Manitoba Law Reform Commission Report on Organ and Tissue Donation

The Manitoba Law Reform Commission has published a report on Presumed Consent Organ & Tissue Donation:

"Each year, thousands of Canadians find themselves on waitlists to receive donations of vital organs, including kidneys, livers, hearts, lungs, and pancreases. However, there is a gap between the number of organs and tissues needed by Canadians and the number of organs and tissues available for donation and transplantation. Accordingly, governments continue to explore ways in which to maximize the availability of organs and tissues for transplantation, to ensure the loss of fewer Canadians to donation systems that are unable to support them."

"One such method, which has already gained traction in a number of jurisdictions outside of Canada, and which, as of January 2021, has been introduced in Nova Scotia, is the implementation of a legislative system of “presumed consent” or “opt-out” organ and tissue donation. Under such a system, when there is no record of a person’s decision on organ and tissue donation, their consent will be considered, under law, to have been given. This type of system differs from all other current Canadian organ and tissue donation systems, including Manitoba’s, which maintain “express consent” or “opt-in” systems of organ and tissue donation. Under these “express consent” or “optin” systems, legislation requires the explicit consent of donors for the use of any parts of their bodies after death for therapeutic purposes, medical education or scientific research. Under The Human Tissue Gift Act (“HTGA”), Manitoba’s current organ and tissue donation legislation, as under all analogous Canadian legislation aside from Nova Scotia’s, individuals will not be candidates for after-death organ or tissue donation without this express consent (...)"

"The Manitoba Law Reform Commission (the “Commission”) has considered how the HTGA should be amended if the government were to decide to switch from an express consent to a presumed consent statutory organ and tissue donation framework. Accordingly, the Commission takes no position in this Report on whether or not to recommend the enactment of such legislation, but on what elements ought to be included in such legislation if it were to be implemented, and how these elements should be crafted."

The report includes comparisons of the situation in other Canadian provinces as well as foreign jurisdictions such as the United States, Australia, New Zealand, the United Kingdom and Spain.