By Fabiana Frayssinet
RIO DE JANEIRO, Feb 25 1997 (IPS)

A new law that automatically makes all Brazilians organ donors after death, unless they have taken action to prevent this beforehand, is causing ethical concerns in the nation’s medical fraternity.

The law has been approved by Congress but its bylaws still have to be finalised by the Ministry of Health. In effect the new “passive consent” law inverts previous legislation.

Now, unless a person has enscribed on his identity card or drivers licence that “I am not a tissue or organ donor”, then doctors are free to remove organs as they wish. Previously, if a person wanted to donate tissues or organs, it was necessary to go through legal steps and make a formal declaration.

The new law seeks to boost the number of transplants in Brasil, from only eight per one million inhabitants, to the higher figures in Europe and the United States where the rate is 25 per million

Approved by President Fernando Henrique Cardoso at the beginning of February, the law is the controversial legacy of Sen. Darcy Ribiero, who died on Feb 17 as he justified presumptive donation of organs by using the word “solidarity”.

But Roberto Tenorio, President of Rio de Janeiro’s Physicians’ Union, pointed out that “solidarity has to be spontaneous: one cannot express mandatory solidarity.” He also recalled a similar law concerning blood donations – introduced during the dictatorship of Nicaragua’s Anastasio Somoza – which as a matter of course affected only poor people.

“In Brazil, those who will be vulnerable are the people who have least access to the tools of written documentation as well as to the means of communication: in other words the least notable members of society,” Tenorio said. “They will be the real targets for the organ transplant mafia.”

In an attempt to avoid this extreme, the law precludes the use of any tissues or organs from people who are judged legally incompetent, as well as minors and any deceased person whose identity was unknown. The law, however, does not exclude so-called “brain dead” individuals, who must have demonstrated opposition to donation previously.

One of the many questions circulating in Brasil is whether families will trust in the judgement of a medical council, thereby accepting without opposition a surgical team’s determination to remove the still-beating heart of their child.

Physicians are asking: “Do we have the right to do this?” Meanwhile others are asking whether there are human rights after death.

Although he is only 14 years old, Philipe dos Santos has already undergone two kidney transplants. For him the answer is simple: human rights only pertain to the living.

Recently, while recovering in his hospital room, Philipe said, “Let’s say someone suddenly dies, someone who didn’t want to donate his organs. Well, I think that his family has the obligation to donate those organs in order to help the living – people like me.”

The biggest hope Philipe has is to be able to drink water again, something that has been practically prohibited for most of his life due to hus kidney dysfunction. He is only one of 25,000 Brazilians suffering kidney failure who are seeking donors.

According to surgeon Jose Cavaliere, director of the Rio Transplant Program, Brazil’s problem is not lack of organs. He says that the solution to the problem is better information dispersal concerning the availability of organs, along with improved means of collecting and storing them.

Said Cavaliere, “It’s not a simple matter of increasing the supply to automatically increase the number of transplants – if the increased supply isn’t accompanied by these other measures.”

The government’s new initiative includes the expansion and improvement of transplant centers, which currently number 110.

Physicians’ Union President, Roberto Tenorio, recalls that “we also have the 1978 medical law which specifies that health is a universal right and that it is the obligation of the state to provide the means to provide for everyone’s health. Nevertheless, the law alone wasn’t sufficient to insure that health be a guaranteed right of all.”

Surgeons at Rio’s Pedro Ernesto Hospital are used to transplant operations using the heart of a person who has just died to give another person a new lease on life. It is one of those moments where life and death coexist most closely, and it is also one of the poetic- philosophical arguments most frequently used to encourage organ donation.

For many Brazilians, however, the question still remains “what happens to me after death?” The new law will answer this for them.

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