Intended for healthcare professionals

Rapid response to:


Kidneys for transplant

BMJ 2006; 332 doi: (Published 11 May 2006) Cite this as: BMJ 2006;332:1105

Rapid Response:

Bad Drafting Makes Bone Marrow Donations unlawful


While the Human Tissue Act 2004 may be welcomed for its potential
effect on kidney donations, poor drafting of the Human Tissue Act 2004
(Persons who Lack Capacity to Consent and Transplants Regulations)
Regulations 2006 SI no.1659 means that bone marrow (and blood stem cell)
donation by competent persons may be unlawful when the Act comes into
force on September 1st 2006. Section 33, subsections(1),(2) of the Act
make it unlawful to perform live donation/transplantation unless
disapplied by regulations made by the Secretary of State (s.33(3)). In
r.10(1) the Regulations define the relevant 'transplantable material' as:
(a) an organ, (b) bone marrow, and (c) blood stem cells, but states that
this definition is subject to the subsequent paragraphs (2) and (3).

Paragraph (3) states: 'The material referred to in paragraph (1)(b)
and (c) is transplantable material for the purposes of section 33 of the
Act ONLY in a case where the' donor is an incompetent adult or child
(emphasis added). The problem lies in where the drafter has placed the
'only'. Instead of the 'only' relating to the transplantable material, it
relates to the donor subject. The effect of this, on a literal reading, is
that ss.33(1),(2) are only disapplied where the donor is incompetent. This
means that it is an offence to harvest or use bone marrow from a competent
person, which is clearly not what was intended.

It should be noted that the same problem does not arise in the
Scottish legislation. It should also be noted that s.33(5) provides a 'get
out of jail free' card in that it provides that no offence is committed
where the persons involved in the donation/transplant 'reasonably
believed' the dissaplication applied. Of course, once you have read this
letter it would no longer be reasonable to believe that.

Competing interests:
None declared

Competing interests: No competing interests

29 August 2006
Alasdair R Maclean
Senior Lecturer in Law
University of Dundee, DD1 4HN