Japan Organ Transplantation Law: Past, Present and Future

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 4 452 Japan Organ Transplantation Law: Past, Present and Future A L I R E Z A B A G H E R I Since 1967, the issue of brain death and organ transplantation in Japan became a nation-wide debate involving the public as well as experts in the field. As a result, the organ transplantation law was passed in 1997. This legislative development brought a hope that Japanese patients could receive organ transplantation in the country. However, because of the restrictions set by the law, patients, especially children, had to seek organs for transplantation abroad. After 12 years, the Japanese Diet adopted a new law with fewer restrictions which again brought new hope that patients will receive the organs they need to survive. This paper argues that although the legislation is a step forward, without addressing related sociocultural issues, it is hard to expect the new law to increase the number of organ donors dramatically. The Past: From Prohibition to Restriction In Japan, a nationwide debate on “brain death” and organ transplantation involving the general public and experts has taken place over the last four decades. Until 1997, Japan barred organ donations from adults who were brain dead. The first attempt to pass a law on organ transplantation from bodies declared dead on brain-based criteria failed in 1994. The Law Concerning Human Organ Transplants was enacted 12 years ago, with 25 articles and 34 paragraphs, and allowed organ procurement under restricted circumstances both from bodies declared dead using brain-based criteria as well as from those declared dead using more traditional cardiac criteria.1 In addition, the donor must have expressed his/her intention with respect to the definition of death to be C O M M E N T 452–456 Asian Bioethics Review December 2009 Volume 1, Issue 4 453 used and to organ donation in a written document beforehand, and the family had to agree with that decision. According to the law, organ removal from persons less than 15 years of age was prohibited. The reference point for setting that age was the age of eligibility for executing a testamentary will in Japanese civil law (Japan Civil Law Code, article 961). Family consent was required both for organ procurement and for declaration of death according to brain-based criteria. Therefore, if the family refused to consent, the legal diagnosis of “brain death” and subsequent organ procurement were not possible. The issue of organ removal from children was one of the main concerns since the organ transplantation law was adopted in 1997. The age limitation for organ donation had forced Japanese parents to travel overseas to obtain suitable organs for their children as a last resort for their survival. In order to solve the problem of organ transplantation for children, some Japanese scholars raised the issue of the age limit and tried to find a solution by proposing a revision of the organ transplantation law. One of the proposals submitted stated that children’s voices must be heard and that a provision for “children’s prior consent” for organ removal must be included in the revised text. The authors raised two proposals: the first would permit organ procurement from children as young as 6 years of age, while the second limited it to 12 years of age.2 However, the basis for the “age grouping” in their proposals was unclear.3 Transplant surgeons and patient groups expressed great concern that these restrictions would severely limit organ procurement from “brain dead” sources in Japan.4 It seems that what was predicted happened and the law was not successful in terms of providing a large number of organs for transplantation. Since the transplant law came into effect in 1997, there has been less than 100 organ transplants from brain-dead donors per annum in Japan and the problem remains unsolved. The Present: From Restriction to Permission It was stated that the law would be...