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Communtity Law Manual | A death in the family | When consent to organ donation is valid

Donating organs: Who decides

When consent to organ donation is valid

Human Tissue Act 2008, ss 9, 27

Your decision must have been given freely, and it must also be an “informed” decision, which means you have to have all the information that a reasonable person would need in your situation.

The kinds of information you’d need would probably include things like: what the process would be for confirming that you were in fact dead; how your organs or other tissues would be used; the effect the transplant procedure would have on your body’s physical appearance; and whether it will delay your funeral.

The doctors are entitled to assume that any consent you gave was free and informed, unless they’re aware of evidence that it wasn’t free and informed.

Your consent or objection must also be specific about the particular type or types of use it relates to – for example, donating organs for transplants, or using your body or organs for medical research, or both.

Note: When the doctors remove organs from your body, they have to avoid disfiguring it unnecessarily.

Human Tissue Act 2008, s 54

For your consent, or objection, to be legally valid, either:

Human Tissue Act 2008, s 43

  • it must be in writing, or
  • if it’s not in writing, you have to tell two witnesses, who must be there together at the same time.

So legally you don’t have to put your consent in writing, and if you do put it in writing you don’t have to have witnesses. But it’s a good idea to put it in writing anyway, and to have witnesses when you sign this document; your witnesses will be able to confirm later on for the doctors and others that you were mentally capable when you made the decision, and that you had all the information you needed.

Human Tissue Act 2008, s 9(1)(a), (2)(a)

Although legally you can record your decision in your will, the national organisation Organ Donation NZ says that by the time your will is read it will normally be too late to provide organs for transplant. So it’s best to put your decision in a separate document that your family or friends will have access to, not in your will.

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