during heart surgery, doctors must often remove tissues like heart valves.
These surgical “leftovers” can be useful for scientific research. But the law is clear: the patient must be informed and must give his consent to the use of parts or substances removed from his body as part of the care he received.
That means that this person’s consent is needed for two things:
- the procedure
- the use of the organs or tissues that will be removed from his body
Can people who donate a body part or substance from their body get money for this?
Any donation of a part or substance of the body must be made for free. The donor cannot be paid for the donation.
Can a person refuse in advance to donate his organs when he dies?
Yes. The right to the integrity of the human body continues after death.
A person 14 years or older can therefore 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. This prevents the person from informing care givers of his wishes. So permission has to come from the people who can make a decision on behalf of the deceased (parents, tutors, curator, spouse, etc). To learn more, read our article Consent to Care.
In theory, someone consenting on behalf of the deceased must respect his wishes. The deceased could have expressed those wishes verbally or by signing the sticker on the back of his health insurance card, or by filling out and sending the Régie de l’assurance-maladie consent form.
Another way to express consent or refusal of organ donation upon death is through a will or protection mandate (mandate in case of incapacity) drawn up by a notary. The notary will then register these wishes in the Registre des consentements au don d'organes et de tissus (organ and tissue donor registry), which complements the sticker on the back of the person’s health insurance card. It is also possible to ask a notary to simply register your consent or refusal in the registry.
Health professionals can then access this computerized registry to learn about the deceased’s wishes when, for example, he is not carrying his medical insurance card with him.
Can body parts be removed from the deceased if his wishes are unknown and consent was not obtained from his relatives?
In exceptional circumstances, the law allows doctors to remove organs or tissue from the deceased without his relatives’ consent. Two doctors must certify 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 make a significant improvement to the quality of a human life
For example, if 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 relatives in due time and if it is impossible to know what his wishes are 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 two doctors who are not involved in the removal or transplant.
What if I sign my organ donor card?
Your signature on an organ donor card lets your relatives know your wishes.
The law says that a person’s expressed wishes must be carried out unless there is a very serious reason not to do so.
To avoid confusion, discuss your wishes about organ donation with your family.
Can a person donate his body to science after death?
“Science”, in this context refers to an academic institution that use bodies for research and teaching purposes.
Adults and minors 14 years or older can donate their bodies to science. A minor under 14 can also do this, but only with the consent of his parents or tutor.
The body must meet certain medical and physical requirements. For example, the vital organs must still be in the body, so these rules out people who have consented to organ donation. Also, the weight of the body must be proportional to its height, the body cannot be deformed, the death cannot be due to a contagious disease, etc.
If you want to donate your body to science, you can make your decision known by filling out a special card. You must sign the card and have two witnesses sign it. You can then keep the card with your important identification cards.
The institution pays for the cost of transporting the body. When the institution has finished with the body, the family can take it back for a funeral, if it wants.
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.