Statement on Bills to Revise the Act on Organ Transplantation
The National Diet of Japan is engaged in deliberations on bills to revise the Act on Organ Transplantation. In addition to the three bills which have already been submitted to the Diet, there is reportedly a movement to propose another bill in order to resolve the conflicting views of Diet members. The new bill eliminates the age limitation to be a donor, and, for a “legally deceased” child under 15 years of age (i.e., not having yet reached the age of 15 years) to be a donor, the new bill requires the following: (1) the consent of family members and (2) confirmation by a third party, such as the ethics committee of a hospital, that the child has not been abused.
The underlying motivation for the introduction of these bills is the fact that the number of organ transplants from brain dead donors has not increased since the enactment of the current Act on Organ Transplantation more than ten years ago. In addition, the current Act bans the extraction and transplantation of organs from brain dead children, and the World Health Organization is going to adopt a resolution supporting the Istanbul Declaration endorsed by the Transplantation Society which opposes traveling overseas for organ transplants.
However, it is unacceptable to revise the Act to uniformly define brain death as the death of a human being and to deny self-determination. The current Act was based on the premise that the self-determination of those who wish to be donors when their brains die should be respected even though Japanese society had not developed a common recognition that brain death was equivalent to the death of a human being. The Japan Federation of Bar Associations (JFBA) has been calling for the drafting of bills in line with the aforementioned premise. The JFBA has also been pointing out that since the enforcement of the current Act, evidence has emerged that the bodies of many brain-dead patients, especially those of children, live for long periods of time, and such information should be clearly provided to the public so that public consensus can be reached on whether brain death should be considered the actual death of a human being. Regrettably, our opinions have not been seriously taken into consideration by the Japanese government.
It is a reversal of priorities to redefine death in order to provide for an increase in organ transplants. We agree that the current situation where children are not able to receive organs is a critical issue to be discussed. However, accurate information on brain death is required, especially as some specialists are pointing out the limitations and difficulty in determining brain death in children. In addition, a new technique has been recently reported for the treatment of infants with dilated cardiomyopathy (who previously had no option other than cardiac transplantation to be cured). The current Act is based on the premise that within a few days, brain death results in actual death (i.e., display of the following socially-accepted symptoms: absence of pulse, spontaneous respiration, and pupillary response to light). However, it is known that some brain-death patients survive for a longer period (i.e., their hearts continue beating for more than 30 days). Thus, the definition of brain death also needs to be reviewed.
At this time, the JFBA is unable to accept revising the Act which would define uniformly brain death as the actual death of a human being, and would deny self-determination and approve the extraction of organs from brain-dead children under 15 years of age with the consent of family members and the decision of an ethics committee or other body.
Japan Federation of Bar Associations
May 7, 2009