Organ Donation and French Law

Writing in France Soir, Parisian barrister Thierry Vallat explains the current state of play regarding France's "opt out" organ donation law.

Article source: "Don d'organes - Refus, consentement: le cadre légal", Thierry Vallat, France Soir, 05/02/2018.

According to a survey carried out in 2016, about 80% of the French population support organ donation in the event of death. But despite such overwhelming support, France still has shortages of organs and cannot meet all of its transplantation needs. This is sometimes due to refusals that lack any supporting evidence.

Today, there are over 20,000 patients waiting for a transplant in France. This number has more than tripled since 1994. Every year, hundreds of people die still waiting for a transplant. These are precisely the sorts of cases that are targeted by the new French law, which came into force on 1 January 2017, making it harder to refuse the recovery of a dead person’s organs without explicit proof of an opt-out during the donor’s lifetime.

Principles of organ donation

It should be noted that for post-mortem donation, every step of the organ recovery process is subject to very strict ethical and medical conditions (article L 1232-1 of the French code of Public Health, which was amended by Law n°2016-41 of 26 January 2016).

Organ donation can only be carried out for therapeutic or scientific purposes and must abide by the following principles:

  • Organ donation is free. It can not be paid for because an organ is not considered to be an item of property in the legal sense, therefore it is illegal to trade human organs.
  • Organ donation is anonymous: that is to say that the family of the deceased donor will not be able to know the identity of the recipient of the donation and vice versa.
  • The family of the deceased will however be allowed to know the outcomes of the transplants that have been performed.

Since 1976, French law has applied the principle of presumed consent to organ donation.

Can you refuse a post-mortem donation?

It is mandatory for every effort to be made to seek out any information that might enable the dead person’s opinion on the donation of his organs to be determined, and any possible refusal to be respected. Indications of a desire to opt out, on the part of the deceased, or a reluctance to donate, might be found in:

  • The oral testimony of a family member or close friend,
  • Written evidence of an opt-out or restrictions (consent given for only one organ, or for a specific list of organs)
  • The deceased having signed up to the French national opt-out register for organ donation (if you do not wish your organs to be used after your death, you can make it official by asking to be put on the French national opt-out register for organ donation).

 

Since 1 January 2017, the three accepted methods for opting out have been defined thus:

  • The main way to refuse to allow your organs and tissues to be recovered after death is to sign up to the French national opt-out register for organ donation. And to make it simpler, French people can now register online at registrenationaldesrefus.fr.
  • Alternatively, you can ensure your opt-out with a written document, dated and signed, and leave it with a family member or a friend.
  • Finally, you can communicate your opt-out orally to your next-of-kin, who will have to confirm this formally with the medical team.

An opt-out can now also be partial and only affect certain organs or tissues.

 

How does post-mortem donation work in France?

The donor’s brain death must be confirmed by two different doctors. The doctors cannot be part of the transplant teams.

In practice, the confirmation of brain death relies on three clinical observations: the complete absence of consciousness and movement, the absence of brainstem reflexes, and the inability to breathe without a ventilator. This diagnosis is confirmed by electroencephalograms given a few hours apart.

After brain death is confirmed, the body is artificially kept alive and tests are carried out to identify any possible matches with patients waiting for a transplant.

The hospital’s transplant administration team then make the necessary checks with the relatives of the deceased and contact the health service’s regional regulatory body.

The process may be halted at any moment, either for medical reasons (deterioration of the organs), or because of new information coming to light indicating that the potential donor has opted out.

Surgeons who recover the organs from a deceased donor are required to ensure the best possible restoration of the body. Any violation of this principle can result in a law suit.

The costs of travelling from one health facility to another to confirm brain death and of removing and transporting organs for therapeutic purposes are the sole responsibility of the facility performing the surgery.

The costs incurred during the conservation and restoration of the body are also to be paid by the facility performing the organ removal surgery.

The cost of delivering the body back to the relatives is also covered, so that the family does not have to spend any more money than if the donation had never taken place.

 

Translated by Euzhan Genly and Audrey Cauchy

Editing by Sam Trainor

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