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The topic of organ donation in the UK has never been discussed more than in the past couple of weeks, with the introduction of a revolutionary system in Wales and the ongoing progression of the Transplantation (Authorisation of Removal of Organs etc) (Scotland) Bill through the Scottish Parliament. It is important to note that the Bill is not yet in force. If the Bill is passed it will radically change the law on human tissue and organ donation.

Currently, an ‘opt in’ system is operated in Scotland whereby the donation of human tissue and organs requires the authorisation of the individual by entering their name on the NHS Organ Donor Register. The position has recently changed in Wales with the implementation of a new “opt-out” system.

The Bill when passed, will introduce a ‘soft opt-out’ system, where it is presumed that consent has been given by silence. This will only apply to individuals over the age of 16 (in Wales, it only applies to individuals over 18 years old). If an individual is strongly opposed to donation, there remains the ability to opt-out and such wishes will be respected and protected, but this does require positive action on the part of the individual. Such action requires the individual to register their objection in a similar way as the current system for registering to donate, for example, online at, or at the very least make their relatives aware of their wishes.

It is hoped that the new law will have a positive impact by bridging the gap between supply and demand and it could, potentially, reduce the number of people dying whilst waiting on the transplant list. Currently the UK currently only has an organ donation rate of just under 20 donors per million people.  Scotland’s rate is the lowest in the UK at 18.2 donors per million people.  It is also hoped that the legislation will instigate a cultural shift around the issue of organ donation as it will prompt individuals to have open and frank discussions on the topic.

…there are some concerns, primarily that the presumed consent is based on an unfounded assumption that because an individual did not opt-out, he or she therefore had made a positive decision to allow donation of their organs, or at least is not opposed to it. There is an argument put forward by some that individuals will lose control over their bodies because too much power will lie with state and health officials rather than with the family. Furthermore, it is by no means certain that the gap between supply and demand will be reduced as many organs may in fact be unsuitable, and many individuals may opt-out.  

This is a matter that individuals should look to discuss with their friends and family to come to an informed and reasoned decision. There are other legal options that individuals could consider and for those individuals wishing to discuss matters further, contact our Private Client team on 0800 0891 331.

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