July 5, 2022

Should mentally incompetent people be allowed to donate organs?

Should a mentally incompetent person be allowed to donate organs?

Should a mentally incompetent person be allowed to donate organs? Surprisingly, according to an article in the European Journal of Health Law, national laws give very different answers to this question.

To illustrate the implications, consider a case in Kentucky from 1969, Strunk v Strunk. A court authorised doctors to remove a kidney from a 27-year-old mentally incompetent man, Jerry Strunk, for the benefit of his 28-year-old brother Tommy. Apart from the fact that Jerry’s kidney was a good match, the court was persuaded that Jerry’s happiness depended upon Tommy’s survival: “his well-being would be jeopardized more severely by the loss of his brother than by the removal of a kidney.”

However, in a 1975 case in Wisconsin, a similar request to transplant a kidney from a disabled brother to a sick sister was denied. The Court noted that they had a brother who was an ideal donor, but who had refused because of his family responsibilities. Besides, there was no indication that the disabled brother had in any way agreed to the transplant.

In Europe, the focus of the article in the EJHL, regulation of situations like these varies widely. In 10 of 22 countries surveyed, transplanting any organs, regenerable (bone marrow) or non-regenerable (kidneys) is banned. Eight only allow procurement of regenerable organs. In the remaining four – Belgium (where the law is being revised), Sweden, Ireland and the UK – it is possible to use organs from mentally incompetent people. But it is strictly regulated and must not harm the donor.

The authors of the article feel that excluding this possibility is too restrictive and urge a change of the law. They feel that organ procurement from mentally disabled people can be ethical if it is in their best interests and if there are “robust safeguards”. 

Michael Cook
Creative commons
informed consent
organ donation