By Eisuke Nakazawa and Keiichiro Yamamoto
We provide a thought experiment about living donor kidney transplantation. We call this problem ‘organ restitution’.
Mr. A offered to be a living related kidney donor for his relative, Mr. B, who developed renal failure. His postoperative course was smooth, and a year went by without any problems. One day, A, the donor, was involved in a motor vehicle accident, and he lost his remaining kidney function due to acute kidney injury from which he did not recover. None of his relatives could provide a kidney to A, and the waiting list for kidney transplantation from deceased donors suggested a long waiting time. A felt strongly against being on renal dialysis, which would restrict his life three times a week. Can A demand B to give back his kidney?
First, let us assume a case in which original donor (A) wishes the return of the organ which had been transplanted into B, and the original recipient (B) agrees. In this case, organ restitution will be permissible based on contract-like agreement. However, careful and detailed consideration is necessary to determine whether this leaves no room to question the authenticity of B’s consent. Second, if B offers to give back the organ to A, then B’s act can be regarded as a supererogatory act, and is praise-worthy and meritorious. We could say that such an offer is a matter of virtue, not obligation. Third, if A wishes B to return the organ, but B does not wish/allow this to happen, it seems difficult to justify returning the organ to A by violating B’s right to bodily integrity. But B’s refusal to return the donated organ cannot be deemed praise-worthy, because B forgets the great kindness once received from A. Rather than calling this an obligation, we encourage B to consider such virtuous conduct.
Living organ transplantation is a kind of ‘designated donation’ and subsequently has a contract-like character. We would like to introduce two types of contract concepts to our discussion about living organ transplantations. One is the donation (gift) contract, and the other is the organ restitution contract. We accept the possibility that organ restitution could be performed under a contract between concerned parties. The authenticity of the contract itself must be carefully judged. Organ restitution contracts are one-sided contracts, in the sense that they must assume a form that does not permit withdrawal of consent. Given this feature, it is necessary that such contracts be established on the basis of the voluntary, good faith consent of both parties. Consequently, this possibility should be recognized by, and the conditions of the contract made rigorous under, the specific laws of each country. To clarify these conditions once more, they include guarantees of the medical safety of the organ restitution surgery, the voluntary consent of both parties, no coercive intervention by either party or a third party, no exploitation, and a reasonable means to determine that these conditions are sufficiently met. In addition to these obligatory aspects between donors and recipients, we should also take virtuous aspects of them into consideration.
Author: Eisuke Nakazawa (1), Keiichiro Yamamoto (1), Aru Akabayashi (1), Margie H. Shaw (2), Richard A. Demme (2), and Akira Akabayashi (1)(3)
(1) Department of Biomedical Ethics, Faculty of Medicine, The University of Tokyo, Tokyo, Japan
(2) Division of Medical Humanities and Bioethics, University of Rochester Medical Center, Rochester, NY, USA.
(3) Division of Medical Ethics, New York University School of Medicine, New York, NY, USA.
The authors of this manuscript have no conflicts of interest to disclose. Although AkA is President of the Japan Association for Bioethics (JAB), this letter represents our personal academic analyses and opinions. It does not represent JAB’s official position on this issue.
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