Children as Organ Donors: Is Japan's New Policy on Organ Procurement in Minors Justifiable?

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 4 354 Children as Organ Donors: Is Japan’s New Policy on Organ Procurement in Minors Justifiable? H I T O S H I A R I M A The Japanese Law on Organ Transplantation (Law No. 104, 1997; hereafter JLOT) was revised in July 2009 for the first time after its original enactment. One of the main changes concerns the transplantation of organs procured from dead (or brain-dead) children. The new law permits medical providers to procure organs from a deceased minor under 15 years old, provided that the family of the deceased gives consent. This paper discusses some of the moral issues raised by this new regulation. Prior to the revision, organ procurement from dead people for transplantation purposes was confined to cases where the organ donors were at the age of 15 or older. This was because the original law employed the opt-in system as a measure to confirm the will of potential organ donors. To be more specific, the law stated that organs may be procured only from those who had left a documented wish, while still alive, to donate their organs.1 Now, however, according to the Japanese civil law system, people may leave a legally valid will only after they reach the age of 15. In accordance with this regulation, the Guideline for the Application of “Law on Organ Transplantation” (published by the Ministry of Welfare three months after the promulgation of the original JLOT) specified that a person’s will for organ donation is considered valid only when the person is at the age of 15 or older.2 Children below the age limit were hence, practically barred from donating their organs. However, the opt-in system was abandoned in the recent revision. The new law (as amended by Law No. 86, 2009) now states that organs may be procured A R T I C L E S 354–366 Asian Bioethics Review December 2009 Volume 1, Issue 4 355 from anyone who, while they were still alive, had not explicitly refused to donate organs, as long as their families give consent.3 Thus, by not requiring the donor’s consent, the revised law opens a way for child organ donation.4 The same combination of the rules for adult organ procurement now applies to minors: namely, (1) the use of the opt-out system for the confirmation of the donor’s will, and (2) that the donor’s family makes the final decision.5 However, at first glance, this raises the following ethical questions. In the first place, irrespective of whether the donor in question is an adult or minor, these rules apparently do not sit well with the principle of autonomy. For one thing, as we shall see shortly, the opt-out system in the context of organ procurement has been criticised for not taking the donor’s will seriously. Also, the rule that the family can make the final decision may seem to contradict with the principle as well, since it is not plausible to assume that the family’s decision will always agree with the will of the deceased. In addition, a special problem arises with the case of minors. Depending on their ages, minors may still lack the cognitive faculties needed to understand the relevant facts and rules about brain death and organ transplantation. Even if they had expressed their will to donate (or to refuse to donate) their organs, a doubt remains as to whether taking (or not taking) their organs can be said to follow the donors’ real wishes. During the process of the revision, the question of how to justify these rules was seldom discussed in the Diet.6 However, in bioethics literature, a large portion of the debates regarding the justifications of different organ procurement policies has revolved around the question of whether these policies are compatible with the value of the donor’s self-determination.7 Furthermore, Article...