By Karl Hoerr -
The laws governing organ donation and the use of human tissue in Australia are currently the subject of a review by the Australian Law Reform Commission. Not since 1977 have the country’s human tissue laws undergone a major, national review. What is the scope of this review and how might any changes improve access to a medical lifeline?
Dr Maeghan Toews has spent the past decade researching the law, as it relates to human biomaterials. In February, she was appointed to jointly lead the ALRC’s Review of Human Tissue Laws, with the Commission’s President, Justice Mordecai Bromberg.
Speaking to the Journal, Toews explains how she was drawn to this field of research. “[H]aving those interactions and engagements with patients, either waitlisted patients, patients who have received an organ, or even patients who have donated or donor families and actually getting to hear some of those stories and see first-hand the impact that donation and transplantation can have.”
It opened a world of experiences and perspectives absent from her previous role in commercial law. “[I]t really has an emotional connection for me,” she says. “It’s seeing that human connection and human … cost that’s really at stake for people in the solid organ space that really has life and death consequences.”
It’s approaching 50 years since the ALRC developed the model law that was used as the basis for Human Tissue Acts later adopted by all states and territories. At the time, the ability to transplant organs was still an emerging field of medicine, although the first successful transplant involving humans had occurred in 1954 in the United States, using a donor kidney.
Toews says technology and societal values have changed considerably since the various pieces of legislation became law and amendments have followed. “[W]hat started as a relatively uniform system has actually diverged quite a bit and so there’s the need to … update the framework.”
The review is broad in scope and will encompass not just solid organs, but other tissue, such as musculoskeletal tissue, bones, heart valves, blood and bone marrow. Donated tissue is not only necessary for transplant, but also for research, anatomical examination and for use in therapeutic products.
The Commissioner says the review is looking at ways to “make the system operate more efficiently, more effectively, make sure that it’s accessible for those who need to use it, including practitioners and researchers who presently have to go to … 10 different places in the legislation to work out what some of their obligations are.”
How to lift rates
Possible steps to lift the donation of solid organs include new methods of identifying potential donors in hospital, “to make sure everyone who dies in hospital who could potentially be an organ donor is actually evaluated for organ donation.
“And then looking at consent processes and systems around deceased donation, to see whether there are legal levers that could or should be used with a view to increasing the availability of organs,” says Toews.
At the same time, the review is mindful to prioritise respect for persons and the human body, as it seeks to balance different policy objectives. “So that the human body is never just … looked at as a source of spare body parts,” explains Toews. “So that we actually see people as people and even deceased bodies, that we treat them with the dignity that they deserve.”
The issues paper for the review speaks of better protecting the “autonomy” of donors, recipients and others, including respecting their “rights, beliefs and cultural heritage”. It says state and territory laws could be updated to ensure they “facilitate free and informed choice, and self-determination.”
The role of trust
Another important consideration for any reform is public trust, and how this can be promoted and upheld. Toews says organ and tissue donation systems can only function in an environment of public support, underpinned by transparency. “Some people might have a fear that, ‘Oh, well they won’t try and save my life if I sign up to be an organ donor’, so it’s trying to dispel some of those myths,” says Toews.
The review will also look at the issue of ‘transplant tourism’, the practice of Australians travelling overseas to purchase an organ. Although trafficking of persons for their organs is prohibited by the Commonwealth Criminal Code, it doesn’t capture transplant tourism.
Toews says this can be addressed by countries such as Australia striving for self-sufficiency. “[I]f we were able to meet the demand for transplantable organs, then that would go quite a long way to stemming the tide of Australians going elsewhere to engage in ethically problematic practices in transplant tourism.”
Toews describes Australia as “middle of the pack” on solid organ donation rates. The United States is considered a world leader. Countries such as Spain and France fare better than Australia but have different models of consent. On how to improve this position, Toews points out the law can only go so far.
“Part of it is needing to have a stronger culture of donation, perhaps both within the broader population as well as in medical communities.
“Where the law … intersects with that is really … something that strikes to the heart of this inquiry.”
Submissions to the review are open until 4 July 2025.
