Cadaveric Donation and the Family: Perspectives from the Legal History of Japan

A s i a n B i o e t h i c s R e v i e w D e c e m b e r 2 0 0 9 Vo l u m e 1 , I s s u e 4 342 Cadaveric Donation and the Family: Perspectives from the Legal History of Japan Y U S U K E I N O U E A N D H Y U N S O O H O N G Introduction Although organ donation procedures have been developed globally, permanently established systems for recruiting organ donors have been primarily limited to North America and some Western European countries.1 For example, in the UK and US, most organs for transplantation have been from cadaveric donors who are not related to the recipients. On the other hand, there are countries where intrafamily organ donor-recipient relationships account for a large percentage of the total organ donations. For example, the number of cadaveric organ donations in Japan and Korea has historically been the lowest in the world.2,3 Therefore, living donor transplantation has been regarded as an alternative for organ grafts (Figure 1). Living organ donors, usually the family members of the recipients, have sustained transplantation in these countries. On the other hand, cadaveric donation has not dominated transplantation, and therefore, their system of fair allocation of organs remains in its infancy. What has restricted cadaveric organ donation and at the same time, broadened the use of living donations in these countries? We think that the situation might partly be explained by the role of the bereaved family. A substantial amount of literature on Japan’s legislation already exists in this area, but most of them are concerned with continued arguments on the concept of brain death following the legislation in 1997.4 In this paper, we review the family’s role in the history of Japanese cadaveric organ transplantation law beginning in the 1950s, when there was no notion of organ donation without cardiac death in Japan, through the 2009 revision of the law, and consider its influence on cadaveric donation. A R T I C L E S 342–353 Asian Bioethics Review December 2009 Volume 1, Issue 4 343 Source: The Japan Organ Transplant Network (Japan), The Korean Network for Organ Sharing (Korea), NHS Blood and Transplant (UK), and The United Network for Organ Sharing (US). Figure 1. Trends in organ donation from living vs. cadaveric donors (Percentage of transplants that are from living donors) Kidney Liver C a d a v e r i c D o n a t i o n a n d t h e F a m i l y Yu s u k e I n o u e a n d H y u n s o o H o n g A s i a n B i o e t h i c s R e v i e w D e c e m b e r 2 0 0 9 Vo l u m e 1 , I s s u e 4 344 Organ Transplantation Law in Japan Previous Laws on Transplantation (’58 Act and ’79 Act) In Japan, most laws are drafted by the Cabinet, but bills on organ transplants and their revisions have been traditionally proposed by the members of the Diet and primarily decided by free votes. Today, organ transplantation is governed by the ’97 Act (Act on Organ Transplantation, No. 104 of 1997, amended by No. 83, 2009). This law has two precedent laws: Act on Cornea Transplantation (1958, No. 64), and Act on Transplantation of Cornea and Kidney (1979, No. 63). Before the introduction of the Act on Cornea Transplantation (’58 Act), there had been a longstanding concern about the fact that mutilation of a corpse might constitute a crime in the Japanese legal system. The issue is whether the use of procured organs for the purpose of transplantation is considered a “justifiable ground” to exempt the act from criminal liability. The ’58 Act legalised the procurement of human eyes from a cadaver for the first time. The ’58 Act also introduced some regulations that were included in all...