Motion 229 (Private Members’ Bill, 2024) seeks to ensure a broader provision of “consent to have ...(one’s) organs and, or tissues and, or, cells, to be donated after... death” by amending the Human Organs, Tissues and Dell Donation Act (chapter 558 of the Laws of Malta).

This concept of assumed consent will need to be clarified later, particularly regarding autonomy. From the perspective of those needing organ transplants, the law presents a clear advantage, ensuring a reliable supply of organs.

The idea of ‘gifting’ an organ, rather than being ‘taken’, is a crucial consideration for potential organ donors and has been raised by NGOs.

For healthcare professionals, introducing this law poses a significant ethical challenge. They will need to navigate the intersection of this new legislation with their existing code of ethics, particularly article 1 of the ‘Ethics of Medical Practitioners’.

“The medical profession occupies a position of trust in society. A doctor’s calling is to serve humanity under all conditions. Members of the profession have built up a tradition of placing the needs of the patient above all else.”

The primary vocation of health professionals is to ensure the well-being and dignity of patients under their care, especially the vulnerable, as their primary aim.

Suppose the law invokes an automatic assumption of consent to a medical procedure. In that case, health professionals will, nonetheless, still have to inform patients under their care, such as those who could pass away during acute illness, that their organs will be harvested.

A duty to provide an opt-out option must be included appropriately when discussing possible treatment outcomes with patients, their relatives and those dear to them.

It is also appropriate that relatives be involved in scenarios of brain death when there is irreversible damage to the brain that robs all its functions, including breathing. While the persons themselves may not explicitly provide consent or withdrawal, relatives will act as proxies and voice opinions.

A typical scenario would be the sudden loss of a young traffic accident victim who is pronounced brain-dead in a hospital. The news must be provided by a doctor who does not know the sociocultural background of the patient and their family and with whom the family still does not have a good relationship. If communication is not carried out sensibly, litigation will inevitably arise.

Other vulnerable categories include those with mental health disorders that impair their communication and the incarcerated. Tourists and other persons not normally residing in Malta and are unaware of the legislation will also be co-opted into this framework after article 2(a) is removed.

The idea of ‘gifting’ an organ, rather than being ‘taken’, is a crucial consideration for potential organ donors and has been raised by NGOs- Ian Baldacchino

Medical practitioners should automatically exclude such groups from the same legislation, given their lack of capacity and dependence on third parties to decide for them. These principles are akin to those in the Oviedo Convention that regulates principles of research and biomedicine.

The latter duty will be categorically removed from the main act after deleting article 14, which protects such minorities.

“14. (1) A clinician involved in the donation process must ascertain and certify that the donor fully understands the nature and consequences of the donation.

“(2) A clinician shall not certify any donor who, due to mental incompetence, cannot understand the nature and consequences of the donation.

“(3) In the case of a living minor under the age of 16, a clinician shall only approve the donation and transplantation of regenerative haematopoietic stem cells for blood relatives.”

Irrespective of whether article 14 is removed, the ‘Ethics of Medical Practitioners’ will not “condone anything that would weaken the physical or mental resistance of a human being, except for the prevention and treatment of disease”, such as the deliberate or unintended withholding of information relating to a post-mortem procedure.

The instrumentalisation of the body dehumanises the human person if this is not carried out with dignity and respect.

Otherwise, the scope of article 4 of the Patient Charter on ‘Shared Decision Making and Informed Consent’ (made legally binding by the Health Act) is rendered null.

Should the law go through, the medical profession and healthcare institutions will have to provide further advice to interpret such legislation according to the profession’s codes of ethics.

Ian Baldacchino is a specialist in family medicine and a candidate for a master’s in bioethics at the University of Malta.