End of Life Law in Australia

Section: Organ Donation

Organ Donation

Organ and tissue donation is a consideration which often arises at the end of life, both for people who are dying and their families.

This webpage explores the law relating to organ and tissue donation from deceased donors. Donation by living donors is not discussed here, however further information about living donation is available at from the National Health and Medical Research Council or the DonateLife Network, the lead Australian Government authority for organ and tissue donation.

Key legislation, terminology and principles

What legislation and guidelines govern organ and tissue donation?

In Australia organ and tissue donation is governed by the ‘Human Tissue Act’ in each Australian State and Territory:

These Acts are very similar in each jurisdiction, and create different legal frameworks for living and deceased tissue donation.

Organ and tissue donation is also governed by guidelines issued by the Natonal Health and Medical Research Council (NHMRC) which outline ethical standards for donation, and their implications for clinical practice. Two guidelines of particular relevance to deceased donation are:

  • Ethical guidelines for organ transplantation from deceased donors (‘Deceased Donor Guidelines’). These guidelines inform ethical practice in assessing the suitability of donor organs for transplantation, and allocating organs and vascularised tissue composite allografts (parts of the body that comprise multiple tissues such as muscle, bone, nerve and skin, as a functional unit i.e. a hand or face).

These guidelines are currently under review.

What are some of the key terms used in organ and tissue donation?

The following are key terms relating to organ and tissue donation:

‘Tissue’ is defined in the Human Tissue Acts to include an organ, part of a human body or a substance extracted from the human body, other than blood. ‘Tissue’ can therefore refer to both organs and other bodily tissue. Kidneys are the predominant organ donated and transplanted in Australia, followed by liver, lungs and heart. Tissues commonly donated include corneas and heart valves.

‘Death’ is defined in all jurisdictions as either:

  • irreversible cessation of all brain function (‘brain death’); or
  • irreversible cessation of circulation of blood (‘circulatory death’ or ‘cardiac death’).

‘Deceased donor’ is defined by the NHMRC as is a person declared dead by established medical criteria, from whom organs and/or tissues are recovered for the purpose of transplantation into another person. Deceased donation occurs after brain death, or after circulatory death. At present, most deceased donors in Australia experience brain death, with an increasing number experiencing circulatory death. A deceased donor's organs may also be donated for research (however, is outside the scope of this website).

What are the principles of organ and tissue donation?

The Ethical Practice Guidelines outline principles for organ donation and transplantation. The principles emphasise:

  • that donation of organs and tissues is an act of altruism and human solidarity;
  • organs and tissues for transplantation should be obtained in ways that respect human dignity, respect the wishes of the deceased, and give precedence to the potential donor's and family’s needs over the interest of organ procurement; and
  • that the choice not to donate should be respected and the family shown understanding for their decision.

Deceased organ and tissue donation

When can deceased donation occur?

The Human Tissue Acts and Ethical Practice Guidelines provide guidance about when organ and tissue donation can occur. Under the Ethical Practice Guidelines, for donation to occur it is essential that:

  1. Death has occurred, due to either brain death or circulatory/cardiac death.
  2. Appropriate procedures are carried out for provision of information and seeking of consent.
  3. Suitability for organ and tissue donation is determined.
  4. The designated officer (or a nominated doctor in a hospital) gives authorisation.

For determination of brain deaths, all jurisdictions, except for Western Australia, require two medical practitioners (with relevant qualifications outlined in the Human Tissue Acts) to examine the person and certify that irreversible cessation of brain function (brain death) has occurred. Although there is no certification requirement in Western Australia, two medical practitioners must still examine the person and declare that brain death has occurred before tissue can be removed.

For further information on determination of death read the Australian and New Zealand Intensive Care Society’s Brain Death Determination Statement and Circulatory Death Determination Statement, or visit the DonateLife Network.

It is important to note that not everyone will be suitable to be a deceased donor. The DonateLife Network has identified that only 2 to 3% of people who die in hospital are medically suitable to be deceased donors. This is because particular circumstances must exist in order to donate. For example, generally the death must occur in an intensive care unit or in a hospital emergency department.

Further information about the process of donating organs and tissue is available from the DonateLife Network.

How can a person become a deceased donor?

Australia has an ‘opt-in’ informed consent model of donation whereby a person with decision-making capacity may choose whether or not to donate their organs and tissue.

To opt-in, a person aged 18 or over must record their consent to donation on the Australian Organ Donation Register. A person aged 16 or 17 may record their intention to donate, however consent to donation would be needed from a family member at the time of the person’s death. A person may also use the Register to record their objection to donation. For further information visit the Australian Organ Donor Register .

Other countries have ‘opt-out’ models of deceased donation where it is assumed that a person consents to being a deceased donor unless they actively opted out during their lifetime. Following a change in the law, England will move from an ‘opt-in’ model to an ‘opt-out’ model of deceased donation in 2020.

How are the views of the deceased donor taken into account?

The designated officer (i.e. a doctor appointed to this role) at the hospital where the potential donor dies or is brought must determine whether the deceased had either expressed a wish to donate tissue, had consented to its removal, or had objected to it. If there is evidence that the deceased had objected to organ donation, or had changed his or her mind about donating, then donation cannot proceed.

The Human Tissue Acts require that reasonable steps must be taken to find out the deceased’s intent or wishes e.g. by checking the Australian Organ Donor Register.

The designated officer may authorise donation on the basis of the deceased person’s written consent (or in some States and Territories, oral consent), or expressed desire to donate. These requirements vary by State and Territory. However, in practice, in all States and Territories donation cannot proceed if the family objects, or refuses consent (New South Wales and Tasmania only), in accordance with the Ethical Practice Guidelines which apply nationally. This is discussed further below.

Can organ and tissue donation occur if the deceased objected to donation?

No. Where a person clearly states during their life that they do not wish to donate, or had changed his or her mind about donation,  donation cannot occur. However, if it is clear that the deceased had withdrawn that objection before he or she died, the objection will have no effect.

Who consents to organ and tissue donation when the donor dies?

The person’s consent must be verified in order for deceased donation to occur e.g. their consent may have been recorded on the  Australian Organ Donation Register. However, the family of the deceased will be asked to provide consent before donation can proceed, even if a person has already recorded their consent to donation on the Register.

The Human Tissue Acts provide a priority list of family members who will be approached for consent to deceased donation. If the first person on the priority list is not available, then the designated officer must seek out the next person on the list to provide consent. The person with the highest priority is referred to as the ‘senior available next of kin’.

Where the deceased donor is an adult (i.e. a person aged over 18 years), the priority order is the same in each State and Territory:

  • Spouse or de facto, domestic and same sex partners.
  • Adult son or daughter.
  • Parent.
  • Brother or sister.

Where a deceased donor is a child, the priority order (in all States except Western Australia and Queensland) is as follows:

  • Parent.
  • Adult brother or sister.
  • The child’s guardian.

In Queensland and Western Australia a child's domestic partner or spouse will be given priority over a parent, sibling or guardian.

‘Parent’ is defined differently in some States. For example, the New South Wales definition includes biological parent, step-parent or adoptive parent. In South Australia parent includes ‘the guardian of the child’. The Australian Capital Territory, Tasmania, Victoria and Western Australia Acts specifically exclude from the definition of parent a guardian or anyone else in loco parentis. In Queensland a parent includes a person who under Aboriginal tradition or Island custom, or other cultural traditions, is considered a parent of the child.

If there is some concern regarding the death, the medical team declaring death and the hospital’s donor coordinator will contact the Coroner to determine whether the death is reportable or not. When a death is reportable to the Coroner, then the Coroner must provide consent to the removal of the organ or tissue.

What happens if there are differing views about whether or not donation should occur?

In some cases a deceased’s family may be reluctant to allow organ and tissue donation, even though the deceased expressed a wish to donate, or consented to donation. In other cases there may be differing views within families (or disputes) about whether donation should occur.

So long as the legal requirements for donation are met – that is, the individual expressed a wish to donate, and there is no evidence they changed their mind – generally a designated officer has discretion to authorise donation, regardless of a family member’s objection.

In practice however, where there is a clear dispute among the deceased’s family or they object to the removal of tissue, donation will not occur, even if the potential donor had expressed a wish to donate, or had registered their consent. The Ethical Practice Guidelines, though recognising the importance of giving effect to the deceased’s wishes, emphasise respect, dignity and support for remaining family members, and recommend against donation if the family objects or it is likely to experience distress. Accordingly, the wishes of the family generally preside over those of the deceased.

Who is eligible to receive deceased donors’ organs, and how are decisions about allocation of organs and transplantation made?

Decision-making about who will receive a deceased donor’s organs, and allocation of organs for transplantation are complex processes. The Deceased Donor Guidelines and other clinical guidelines govern these processes, including how organs are assessed for suitability for donation, how organs are allocated to recipients (including potential recipients with impaired decision-making capacity), and how a person’s eligibility for transplantation is determined.

Posthumous reproduction

Posthumous reproduction is a complex legal and ethical issue that arises where a person wishes to:

  • Collect gametes (a male’s sperm or a female’s eggs) from a dying or deceased person, and use them for reproduction, or
  • Use gametes or embryos collected and stored before the death of the person’s spouse or partner for reproduction.

Both Australian law and practice in this area are still evolving.

What legislation and guidelines govern posthumous reproduction?

Currently, posthumous reproduction in Australia is regulated by a mixture of laws and guidelines, including:

Can the gametes of a dying or deceased person be removed?

Yes. However, the requirements for this to occur are different depending on whether the deceased had provided consent.

Collection where the donor is dying and can provide consent

The ART Guidelines recognise that gametes may be collected from a person who is dying so long as the person has capacity to give valid consent, and consents to storage and use of the gametes for reproduction after their death.

Collection where the donor is deceased, or is dying and lacks capacity

If the person is dying and does not have capacity, or is already deceased, court authorisation is required for removal of gametes. The ART Guidelines also require that:

  • the request to remove the gametes must come from the partner of the dying or deceased person (not another relative);
  • the gametes are intended for use by the surviving spouse/partner;
  • there is no evidence that the dying/deceased person had not wanted their gametes to be used posthumously; and
  • the surviving spouse/partner must consent to the collection and storage of the gametes.

Though the ART guidelines require a court’s authorisation, some courts (Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C (Western Australia Supreme Court, 2013); Re Cresswell (Queensland Supreme Court, 2018) have decided that a designated officer (under the Human Tissue Acts) not the courts may determine whether or not to authorise removal of gametes. For example, in Re Creswell (2018) (see key cases below) the Queensland Supreme Court decided that removal of a deceased person’s gametes does not require court authorisation so long as the Transplantation and Anatomy Act 1979 (Qld) is followed.That Act requires authorisation by the designated officer, and in some cases, the State Coroner. It is yet to be seen what effect this decision has on the practices of ART clinics.

What is the law relating to posthumous use of a person’s gametes or embryos?

Posthumous use of a person’s gametes and embryos is governed by both the ART Guidelines, and State ART legislation.

Provisions in the ART Guidelines

For posthumous use of a person’s stored gametes or embryos, the ART Guidelines distinguish between whether or not the deceased (or dying) donor left ‘clearly expressed directions’ about use of their gametes or embryos:

  • Where the donor gave clear directions about use of their gametes or embryos e.g. for reproduction, the gametes may be used for that purpose, so long as State or Territory law permits its use. The request for use must have come from the spouse or partner or the deceased person (not another relative), with the intention they be used by the surviving partner/spouse.
  • Where there is no clear direction from the donor, the gametes or embryos may still be used for reproduction if State or Territory law permits it, and:
    • the request has come from the surviving partner, and the gametes or embryo are intended to be used for reproduction;
    • there is some evidence that the donor would have supported use, or there is no evidence he or she did not want this to occur; and
    • the surviving spouse/partner gives valid consent.

There are also other requirements that must be met before conception or a pregnancy is attempted using the stored gametes or embryos, including that:

  • sufficient time has passed since the donor’s death;
  • information is provided to the prospective parent about the implications for the child born as a result of the pregnancy; and
  • the prospective parent undertakes counselling.

State and Territory Assisted Reproductive Technology laws

New South Wales, VictoriaSouth Australia, and Western Australia are the only States that have Assisted Reproductive Technology Acts governing the use of extracted gametes or embryos. Those laws provide:

  • In New South Wales, use of gametes or embryos when it is known (or reasonably believed) the donor is dead is prohibited unless:
    • the donor consented to use of his or her gametes after death;
    • the women who is to receive the gametes has been informed of the death or suspected death, and date of death if known; and
    • the woman, knowing of the death, gives written consent to receiving the gametes.
  • In South Australia use of the gametes of a deceased person, or embryos formed using their gametes, may be allowed if:
    • Before the donor’s death:
      • the deceased’s semen was collected; or
      • an egg from a woman living with the donor on a genuine domestic basis was fertilised with the donor’s semen, or
      • an embryo was created;
    • The deceased donor had consented to use of the semen, egg or embryo after their death, for reproductive purposes;
    • Any directions given by the donor in relation to use of the semen, egg or embryo have been complied with (as far as is reasonably practicable); and
    • The ART is provided to a woman who, immediately before the donor’s death, was living with the donor on a genuine domestic basis.
  • In Victoria use of a person’s gametes, or an embryo created with their gametes, is permitted after the person’s death if:
    • The reproductive treatment is carried out on the deceased donor’s partner, or the embryo is to be used by a deceased woman’s male partner using a surrogate;
    • The deceased person provided written consent to use of the gametes or embryo in that procedure;
    • Approval is granted by the Patient Review Panel; and
    • The person having the treatment receives counselling.
  • In Western Australia use of a person’s gametes for a fertilisation procedure after their death is prohibited.

In the Northern Territory, the Australian Capital Territory, Queensland and Tasmania there is no legislation governing the use of gametes once retrieved, and these matters are regulated by the ART Guidelines.

The Courts in some States have determined that use of gametes for reproduction requires a separate application to and authorisation of the Court (in cases including in Re section 22 of the Human Tissue and Transplant Act 1982 (WA)). However in Re Creswell, the Queensland Supreme Court determined that as there is no legislation in Queensland about the use of gametes after death, this is permitted under the ART Guidelines. It was therefore for the ART centre, not the court, to decide whether the ART Guidelines would allow use of the gametes by Cresswell. This suggests that in Queensland at least the Court’s approval for use of gametes is not required.

Key cases

Re Creswell [2018] QSC 142

In 2016 Joshua, Creswell’s partner of three years, took his own life. The day after his death, on Cresswell’s application, the Queensland Supreme Court authorised removal of Joshua’s sperm and testes, for provision to an IVF clinic for storage. For Cresswell to use the sperm a further Court application would need to be made.

In 2018 Cresswell applied to the Supreme Court seeking an order for use of the sperm, in order to conceive a child. The Court considered a range of issues, including removal of sperm for reproductive purposes, and use of that sperm. It decided that a court’s authorisation for removal of sperm, as well as use of that sperm for reproduction, are not required provided that the requirements of the Transplantation and Anatomy Act 1979 (Qld) are followed. The Court confirmed that sperm falls within the definition of “tissue” in that Act, and therefore, a designated officer of a hospital can authorise removal of tissue, including sperm, posthumously.

The Court also confirmed that as there is no legislation in Queensland dealing with the use of retrieved sperm from a deceased donor, the ART Guidelines apply. Accordingly, it was a matter for the ART centre, not the Court, to determine if the ART Guidelines would allow use of the sperm by Cresswell for reproduction. There was nothing prohibiting this use provided that the ART Guidelines were met. In arriving at this decision, the Court considered the deceased’s wishes, and that there was substantial evidence that he had always desired to have a family with Creswell.

Re section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C [2013] WASC 3

C sought urgent orders for the removal and storage of the sperm and tissue of her husband, who had died the previous day. This would enable C to undergo a future in vitro fertilisation procedure to have a child, subject to the court approving this at a separate hearing. C gave evidence she and her husband had been trying to conceive for nearly two years. Her husband had consented to the plan of having a baby. However, the hospital where her husband’s body was located told C she needed a court order authorising removal of the sperm.

The Supreme Court approved the removal of C’s husband’s sperm, but confirmed that the Human Tissue and Transplantation Act 1982 (WA) permits a hospital’s designated officer to authorise the removal of sperm at the request of the senior available next-of-kin.

The Court also ordered that the sperm and tissue, once removed, could not be used for any purpose without a further order of the Court.

Further resources

Publications

Maeghan Toews, ‘Organ and Tissue Donation’ in Ben White, Fiona McDonald and Lindy Willmott (eds), Health Law in Australia (Thomson Reuters, 3rd ed, 2018) 773.

Belinda Bennett, ‘Assisted Reproductive Technology’ in Ben White, Fiona McDonald and Lindy Willmott (eds), Health Law in Australia (Thomson Reuters, 3rd ed, 2018) 343, 437-71 [10.110].

Andrew McGee and Dale Gardiner, ‘Differences in the definition of brain death and their legal impact on intensive care practice’ (2019) 74(5) Anaesthesia 569.

Andrew McGee and Dale Gardiner, ‘Donation after the circulatory determination of death: Some responses to recent criticisms’ (2018) 43(2) Journal of Medicine and Philosophy 211.

Dale Gardiner and Andrew McGee, ‘Death, permanence and current practice in donation after circulatory death’ (2017) 110(4) QJM: An International Journal of Medicine 199.

Andrew McGee and Dale Gardiner, ‘Permanence can be defended’ (2017) 31(3) Bioethics 220.

Andrew McGee and Ben White, ‘Is providing elective ventilation in the best interests of potential donors?’ (2013) 39(3) Journal of Medical Ethics 135.