Post-Mortem Organs and Tissue Through a Property Law Lens: How Principles of Property Law Can Guide Lawmakers to a Better Organ Donation Framework
Maloof, Meredith D.
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Across Canada, transplant waitlists far outweigh the organs and tissue made available by the current post-mortem donation system. Every transplant donor is critical to alleviate the ever-growing demand for organs and tissue and there is significant potential for increased donations. Every donation statute in Canada invokes an exception to the deceased’s prior consent being binding. The next of kin’s power to veto decisions concerning post-mortem donations violates donor autonomy and neither the common law nor statutes explain how this veto should be interpreted and applied. The result is a system of organ donation that depends significantly on the altruism of surviving family members and ignores the need for increased donations. Issues with the current donation frameworks are illuminated by a wills and intestacy analogy. Basic principles of property law can and should guide lawmakers to meaningful reform of the donation systems. Post-mortem donative instructions should be viewed as sacrosanct, much like the testator’s instructions are viewed in the law of wills. Our choices concerning where our post-mortem body parts go are not safeguarded by the same protections afforded to our choices concerning property. This thesis explores the evolution of the common law of ownership regarding the human body and body parts, as well as the historical development of Canada’s donation legislation and the meaning of property in theories of jurisprudence. The enforceability of ownership rights in organs and tissue is consistent with popular definitions of property and substantiated further by ostensibly contrasting theoretical views of jurisprudence. This thesis contrasts presumed consent and mandated choice systems of organ donation and proposes an improved system of presumed consent that carefully qualifies the role of family, safeguards individual autonomy, and balances those components with the public need for increased donations.
DegreeMaster of Laws (LL.M.)
Committeevon Tigerstrom, Barbara; Surtees, Doug; Gruben, Vanessa; Heavin, Heather
Copyright DateJune 2021
Post-mortem organ donation
Inter-vivos organ donation
Organ and tissue transplantation
Human tissue legislation
Personal property ownership
Property in the body
Medical decision-making capacity
Wills and intestacy
Adverse possession law
Canadian Charter of Rights and Freedoms
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