Re: AB (Termination of Pregnancy) [2019] EWCA CIV 1215: 'Wishes and Feelings' Under the Mental Capacity Act 2005.

In Re: AB (Termination of Pregnancy), the Court of Appeal was asked to consider an assumption made about the future living arrangements of a pregnant patient, and the weight to be ascribed to her wishes and feelings when she had no real understanding of her predicament. This commentary explores the importance of taking into account the perspective of the patient, even if suffering from a mental disorder, and it will analyse the existing common law to show that the weaker the ability of the patient to form her own wishes and feelings, the more appropriate it would be to rely on the remaining evidence.

A Gift or a Waste? Quintavalle, Surplus Embryos and the Abortion Act 1967.

The destruction of an embryo must be justified in law. This is to prevent frivolous wastage and to show the respect afforded by the Warnock Report (1984). For example, embryonic destruction during pregnancy is underpinned by the Abortion Act 1967, and embryonic destruction during fertility treatment is regulated by the Human Fertilisation and Embryology Act 1990. However, following the appeal decision in R (Quintavalle) v Human Fertilisation and Embryology Authority (and Secretary of State for Health) [2005] 2 A.C. 561, embryos can now be created for a bone marrow tissue match to a sick sibling under the Human Fertility and Embryology Act 1990 according to the subjective desires of the mother. This opens the door to the first example of embryonic destruction on unique social-eugenic grounds with no clear lawful justification. It is argued that these embryos should be afforded a unique destruction provision under an amended version of section 1(1)(a) of the Abortion Act 1967 in light of their 'social-eugenic' nature. This would protect the Human Fertilisation and Embryology Authority from accusations of undercover eugenic practices and reinstate the respect shown towards embryos in law.

The Interfamilial Principle and the Harvest Festival.

It is widely accepted that younger children can act as saviour siblings by donating cord blood or bone marrow to their gravely-ill brothers or sisters. However, it is under dispute whether these procedures are in the best interests of the child. This article suggests that parents may be relying on a thinly-veiled interfamilial approach, where the wider benefit to the whole family is used to justify the procedure to the Human Tissue Authority in the United Kingdom. This article suggests that the merging of familial interests to validate a non-therapeutic bone marrow harvest on a child forces altruism in a patient too young to understand, rendering the harvests unlawful under current law.

Quintavalle: The Quandary in Bioethics.

The case of R. (Quintavalle) v. Human Fertilisation Embryology Authority (and Secretary of State for Health) presents a handful of legal problems. The biggest legal query to arise from the case is the inevitable harvest of babies, toddlers and very young children for their bone marrow. This article unpacks the judicial story behind Quintavalle to reveal how the strict provisions of the Human Fertilisation and Embryology Act 1990--namely 'suitable condition' under schedule 2 paragraph 1(1)(a) and 'treatment services' and 'assisting' under section 2(1)--were widely misinterpreted to introduce the social selection of embryos into law. The legal loopholes created by the judgment (embryo wastage, welfare, eugenics and the legality of child harvest in particular) are also identified. It will be concluded that screening for a tissue match is social selection despite arguments to the contrary and that parents are not yet entitled in law to harvest a very young child for bone marrow, making the creation of a saviour sibling under the 1990 Act as a result of Quintavalle ultimately futile.

Gillick, bone marrow and teenagers.

The Human Tissue Authority can authorise a bone marrow harvest on a child of any age if a person with parental responsibility consents to the procedure. Older children have the legal capacity to consent to medical procedures under Gillick, but it is unclear if Gillick can be applied to non-therapeutic medical procedures. The relevant donation guidelines state that the High Court shall be consulted in the event of a disagreement, but what is in the best interests of the teenage donor under s.1 of the Children Act 1989? There are no legal authorities on child bone marrow harvests in the United Kingdom. This article considers the best interests of the older saviour sibling and questions whether, for the purposes of welfare, the speculative benefits could outweigh the physical burdens.

A fair trial? Assessment of liver transplant candidates with psychiatric illnesses.

Allocating scarce organs to transplant candidates is only one stage in the long process of organ transplantation. Before being listed, all candidates must undergo a rigorous assessment by a multidisciplinary transplant team. The Department of Health and NHS Blood and Transplant (NHSBT) are responsible for the development of detailed strategies to ensure a fair and objective assessment experience for all transplant candidates. Difficulties arise when particularly vulnerable candidates, such as candidates with psychiatric illnesses, are assessed. NHSBT has already developed unique assessment guidelines for alcoholic and substance-abusing liver transplant candidates to allow for a more comprehensive evaluation, but candidates with psychiatric illnesses are still assessed against general criteria. Should these candidates be assessed against their own criteria? On what clinical grounds do transplant teams justify excluding such candidates from transplantation? Is redress available for candidates who feel they have been unfairly refused a liver transplant simply because of their psychiatric illness? This essay will critically examine the provisions published by the Department of Health and NHSBT for the assessment of liver transplant candidates with psychiatric illnesses, and will provide a commentary as to whether enough is being done to protect these particularly vulnerable candidates from inconsistent assessment decisions.

Does the United States do it better? A comparative analysis of liver allocation protocols in the United Kingdom and the United States.

NHS Blood and Transplant (NHSBT) is responsible for the procurement and allocation of human organs in the United Kingdom. Its main role is to "ensure that organs donated for transplant are matched and allocated to patients in a fair and unbiased way." NHSBT's liver allocation policies are underpinned by the National Liver Transplant Standards, a document published by the Department of Health in 2005 to oversee patient care, patient assessment, liver allocation and transplantation, education and training, and research and development. NHSBT has developed its own liver allocation protocols under the powers assigned to it by the Department of Health, which include a "super-urgent" liver allocation policy, a Liver Allocation Sequence, and pediatric candidate liver allocation protocols.

Rational rejection? The ethical complications of assessing organ transplant candidates in the United Kingdom and the United States.

The practice of allocating scarce organs in medicine is an ethical minefield. Due to the organ shortage, organ procurement agencies in both the United Kingdom and the United States are placed in the unenviable position of having to choose a limited number of patients to compete equally for life-saving treatment. They do this by composing multidisciplinary transplant teams, which must evaluate transplant candidates and their complex range of personal, medical, environmental, psychiatric and financial characteristics. During the candidate assessment process, such teams may often be torn between their moral duty to save those who are most in need, considerations of efficiency, and the battle against forming moral judgments about particular candidates. Several ethical approaches can be adopted by transplant teams during the decision-making process, but do these ideologies provide adequate justification for their sometimes controversial decisions? This article provides a detailed examination of the ethical principles available to transplant teams in the United Kingdom and the United States, and the effect that these principles have on assessment procedures, organ allocation protocols, transplant candidates and their prospects.

Presumed consent in organ donation: is the duty finally upon us?

In recent years there has been a renewed interest in presumed consent systems for organ donation. The U.K.'s Organ Donation (Presumed Consent and Safeguards) Bill of 2004 proposed a sweeping change in the law in the form of an opt-out system for the donation of cadaver organs. The Organ Donation Task-force in 2008 later examined the idea of presumed consent at length, before concluding that our current organ procurement system needs a radical overhaul. Most recently, the Organ Donation (Presumed Consent) Bill of 2009 ("the 2009 Bill") provided the most comprehensive proposal yet for an opt-out organ donation system in the United Kingdom. Is it now time to take this controversial issue seriously? If the 2009 Bill provides a window into the future, what practical and ethical difficulties will this new presumed consent legislation impart upon our current organ procurement system? This article will provide an overview of the previous attempts in the U.K. to implement an opt-out system for organ donation, before examining in detail the content of the 2009 Bill as a potential template for a new presumed consent law. Finally, some sweeping amendments to the 2009 Bill will be suggested, and it will be concluded that a new piece of legislation may change our national and international views of organ donation for the better.