Australia’s definition of death is holding organ transplantation back from using the most up-to-date technology and achieving the best outcomes.
On Thursday the government will announce it will establish an Australian Law Reform Commission (ALRC) inquiry looking to modernise human tissue laws last comprehensively reviewed almost 50 years ago.
Informed by the ALRC’s 1977 report, each state and territory’s human tissue act provides the legal framework for the use of human bodies after death and also living donation.
The federal attorney general, Mark Dreyfus, said there was “strong support” from states and territories for the inquiry to ensure laws were brought up to date with the significant social, technological and scientific advances since 1977.
Currently there are two definitions of death which can be met for organ donation to occur: irreversible cessation of circulation of blood in the body of the person or irreversible cessation of all brain function.
Prof Angela Webster, a transplant physician at Westmead hospital, said the first definition of circulatory death was preventing Australia’s transplant sector from using normothermic regional perfusion (NRP) – one of last decade’s major advances in medical organ retrieval technology.
“As soon as circulation stops, organs start being damaged,” said Webster, who is also a member of the board of the Transplantation Society of Australia and New Zealand.
“The idea of [NRP] is to stop the organ damage occurring by creating an artificial flow that allows oxygenation and allows tissues to stay healthy even though the person’s already dead.” The cerebral vessels are clamped to prevent re-establishing circulation to the brain.
“Because we’re establishing some circulation, albeit temporarily,” Webster said, “that’s at odds with this definition of irreversible cessation of circulation of blood in the body. So there’s been concern we can’t use this technology in Australia because legally it is contrary to that definition of death.”
Webster said the definition of circulatory death needed to be updated to a cessation of circulation to the brain, in line with most other international medical definitions and in countries where NRP is legally practised. “At the moment, we’re having to hold back.”
Currently there is only established evidence for a clear benefit of NRP for liver transplantation. But evidence may still emerge for other organs, Webster said.
Updating the definition would enable Australian doctors to use the technology where it has proven benefits and also be on the forefront of testing its use on other organs. Australia was already a leader in other areas of transplantation.
The inquiry would also look to bring legislative consistency between states and territories.
What medical professionals can do at the time of organ donation differs between states, Webster said. In New South Wales doctors can administer a drug called heparin which helps stop blood clotting. But in some states and territories doctors cannot give any new medication before or after determination of death.
“If we could iron out differences to be uniform across Australia, it would help equitable organ donation, because at the moment different things are permitted in different states, which might theoretically impact how successful a transplant is,” she said. “And this shouldn’t be, and likely isn’t, the intent of the law. Organ donation and procurement should be uniform across Australia.”
All commonwealth, state and territory health ministers had agreed to jointly fund the inquiry. Health ministers were developing terms of reference for the inquiry, which would be made public when the attorney general formally referred the inquiry to the ALRC later in 2024.
The federal assistant minister for health, Ged Kearney, said she looked forward to considering options for reform as “it’s been almost 50 years since Australia’s tissue laws were comprehensively reviewed”.
As well as the definition of death, Dr Helen Opdam, the medical director of DonateLife, said authorisation and consent frameworks would also be part of the inquiry’s terms of reference.
However, Opdam said any consideration of an opt-out framework was unlikely to increase donation rates, as ultimately families must always provide consent whether an opt-in or opt-out system was implemented.
National consent rates were now 56% but rose to over 80% when the family knew the wishes of their loved one when it came to donation, she said.
The human tissue acts contain many subtle differences, which leads to differences in families’ experiences, Opdam said. In harmonising different state laws “we’re really keen that families have the best possible experience with regard to their relative becoming a donor”.
For Nick Brown, organ donation was pivotal in helping him grieve his wife Leanne’s death. In the future, he said, it would also help him explain everything to their daughter, who was just a baby at the time.
When Brown one day has the difficult conversation, he said he would start off telling his daughter “mummy saved four lives”.
Leanne died by suicide in early 2019, after experiencing a severe depressed episode as part of her bipolar disorder.
“My last image of Leanne after she died is her being wheeled off to theatre to have her organs retrieved, given a guard of honour by staff in intensive care unit.
“In spite of our tragedy, our grief was coupled with pride for Leanne’s last act.”
• In Australia, the crisis support service Lifeline is 13 11 14. In the UK and Ireland, Samaritans can be contacted on freephone 116 123, or email jo@samaritans.org or jo@samaritans.ie. In the US, you can call or text the National Suicide Prevention Lifeline on 988, chat on 988lifeline.org, or text HOME to 741741 to connect with a crisis counselor. Other international helplines can be found at befrienders.org
