Is the Canadian legal framework too restrictive and based on false premises?

Altruism and organ donation

Altruism is a key principle in our current organ donation and transplantation legislation, and is also a matter of scholarly debate in the philosophical, sociological and psychological literature [4–6]. Following are some examples of unanswered questions regarding the nature of altruism:

As shown in a previous study, altruism holds a different meaning for transplant professionals who describe a wide variety of altruistic actions, ranging from acts of common courtesy to heroic actions such as saving lives [9]. Incentives and even the removal of disincentives to organ donation could be considered incompatible with the idea of pure altruism. I concur with other authors who find it problematic for organ donation to be based on this vague and debated concept of altruism [10]. As proposed by Saunders, solidarity might be a better guiding principle [11].

Gift exchange theory

In their review, Caulfield et al. report that the legal prohibition of any incentives in organ donation is tied to its definition as a gift [3]. The legal definition of a gift does not concur with anthropological theories of gift exchange. In his seminal essay on the gift in traditional societies, Marcel Mauss described a triple set of obligations: to give, receive and repay. Individuals who refuse one of these obligations create social tension [12]. Renée C. Fox and Judith Swazey have shown that Mauss’ obligations are present in both deceased and living organ donation [13]. In organ transplantation, it is not only the patient who receives a gift, but also society at large [6]. This is more obvious in the case of deceased organ donation, where the organ procurement organization receives the organ and allocates it to a patient. In living organ donation, society likewise benefits, since the gift allows citizens to live active, fulfilling lives, to pay taxes, and so on. Society further benefits from the donation, since hemodialysis is far more expensive than kidney transplantation [14]. If society is also a recipient of this gift, it has an obligation to repay the donor (or the donor’s family in the case of deceased organ donation). Incentives such as recipient priority in exchange for donating, donor recognition events, payment of funeral expenses and tax credits could easily be envisioned as a way for society to repay such a gift.

Empirical evidence and incentives

As mentioned by Caulfield et al., Canadian laws are out of step with current practices and public perspectives on incentives in organ donation [3]. A recent survey of the Canadian public, health professionals and patients revealed a high acceptance of incentives such as reimbursement of funeral expenses, tax breaks or credits for deceased donation, and reimbursement of donation-related expenses and lost wages in the case of living organ donation [1]. Further, it is current practice in many Canadian provinces to reimburse expenses related to living organ donation [15–17]. In another recent study conducted in Europe, North America, Australia and New Zealand, transplant professionals found the reimbursement of expenses associated with living organ donation to be acceptable. Some even considered a regulated organ market to be acceptable [2]. Israel has seen an increase in organ donation rates since passing a law in 2009, which gives priority points to organ donors and their families, and removes disincentives for living donors [18].