Is Japan's Struggle With Brain Death Over?

In a historic event in October 1997, Japanese legislators enacted a law that recognized brain death as legal death. The legislation now allows citizens to donate organs legally from the brain-dead to patients waiting for organ transplant. Before the bill's introduction, controversy had persisted over the issue, since it was very difficult for the Japanese to perceive brain death as the end of life.

The legislation contains two important rules. One requires a potential donor and the donor's immediate family members to consent to an organ donation. If one of the two consents is lacking, organ donation cannot be completed. The rule was crafted as a safeguard to respect the intent of both the brain-dead patient and family members.

In response, Japan Organ Transplant Network, a public agency in charge of coordinating organ donation, started to provide "Donor Cards" as small as a credit card. The card has three statements: (2) I would like to donate the following organ if I am diagnosed as brain dead, (2) I would like to donate the following organs after my heart stops, and (3) I do not have any intention to donate my organs after death. Potential donors must fill out and sign this card and carry it with them. This process satisfies the patients' consent requirement.

Because the family members' consent must also be obtained, however, the double-consent safeguard causes a tremendous burden on the family members. A major Japanese newspaper polled the public on the organ donation issue. One question asked if your family member, who already consented to organ donation, becomes brain dead, would you also consent to it? Surprisingly, more than 97 percent of respondents answered no. Such a statistic bodes poorly for the new law.

The second important provision of the new legislation requires potential donors to be age 15 years or olders. The rule has close ties to Japanese law that dictates that children cannot legally consent. The minimum age requirement also creates a critical problem--virtually ignoring the lives of young children and babies who need organ transplants. Donated organs must fit the size of the donee. A hear of a 15-year-old person will not fit a two-year-old. The Japanese government is now considering lowering the minimum age, but it is highly doubtful that the government did not foresee the problem with it first legislated this law.

As before stated, such legislation is of first impression in Japan. Granted, the country's legislators need more time to refine the law. At the same time, thousands of sick people wait for donated organs.

© 1998, "Health Law" (Vol. 2, No. 1), Cleveland-Marshall College of Law, Cleveland, OH 44115. Produced here with permission.

(translation by Vicki L. Beyer)

Temple University Japan