Tomorrow, Thursday, January 16, 2020, the Bundestag will vote on a new regulation on organ donation. However, both alternative bills to be voted on, the so-called objection solution and the so-called consent solution, are rightly criticized in the opinion of the Humanist Association of Germany (HVD). “Both proposals are linked to the same false promise of being able to significantly increase the number of transplants,” says HVD board spokesman Erwin Kress. A slight increase in the number of potential donors does not automatically mean that more people will receive a donor organ.
The problem lies elsewhere: Compared to other countries, we have too little willingness on the part of hospitals to report potential intensive care patients on their own wards. It remains to be seen whether the amendment to the Transplantation Act passed last year with changes to everyday hospital life will be successful. The aim is to make processes in transplant clinics more efficient and transparent, further strengthen the role of transplant officers and ensure that everything is remunerated appropriately.
Other problems that are not solved by the two bills are the lack of open information about the principle of determining brain death and the intensive medical measures prior to organ removal, as well as the restoration of trust in the population. In the past, public approval of organ donation was high, but transplant scandals have since led to a slight decline in willingness. “In a sham debate, an unnecessary law is now to be passed that does not solve the actual problem – but could create new ones,” says Erwin Kress, spokesman for the board of the HVD Bundesverband, assessing the vote in the Bundestag. Both proposals should therefore be rejected by the MPs.
The most conclusive argument against the “objection solution” is the following: Anyone who does not wish to donate for whatever reason would have to submit their objection in an electronic register. For many people, this formal act is perhaps just a little time-consuming and annoying – but for many old people, people with mental and physical illnesses or people with dementia, it is simply not feasible. Should they all be allowed to have their organs removed automatically? What’s more, in Germany the necessary objection is also perceived as a coercive measure and could therefore be counterproductive in terms of building trust, which is a priority.
The “consent solution” is rightly criticized for changing almost nothing in the existing regulation. In addition to making a decision for or against organ donation, it only contains the idea that everyone who has their identity card renewed should be asked about their attitude to organ donation at the relevant authority. The health insurance companies already send information material to all insured persons every two years and organ donation cards are available in many places. It is therefore highly questionable whether the documents at the residents’ registration offices will then be read more intensively or whether the planned computer terminals will be used to enter the decision there directly.
Two proposals, same problem
What both bills have in common is that they provide for central electronic registration of the decision for or against organ donation. However, this should only be accessed after brain death has been determined – this complex examination should therefore be allowed to be carried out without consent. “Both legislative proposals do not take into account the specific situation in intensive care units for potential organ donors and disregard elementary principles of patient autonomy,” criticizes Gita Neumann, HVD expert on living wills and humane dying. This is because the patient’s wishes must be determined in advance, namely when there is no longer any prospect of a patient being cured and irreversible loss of brain function is suspected or imminent. At this point in time, a decision must be made as to whether the continuation of intensive care measures until death is confirmed by evidence of irreversible loss of brain function is covered by the patient’s will. Doctors from the German Interdisciplinary Association for Intensive Care and Emergency Medicine have also emphatically pointed this out.
In addition, both bills insist on the traditional view that close relatives, first and foremost spouses, then children, should be asked about the presumed will in an uncertain decision-making situation – relatives who have only just learned of the probable (brain) death of a loved one. “For a decision on organ removal, it must also be possible to name persons who are not relatives and who are considered suitable by the person concerned as part of an extended health care proxy, and it must also be possible to exclude certain relatives, as has long been regulated in care law,” demands Gita Neumann.
No mere compensation for knowledge deficits
The topic of organ donation is extremely multifaceted. It not only touches on medical aspects, but also raises fundamental, ideologically influenced and ambiguous questions about the relationship between transience and permanence, body and spirit, individual and community. The high approval rates for organ donation on the one hand correspond to great ambiguity with regard to its concrete implementation on the other. Examples include the meaning of brain death and the conditions in the intensive care unit before and during the determination of brain death. In view of the medical and normative points of contention that continue to exist here and elsewhere – including internationally – there is no mere lack of knowledge that could be compensated for by conventional information brochures.
The fact is that the majority of the population in Germany is generally in favor of organ donation. The problem, however, is the transfer from abstract support to a conscious examination of the concrete effects on humane dying. It is also necessary to explain what the conditions in the intensive care unit are before and during the determination of brain death. Genuine, non-paternalistic education must therefore go beyond the mere provision of information. It must point out existing ambiguities and tolerate an understandable degree of indecision. This could be implemented very well within an open-ended consultation in the context of a living will with health care proxy.
