Is the Canadian Legal Framework Too Restrictive and Based on False Premises?

Given the increasing shortage of organs in recent years, there has been an abundant empirical and theoretical literature on incentives to improve organ donation [1, 2]. Some of these incentives, such as reimbursement of donor expenses, are uncontroversial whereas others, such as payment for organs, are matters of heated debate. In this issue of the Journal, Caulfield and colleagues provide an in-depth legal analysis of various incentives in the Canadian context [3]. They show us that in Canada, organ donation is based on altruism; organs are viewed as a gift; and the law dictates that organ donation should be “gratuitous” and without any “rewards and benefits” or “valuable consideration”. This means there can be no measures that might encourage or influence organ donation. As the authors demonstrate, this legal framework is restrictive and bans not only the trade of organs, but also most of the monetary and non-monetary incentives currently used in organ donation. In this editorial, I will discuss the relevance of the principle of altruism in organ donation and the contradiction between the legal definition of a gift and gift-exchange theory and show how the current Canadian legal framework is out of sync with the empirical data on incentives. Altruism and organ donation Altruism is a key principle in our current organ donation and transplantation legislation, and is also a matter of scholarly debate in the philosophical, sociological and psychological literature [4–6]. Following are some examples of unanswered questions regarding the nature of altruism: Do motivations make an action altruistic? Is there such a thing as pure altruism? If so, most living organ donors are not altruistic, since they have mixed motivations [7, 8]. Should an altruistic act be directed toward strangers or can it be directed toward loved ones? If this is the case, only anonymous non-directed donation would be altruistic. Finally, can altruistic agents benefit from their gesture? If not, living organ donors who experience increased self-esteem and other psychological benefits cannot be considered altruistic. As shown in a previous study, altruism holds a different meaning for transplant professionals who describe a wide variety of altruistic actions, ranging from acts of common courtesy to heroic actions such as saving lives [9]. Incentives and even the removal of disincentives to organ donation could be considered incompatible with the idea of pure altruism. I concur with other authors who find it problematic for organ donation to be based on this vague and debated concept of altruism [10]. As proposed by Saunders, solidarity might be a better guiding principle [11].

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