The Law
In Canada, the provinces and territories are responsible for regulating organ and tissue transplantation. Legislation in each province and territory sets norms regarding organ donation, and each such statute includes what amounts to a ban on the buying and selling of organs. Although there is some variation in the exact wording of the relevant provisions, every province has a prohibition that, taken literally, is tremendously broad in scope. Seven of the thirteen statutes state that “No person shall buy, sell or otherwise deal in, directly or indirectly, for a valuable consideration, any tissue for a transplant, or any body or parts other than blood or a blood constituent, for therapeutic purposes, medical education or scientific research” [15–21]. In Québec, the Civil Code provides that “[t]he alienation by a person of a part or product of his body shall be gratuitous…” [22]. In other provinces, such as Alberta, the legislation prohibits the exchange of organs for “any reward or benefit” [10].
In law, “valuable consideration” is expansively defined; it is understood to mean any detriment incurred by one party to an agreement, or any benefit received by the other party [23, 24]. Consideration is much more than a mere exchange of money for goods or services. A classic example that highlights the breadth of the legal conception of valuable consideration arises from an English case, Chappell & Co v Nestlé
[25], wherein the House of Lords held that chocolate bar wrappers could be viewed as consideration. Likewise, the concept of “reward or benefit” is extremely far-reaching. In referring to “valuable consideration” and “reward or benefit”, the statutes arguably prohibit any exchange that could be viewed as creating an incentive to donate organs.
If an individual or organization were to challenge the legal legitimacy of a particular incentive program, the court would be required to interpret the provision that prohibits dealing for an organ “for a valuable consideration”. Based on the broad approach to the meaning of consideration in the case law, the court would very likely be persuaded that the legislature chose the language of “valuable consideration” deliberately, and with a view to including much more than an outright purchase of organs. In other words, if the legislature had intended only to prohibit the exchange of cash for organs or tissues, then the provision could have been drafted much more narrowly. The choice of the language of consideration suggests that all programs that can be viewed as providing a benefit to the donor in exchange for an organ could be interpreted as being contrary to the spirit of the legislative prohibition, and therefore illegal.
It is important to note that our interpretation of “valuable consideration” is based on the common law of contract. Canadian organ donation legislation makes it an offence to contravene of the law. This implies that the law may be interpreted more narrowly, in keeping with the “strict construction” approach used in the context of penal legislation, where uncertainty or ambiguity is resolved in favour of the accused person [26]. Still, as noted above, valuable consideration should be viewed as much more than money. It can be almost anything that serves as a reason, motive or inducement for entering into an agreement.
Incentive policies
As noted, numerous incentive mechanisms have been either implemented or proposed [See Table 1], including the provision of a tax credit to living donors and the payment of some or all of a deceased donor’s funeral expenses [1–3, 27, 28]. Both of these types of incentives are clearly “benefits” to the donor or donor’s family, and therefore infringe existing provincial legislation.
Providing full or partial reimbursement of a living donor’s expenses has also been suggested as a way to increase donation frequency, and this approach has been adopted by a number of provinces [13, 14]. For example, Ontario has the “Program for Reimbursing Expenses of Living Organ Donors” which allows donors to claim up to $5,500 for out of pocket expenses [13]. Québec has a similar program [14]. While these programs are hardly generous – indeed, research has shown that the personal financial costs of organ donation often far exceed the $5,500 limit [12]– they may nevertheless infringe the ban on the exchange of valuable consideration in return for an organ. Many policy documents seek to draw a clear distinction between incentives and the repaying expenses (or removing “disincentives”) [29, 30]. But from a legal perspective, the line is not always clear. Simply declaring a payment to be a reimbursement or the removal of a “disincentive” does not, in the eyes of the law, necessarily mean it could not be construed as a benefit or valuable consideration. As we have seen in the context of other debates, such as with surrogacy arrangements [31, 32], there is much debate about what is a legitimate expense and when reimbursement crosses the line to “payment”. Interestingly, Manitoba is the one province that has amended its legislation to specifically provide for an “exception as to expenses”, thus highlighting the degree to which the provision of expenses could be problematic (if not, why create the clarifying exception?). The Manitoba law states that nothing in the act “prohibits reimbursement” to the donor, recipient of an organ or family members [21].
A more complex type of incentive to donate organs is what has been referred to as a “paired exchange program”, wherein kidney donations are facilitated by pairing those in need of a kidney with a willing but non-compatible donor with other such individuals. These programs exist throughout the world, including in Canada [33] and, if perceived as a way of increasing the chance of the donor’s intended recipient receiving an organ, can be viewed as providing an incentive. In the US, the law that prohibits the exchange of “valuable consideration” for organs was amended to explicitly provide that the ban does not apply to “human organ paired donation” [34]. The fact of this amendment highlights the reality that, but for the amendment, the practice would be caught by the broad prohibition against incentives.