Transplantation and Organ Donation: introduction



Transplantation and Organ Donation

Some Court Cases

Audio file: Now we are going to examine some interesting cases involving organ donation. As we go through them, think of your reaction. Also keep in mind that the legally appropriate decision may conflict with the morally proper decision. For example, under many circumstances, you and I have the legal right to lie. But under many of those same circumstances, it may be morally wrong to lie. This alone should indicate that a legal right is quite different from a morally proper action.

In the introductory section, we noted that donations by incompetent people are especially troubling. For example, should children be permitted to donate organs based upon the consent of their parents? Should incompetent mentally challenged people be forced, under any circumstances, to become organ donors?

Before you say “no,” keep this in mind. The doctrine of informed consent is extended to incompetent individuals in a variety of ways. For example, we may decide for ourselves, while competent, what should be done, medically speaking, for us if we become incompetent. This could be done through an advance directive. If we do not have an advance directive, someone who knows us well may offer a "substituted judgment" for us stating what we would probably consent to. If this accurately represents our likely judgment, then in effect we gain the ability to consent even when incompetent. This is thought to be a moral and legal advantage. If our desires are not known by others, then the best interest standard may be applied. Other people can consent for us based upon what would be in our best interest, at least according to those other people. This is also thought to be of advantage. It gives us another opportunity to be covered under the umbrella of informed consent even though lacking decisional capacity.

Strunk v. Strunk

Shouldn't the same opportunity apply to a mentally challenged person? What do you think?

There is a famous court case, Strunk v. Strunk (445 S.W. 2d 145), in which exactly this issue is presented to a Kentucky court.

The court provides the background:

"Jerry Strunk is 27 years of age, incompetent, and through proper legal proceedings has been committed to the Frankfort State Hospital and School, which is a state institution maintained for the feebleminded. He has an I.Q. of approximately 35, which corresponds with the mental age of approximately six years. He is further handicapped by a speech defect, which makes it difficult for him to communicate with persons who are not well acquainted with him. When it was determined that Tommy, in order to survive, would have to have a kidney the doctors considered the possibility of using a kidney from a cadaver if and when one became available or one from a live donor if this could be made available. The entire family, his mother, father and a number of collateral relatives were tested. Because of incompatibility of blood type or tissue none were medically acceptable as live donors. As a last resort, Jerry was tested and found to be highly acceptable. This immediately presented the legal problem as to what, if anything, could be done by the family, especially the mother and the father to procure a transplant from Jerry to Tommy. The mother as a committee petitioned the county court for authority to proceed with the operation. The court found that the operation was necessary, that under the peculiar circumstances of this case it would not only be beneficial to Tommy but also beneficial to Jerry because Jerry was greatly dependent upon Tommy, emotionally and psychologically, and that his well-being would be jeopardized more severely by the loss of his brother than by the removal of a kidney."

The court permitted the kidney transplant. The thinking was that it was in the best interest of Jerry to donate his kidney because he was dependent upon his brother Tommy.

Notice how the court relied upon the doctrine of informed consent in the following statement: "The right to act for the incompetent in all cases has become recognized in this country as the doctrine of substituted judgment and is broad enough not only to cover property but also to cover all matters touching on the well-being of the ward. The doctrine has been recognized in American courts since 1844…." In effect, the court seems to see this as a chance for an extremely mentally challenged person to be protected by informed consent.

Do you agree with the judgment of the court? Think about possible reasons to disagree. For example, an extremely retarded person would have little knowledge of the cause of his painful surgery. Also, one wonders how much contact there will continue to be between Jerry and Tommy. Is it really in Jerry's best interest to be a donor? What do you think Jerry would have done if he what were competent? Keep in mind, that many relatives do donate kidneys to their loved ones.

Little v. Little

We next look at similar case with a similar conclusion, Little v. Little (576 S.W.2d 493), 1979. The court explains the circumstances: Anne Little, who has been adjudged incompetent, appeals through her attorney ad litem from an order of the probate court of Guadalupe County authorizing her mother and guardian, Margaret Little, to consent to a surgical procedure involving the removal of a kidney from Anne's body for the purpose of transplanting such kidney into the body of Anne's younger brother, Stephen, who is suffering from endstage renal disease.

Again the court determined that it was in the best interest of Anne to donate her kidney to her brother Stephen. The court argued that it Stephen died she would grieve for him.

In re Richardson

One thing that makes the law perplexing is that sometimes similar cases are not decided similarly. Think of what's basically involved in the two cases above. Both involve sibling children. Both involve people who are not competent to make medical decisions. Both involve speculation about what would be in the incompetent persons best interest. Both conclude that it would be in the donor’s best interest to preserve the life of this sibling.

Here's a case that seems, at least to me, to be similar in circumstances: In re Richardson (284 So. 2d 185).

"Plaintiff, Charles W. Richardson, filed this suit against his wife, Madeline Cecelia Richardson, as mother and natural tutrix of their minor child, Roy Allen Richardson, to compel her to consent to surgical removal and transplantation of one of the boy's kidneys for donation to his sister, Beverly Jean Richardson, and to give to Beverly's treating physicians, nurses, etc., authority to perform the medical and surgical procedures necessary for the transplantation....

"The petition alleges the transplant is necessary within sixty days of the filing of the petition on September 28, 1973 in order to prevent the death of Beverly and that Roy is a mental retardate, 17 years of age, with a mental age of 3 or 4 years....

Mr. Richardson is 63 years of age and Mrs. Richardson is 56. Roy is 17 and, because of retardation, has the mental capacity of a 3 or 4 year old child. We must note that an otherwise healthy person in Roy's condition, mongolism, has an average life expectancy of 25 years. Beverly is 32 years of age and divorced. Because of her illness she has spent the last several years at the home of her parents where Roy also resides."

The contention is that the transplantation if allowed is in the Roy's best interest because he will be had for by his sister. The court did not buy that. Pop-up information. A couple of months ago I was at a conference and talked with a guy from Norway. We got to talk about colloquial expressions. The one he found the strangest was the expression " I don't buy that." Hopefully, the comment I just made will not seem strange to you.

Here is the court's conclusion: "Counsel for plaintiff argues the transplant could be in Roy's best interest because, if it is successful, Beverly could take care of Roy after the deaths of both Mr. and Mrs. Richardson. Such an event is not only highly speculative but, in view of all of the facts, highly unlikely. We find that surgical intrusion and loss of a kidney clearly would be against Roy's best interest…."

We just look at three cases, relatively similar. Yet two would decided one-way and one the other. What do we make of that?

According to one theory, called legal "realism," law is all about predicting what judges will do. The law is what judges do. Of course, in one sense this is quite true. It is a lawyer's job to predict what juries and judges will decide. In a case like this the law is unsettled. This makes it very difficult to predict what the next judge will do in a similar case.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download