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Deakin Law School's Dr Neera Bhatia discusses necessary changes to legislation.

The decreasing number of hearts available for transplant has prompted a call for a change to legislation which restricts the conditions under which a heart can be removed from a donor, according to an Ethics and Law article published in the Medical Journal of Australia.

In all Australian jurisdictions, the law defines death as either 'irreversible cessation of all functions of the brain' (brain death) or 'irreversible cessation of circulation of blood in the body' (circulatory death), however, it does not define irreversible or how to determine irreversibility. 

Associate Professor James Tibballs, Deputy Director of the Intensive Care Unit at Royal Children’s Hospital in Melbourne and Dr Neera Bhatia, lecturer at Deakin Law School, suggest that it is the word 'irreversible' that causes problems. 

'Although the procurement of organs such as livers, kidneys and lungs is permitted after either brain death or circulatory death according to Acts in all jurisdictions, the procurement of hearts has traditionally only been from brain dead donors with functioning hearts', they write. 

'Over the past decade, the number of all donors per million population increased from 10.0 in 2005 to 16.1 in 2014. However, the number of heart donations per million population over the same period has declined slightly from 3.8 to 3.4, with an annual average of 3.3.

'Only 39 hearts were procured from 189 donors (21 %) during the first 6 months of 2015.' Tibballs and Bhatia write that the problem of heart transplantation after circulatory death is the 'medical interpretation of the legal definition of circulatory death'.

'The fact that a transplanted heart can function and sustain life in a recipient must mean that the circulation of the donor had never ceased irreversibly and therefore that the donor of the heart was never dead until his or her heart was removed.

'The question is thus posed — how is it possible to procure the heart of a donor under the premise of circulatory death and yet expect it to sustain life in a recipient?' 

The legislation, they say, 'needs to be refined'.

'A possible alternative would be to retain the present definition of brain death as irreversible cessation of all function of the brain, but to omit the requirement for irreversibility in the definition of circulatory death and to redefine it as cessation of circulatory function with cessation of higher brain function', Tibballs and Bhatia suggest.

The need for debate – societal, medical and legal – is key to removing the danger of transplant doctors possibly committing a criminal act by transplanting after circulatory death, they write. 

'Otherwise, Australia’s improving organ donor program is at risk of adverse publicity and damage if doctors, hospitals and our organ procurement agencies are perceived as procuring organs from patients not legally dead.'

Additional information and interviews on this topic

Dr Bhatia was also published in The Age, the Sydney Morning Herald, the Canberra Times and the Adelaide Advertiser on 21 September 2015.

Note: This story was sourced from the Medical Journal of Australia (MJA)