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United Kingdom: Scottish Parliament Approves Opt-Out Organ Donation System

(July 23, 2019) Members of the Scottish Parliament have passed the Human Tissue (Authorisation) (Scotland) Bill (the Bill), introducing an opt-out system of organ donation. (SP Bill 32A Human Tissue (Authorisation) (Scotland) Bill [as passed], Session 5 2019), Parliament website.) The members voted overwhelmingly for the measure on June 11, 2019, with 116 voting for the Bill, three against, and two abstentions. (Official Report: Meeting of the Parliament 11 June 2019 [Draft], THE SCOTTISH PARLIAMENT (June 11, 2019).) The Bill will now proceed to scrutiny by law officers before being submitted for royal assent and becoming law. (After Stage 3: How the Bill Comes into Force, THE SCOTTISH PARLIAMENT (last visited July 18, 2019).)

The Human Tissue Bill will amend the Human Tissue (Authorisation) (Scotland) Act 2006. (Human Tissue (Authorisation) (Scotland) Bill 2019, § 1.) The earlier Act allowed for adults to expressly authorize their body parts to be used after their death. (Human Tissue (Authorisation) (Scotland) Act 2006 (ASP 4), website.)

The new legislation provides that adults aged 16 and over may be deemed to have authorized the use of their body parts after death unless they have given an opt-out declaration or expressly authorized the use of their body parts after death. (Human Tissue (Authorisation) (Scotland) Bill 2019, § 5, sched. 7, para. 2.) The new legislation will also make it easier for a close relative of a patient to authorize shortly before the patient’s death that the patient’s body parts be used. (Human Tissue (Authorisation) (Scotland) Bill 2019, § 4.)

The Bill provides for exceptions for adults deemed “incapable of understanding the nature and consequences of deemed authorisation” and those who have not been resident in Scotland for at least 12 months. (Human Tissue (Authorisation) (Scotland) Bill 2019, § 5, sched. 7, para. 2.) Close family members of deceased children can give permission for the use of the deceased’s body in transplant procedures. (Human Tissue (Authorisation) (Scotland) Bill 2019, § 16.)

Amendments added at stage 2 of the Bill’s progression imposed a duty on the Scottish government to provide public information on how deemed and express authorization are understood and how to give express authorization or an opt-out declaration. (SP Bill 32A Human Tissue (Authorisation) (Scotland) Bill [as amended at Stage 2] Session 5 2019, § 2.)

The Scottish Parliament’s move comes after the Welsh Assembly passed similar legislation in 2013. (Human Transplantation (Wales) Act 2013 (anaw 5), website.)

Prepared by Kathryn McNickle, Law Library intern, under the supervision of Clare Feikert-Ahalt, Senior Foreign Law Specialist.