Burial and cremation
Donating organs: Who decides
The Human Tissue Act 2008 first looks to whether the deceased had made an informed decision before they died, but allows the deceased’s immediate family to give consent to – or object to – organ donation if they hadn’t made any decision.
The executor/administrator makes decisions about burial or cremation. However, when it comes to deciding whether a deceased’s organs can be donated, the executor/administrator can help facilitate this decision, but doesn’t make the decision themselves.
For more information about organ donation, and how to record whether you want your organs to be donated, see: “Donating your organs”.
Summary of the decision-making hierarchy
The Human Tissue Act sets up a hierarchy of people who can give legally valid consent, or make a legally valid objection, about organ donation:
- at the top is the deceased person – the doctors will first need to find out if the deceased consented or objected to organ donation before they died
- if the deceased hadn’t made any decision, and hadn’t appointed someone to decide for them after their death, then the immediate family decides together
- if there’s not a decision from the immediate family, then any close relative can decide – but their consent can also be overridden by another close relative.
Although the deceased is formally at the top of this hierarchy, in practice things are different. The Human Tissue Act lets the doctors decide not to act on consent given by the deceased, and doctors usually use that freedom to choose not to go ahead with organ donation if the family oppose or are distressed about it.
Note: Unlike some other countries, New Zealand doesn’t have a national register for recording people’s consent to being an organ donor. Driver’s licence information is the closest thing we have to a register. But having “Donor” (or choosing not to be recorded as a donor) on a driver’s licence, doesn’t count as giving informed consent (or an informed objection) to organ donation – this is just used as an indication for medical staff. From there, the staff will ask the immediate family about whether the deceased had clearly given or refused consent.