Heidelberg Legal Scholars Advocate Revising Allocation Procedure for Liver Transplants
In the view of Heidelberg University legal scholars debating legal aspects of the transplantation of donor organs, it is constitutionally permissible and indeed imperative to gear the allocation of scarce donor livers not only to the medical urgency of the respective case but also to the prospects of success the transplantation is likely to have. This “success criterion” is however conditioned by a number of prerequisites, say criminal law professor Dr. Gerhard Dannecker and his co-worker Anne Franziska Streng in an article published in the journal Juristenzeitung. At present, the only criterion drawn upon in decisions on the allocation of posthumously donated livers is medical urgency. In view not least of the scarcity of donated organs, the legal scholars contend that the allocation guidelines should be revised. The publication is based on research findings from an interdisciplinary project on donor organ allocation conducted at the Marsilius Kolleg, Heidelberg University’s Centre for Advanced Studies, where Prof. Dannenberg, a Fellow of the Kolleg, is engaged in research work on the legal aspects of donor organ allocation.
Since late 2006, the allocation of donor livers in Germany has been geared to the so-called MELD score (Model for Endstage Liver Disease) and hence very largely to medical urgency. The foundations for this procedure are the guidelines of the German Medical Association on the allocation of posthumously donated livers. Medical authorities have advocated that the criterion “prospects of success”, which in the corresponding law is referred to alongside medical urgency, should be given greater priority than has been the case hitherto and that the MELD score should be supplemented by a prospective success score. Their argument is that near-exclusive orientation to the MELD score produces an increasing tendency to give donor livers to severely ill patients with poor prospects of survival.
According to the Heidelberg researchers, the success criterion may be problematic against the background of the German Basic Law, which does not correlate the value of a human life to its expected duration. This stance implies that constitutional protection must be accorded to every human life and its dignity regardless of its duration (Lebenswertindifferenzkonzeption). In other words, human life must not be subjected to differences in evaluation based purely on figures or statistics. Despite this, Gerhard Dannecker and Anne Franziska Streng conclude that the success criterion is neither generally unconstitutional on the grounds that it fails to square with the idea of Lebenswertindifferenz nor perfectly in line with the constitution. “Its compatibility with the Basic Law depends on the question whether the primary intention is to increase the number of surviving donor organ recipients or rather to improve the overall functioning rate for the entirety of patients regardless of how many of them are actually saved,” says Prof. Dannecker. This, he contends, indicates the necessity of distinguishing between different versions of the success criterion. These would only be in line with the constitution if their effect was to increase the number of organ recipients whose lives have been saved by this procedure.
The legal scholars draw the following conclusions from this: It is permissible to introduce allocation regulations that give preference to patients with better prospects of surviving the operation and patients with lower risk of organ rejection, even if this means that patients with a higher urgency factor are disadvantaged. “At least in the long term, giving preference to patients with better prospects will save more lives than prioritising treatment for patients with inferior prospects,” says Prof. Dannecker. It would also be permissible to give preference to patients who can be expected to survive the transplantation for longer, as this too would lead to an increase in the number of lives saved. “The longer an organ functions after transplantation, the later that patient will require a new donor organ, so this will take some of the strain off those in the waiting loop.” By contrast, it would not be permissible to disadvantage a patient merely because he/she has a chronic illness or low life expectancy due to old age. “Disadvantaging elderly or chronically sick patients would not save more lives but merely evaluate human life in terms of its prospective duration and quality. This is not compatible with the Lebenswertindifferenz principle of the Basic Law,” Prof. Danneker concludes.
Gerhard Dannecker and Anne Franziska Streng advocate supplementing the MELD score with another score taking due account of the prospects of success. This would also be closer to the wording of the Transplantation Law, which says that organs should be allocated according to “prospects of success and urgency”.
Gerhard Dannecker, Anne Franziska Streng: Rechtliche Möglichkeiten und Grenzen einer an den Erfolgsaussichten der Transplantation orientierten Organallokation, Juristenzeitung 9/2012, 444-452
Prof. Dr. Gerhard Dannecker
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