Internationally, there is a shortage of organs available for organ donation. Human tissue and cells are
becoming increasingly valuable as part of commercially valuable biotechnological research. The
developments have outstripped the existing legal controls and have led to concerns about the use of
human tissue retained after post mortems in England and Australia and the growth of black markets
dealing in human organs and tissue. There is a need for ethical discourse about the extent to which such
developments should be recognised and controlled by the law. Further, if the supply of organs available
for transplantation is to be increased, the systems of consent in many countries are unsuitable.
Development of a system in which benefits are available to the donors or their families may increase the
supply of organs. If financial benefits are available from biotechnological advances, the people providing
the necessary materials in the form of human tissue or organs may believe they have a right to share in
the resultant benefits.
This paper considers the ethical issues arising from the various systems of consent to organ donation
that have been adopted in different jurisdictions. Fundamental to any such debate is the issue of property
rights- whether a living person has property rights over their own body and whether there exist property
rights to a human body following death. The role of the State is fundamental to such a debate. This paper
considers the potential for the commercialisation of the supply of organs and some approaches that
might facilitate commercialisation. Aspects of the law contract that might arise are outlined.
Overall, the conclusion is that these issues must be addressed by way of legislation. If commercialisation
is permitted in some form, this must be carefully controlled to ensure that the vulnerable members of
Society are not disadvantaged. It is suggested that any benefit should be provided by the State rather
than by way of individual contracts between donor and recipient, to avoid the situation arising where only
the financially advantaged could afford treatment.
