Question

Should there be a legal market for organs.

Make as per Canadian Standards. Thanks. No Plagiarism. 10 marks.

Answer 1

In Canada, the provinces and territories are responsible for regulating organ and tissue transplantation. Legislation in each province and territory sets norms regarding organ donation, and each such statute includes what amounts to a ban on the buying and selling of organs. Although there is some variation in the exact wording of the relevant provisions, every province has a prohibition that, taken literally, is tremendously broad in scope. Seven of the thirteen statutes state that “No person shall buy, sell or otherwise deal in, directly or indirectly, for a valuable consideration, any tissue for a transplant, or any body or parts other than blood or a blood constituent, for therapeutic purposes, medical education or scientific research

In law, “valuable consideration” is expansively defined; it is understood to mean any detriment incurred by one party to an agreement,Consideration is much more than a mere exchange of money for goods or services

If an individual or organization were to challenge the legal legitimacy of a particular incentive program, the court would be required to interpret the provision that prohibits dealing for an organ “for a valuable consideration”. Based on the broad approach to the meaning of consideration in the case law, the court would very likely be persuaded that the legislature chose the language of “valuable consideration” deliberately, and with a view to including much more than an outright purchase of organs. In other words, if the legislature had intended only to prohibit the exchange of cash for organs or tissues, then the provision could have been drafted much more narrowly. The choice of the language of consideration suggests that all programs that can be viewed as providing a benefit to the donor in exchange for an organ could be interpreted as being contrary to the spirit of the legislative prohibition, and therefore illegal.

It is important to note that our interpretation of “valuable consideration” is based on the common law of contract. Canadian organ donation legislation makes it an offence to contravene of the law. This implies that the law may be interpreted more narrowly, in keeping with the “strict construction” approach used in the context of penal legislation, where uncertainty or ambiguity is resolved in favour of the accused person.