According to statistics posted on the Ontario Trillium Gift of Life Network website, there were a total of 1,546 persons waiting for an organ transplant as of June 20, 2016. According to beadonor.ca, 29% of Ontarians are registered organ donors, which is 3.5 million people out of an eligible population of 12.0 million.
I was touched when I read the recent commentary that was published by the Star, which was written by Beth and Emile Therien. Beth and Emile Therien are the parents of Sarah Beth Therien, who died 10 years ago and who revolutionized organ donation in Ontario.
When Sarah Beth died, organ donation was only available when a person had been declared brain dead. According to Sarah Beth’s parents, such deaths only occur in 1 to 2% of hospital deaths and Sarah Beth did not fit into this category of donors.
However, Beth and Emile Therien knew that their daughter was not coming back and they knew that she believed strongly in organ donation. With the help of the Ontario Trillium Gift of Life Network and the Ottawa Hospital, Sarah Beth became Canada’s first organ donor whose organs were donated after the withdrawal of life support, which is otherwise known as donation after cardiocirculatory death (“DCD“).
Since Sarah Beth’s death in 2006, 1,067 transplants have been performed in Ontario with organs that were donated after cardiocirculatory death. According to Beth and Emile Therien, one third of deceased donors in Ontario, today, are DCD donors.
Here on our Hull & Hull website, we have published a Toolkit for Legal Professionals which includes precedent letters to assist legal professionals in advising their clients about organ donation. This Toolkit was developed by Ian M. Hull, along with Sam Marr of Landy Marr Kats LLP, in consultation with the Ontario Trillium Gift of Life Network.
I would also like to take this opportunity to encourage anyone who is interested in registration, or in learning more about this topic in general, to visit https://www.beadonor.ca/ and https://www.giftoflife.on.ca/en/
Thanks for reading,
Normally, it is the estate trustee who has the authority to deal with the disposition of the deceased’s remains. A deceased’s stated wishes with respect to disposition, including donation, are seen as merely precatory.
However, Ontario’s Trillium Gift of Life Network Actvaries this usual authority, in a number of respects.
Firstly, a deceased’s consent to organ donation is “binding and is full authority for the use of the body…”.
Secondly, where the deceased has not specifically consented to a donation, the Act allows specified persons to consent to the donation of the person’s own body or body parts upon death. A spouse or other family members, in a specific order, are authorized to consent to such a donation if the deceased has not consented during his or her lifetime. One of the persons authorized to consent to the donation is “the person lawfully in possession of the body”. This appears to be a reference to the estate trustee. However, the estate trustee’s authority to consent is low on the list, after the spouse, children, parents, siblings and other next of kin.
The consent of a spouse or other person listed in the legislation is “binding and full authority” for the use of the body. The legislation therefore appears to make a limited exception to the common law authority of the estate trustee.
Consent is not to be given if it is believed that the deceased would have objected during his or her lifetime, or if the deceased did not consent, if someone higher on the hierarchical list would object.
Have a great weekend.
In this episode of Hull on Estates, Megan Connolly and Rick Bickhram discuss some interesting legal issues that surround assisted reproductive technology and succession law.