This question reveals a rather paradoxical situation. If a person officially declares “no” to donation, their relatives cannot change this decision after their death. However, if a person has said “yes,” their will is not necessarily carried out, because the final decision on organ and tissue donation is made by the relatives. It is indeed a paradoxical situation – a person’s “no” legally appears stronger than a “yes,” according to a press release from the law firm “Ellex Valiunas.”
According to Andra Lapė, a life sciences and healthcare regulatory lawyer at the law firm, the current regulation in the country does not clearly explain such asymmetry. The Law on Donation and Transplantation of Human Tissues, Cells, and Organs grants a competent person the right to express both consent and refusal, both decisions being registered in the state register. The law directly provides for the consent of relatives only when the deceased person did not express either consent or refusal while alive. In such a case, the right to decide is assigned in order to the spouse, adult children, parents, brothers, and sisters.
The same logic is essentially reflected in the subordinate legislation. The consent of the deceased’s relatives is required if the person did not officially express their will while alive. Therefore, when reading the legal acts systematically, it is not easy to find a clear norm that would give relatives an independent right to deny a valid, unrevoked consent of the deceased to donation.
By the way, the law does not explicitly state that a registered and unrevoked person’s consent is a sufficient legal basis for donation and that additional family consent is not required in such a case. This gap allows for a difference between the legal framework and the model presented to the public in practice. People are told that they can decide and officially register their will, but at the same time, the possibility is left for relatives to have the final say on whether organs will be donated or not.
Of course, relatives should not be automatically excluded from the donation process – for example, a person may have changed their mind, and the family may have important information that after registering the consent, their will changed, although the register data was not updated. But legally, it is important to distinguish two things – the right to decide and the right to provide information about the true, last will of the deceased. When a person has not decided, relatives can reasonably make a decision for them. However, when consent is already registered, their role could be different – to provide reliable data about a later change in the person’s decision, rather than deciding whether they themselves agree with the donation.
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The relevance of the issue is also shown by the statistics of relatives’ decisions – last year, according to the National Transplantation Bureau, as many as 28.9% of donors’ relatives did not agree to organ donation. These numbers cannot be equated with cases where relatives denied an already registered person’s consent, but they clearly show how important the family’s position is in the entire donation process. Therefore, it is important that its legal boundaries are defined more clearly.
Organ donation inevitably touches on several very sensitive interests – the deceased’s will, the relatives’ grief, and the hope of patients waiting for transplantation. That is why there should be no ambiguity in this area about who and under what circumstances makes the final decision. The role of relatives in the donation process is important, but equally important is the state’s obligation to respect a person’s consciously and officially expressed will.
Almost 52 thousand Lithuanian residents have already registered their decision. Therefore, today the question is not only about how many people will have a Donor card, but also about what real legal significance the state gives it. If a person is given the right to say “yes,” it should be clear when and why this “yes” can be changed after their death.
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