Concern over organ donor law
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Concern over organ donor law

It has emerged that friends and relatives will be able to override presumed or express consent of Jews who opted in to organ donation after a new law takes effect in the spring

Stephen is the Jewish News' Foreign Editor

 Jews who want to donate their organs when they die may soon have their final wish thwarted by religious family members who disagree with organ donation.

It has emerged that friends and relatives, including those being advised by rabbis, will be able to override the presumed or express consent of Jews who opted in to organ donation after a new law takes effect in the spring.

Conflicting information had been sent to thousands of Orthodox Jews in the UK from two of the country’s largest Orthodox groups. One said families need only object to stop donation, while the other said families needed “proof” the deceased did not wish to donate. Yet another said Jews who opted to donate could have their wishes overridden.

At present, anyone can register their desire or not to donate their organs upon their death and that will remain the case after Max and Keira’s Law takes effect. The change in emphasis applies to those who do not register a wish either way.

Currently, the government does not presume consent if a person has not recorded their wish on the NHS Organ Donor Register, but from next year people will be deemed to have consented in the absence of any expressed wish.

The NHS has not defined exactly who will have power to override consent and when, citing the pending completion of a Code of Practice following a consultation, but said a family’s agreement was key. “Ultimately, if the family don’t want it to happen, it won’t happen,” a senior figure at NHS Blood and Transplant (NHSBT), told Jewish News.

Strictly   Orthodox Jews say religious law prohibits organ donation because the body must be intact at burial. The only exception, they say, comes when an Orthodox rabbinic council agrees to it. Typically this is only when a transplant will imminently save a Jewish life.

In other strands of Judaism, donating organs is encouraged on the grounds it saves a life, but there is disagreement over whether “death” includes brain stem death, such as when a person is kept alive on life support, or only when a person’s heart stops beating. Hearts and lungs can only be taken for transplant in situations of brain stem death.

Earlier this year, the Human Tissue Authority, which is the regulator for organs, tissues and cells, launched a public consultation on guidance for healthcare professionals about the implementation of deemed consent.

This week, the NHS said final decisions on organ donation will be taken by a specialist nurse in liaison with the family, but Jewish groups have sought to amend Paragraph 53 of the Draft Code, which states the family “does not have the legal right to overrule appropriate consent” if they object to the donation.

Jewish Community Council director Levi Shapiro said: “We’ve explained to the NHS the family should have the right to override the deceased person, for example, if they haven’t recorded an interest or if they have mistakenly recorded ‘opt-in’ but the family wants to override that.”

The Federation of Synagogues’ Beth Din told members last week: “If family members seek to prevent the donation of the deceased’s organs, they will have to provide proof that the deceased expressed their opposition to the donation. Absence of such evidence will constitute deemed consent and the family will not be able to prevent the donation.”

But the Office of the Rabbinate of the Union of Orthodox Hebrew Congregations (UOHC) told its members: “NHS guidance and practices are clear that no donation can be considered without engaging the family to ascertain the most recent wish of the deceased. This is the case even in the event where the deceased chose to opt-in.”

The NHSBT confirmed the UOHC interpretation was likely to be accurate, but said consensus would be sought.

Friends and relatives might be able to override a patient’s wishes to donate

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