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No brains when it comes down to transplants

by Philip Brasor

The bill to revise the Organ Transplant Law, which cleared the Upper House on July 13 and thus gained full Diet passage, is a rare example of bipartisan agreement. Known as Plan A, the new law has three significant features: It recognizes brain death as legal death, allows the harvesting of organs from brain-dead children under the age of 15, and gives certain priorities to families of brain-dead patients in deciding whether or not the patient’s organs will be donated.

All these points remain controversial, which makes the bipartisan effort seem even more striking, even if the motivation is still political. With the dissolution of the Diet looming, lawmakers felt some pressure to get the bill passed before the World Health Organization enacted guidelines that would prevent people from going overseas for transplants. These guidelines have been held up because WHO is still busy with the swine-flu crisis. WHO is mainly concerned about people from developed countries going to developing countries to buy organs, but Japan is way behind other developed countries in terms of the number of transplants it performs, owing to legal restrictions as well as cultural and administrative factors.

The media has pointed out repeatedly that Plan A was not debated sufficiently, which is why another bill that sets up a government panel to study brain death in children for a year was passed at the same time.

Obviously, this is a case of putting the cart before the horse, but if the government felt pressured to get the bill passed prematurely, the pressure came as much from the media as from WHO. The revision is primarily a reaction to press coverage of Japanese children who are forced to go to the United States or Europe to receive heart transplants because they can’t legally get them in Japan. The poignancy of such stories is irresistible, since they almost always involve people raising hundreds of millions of yen for transportation and treatment, with attendant video of weeping parents and supporters, as well as of the ailing children themselves making the best of their situation.

Several media have conducted surveys to find out how people feel about brain death and organ donation. Prior to the passage, Yomiuri Shimbun found that 75 percent of its respondents agreed that children under 15 should be able to receive organ transplants and 62 percent said that the law should allow the harvest of organs from brain-dead people if the family gives its consent, even if the patient’s desires are not known. More significantly, 58 percent said they would consent to donating organs if they were declared brain dead.

However, an Asahi Shimbun survey conducted after the bill’s passage tells a more complex story. Seventy percent agreed with the main points of the bill, including the harvesting of organs from brain-dead children with the parents’ consent. But as far as equating brain death with legal death, respondents were evenly split: 40 percent said yes while 39 percent said no. There seems to be a contradiction here in that a majority of people, probably moved by news stories about children with bad hearts, agreed that organ transplants for kids should be legalized in Japan, but half are still uncomfortable with the idea of brain death equaling death — which is, of course, a prerequisite for heart transplants (though not necessarily for other organs, like kidneys and corneas). It gets even murkier when you discover that 57 percent of the people who said they do not believe brain death equals death also support the revision.

The most plausible explanation for this disparity is that people separate their sympathy for sick kids from their own personal beliefs. Much of the postpassage coverage has been about the practical side of the issue — educating doctors, promoting the use of transplant coordinators, standardizing brain-death confirmation procedures. But many people still cannot face death so objectively.

Novelist Izumi Yamaguchi expressed his objection to the new law in no uncertain terms in an essay he recently wrote for Kinyobi magazine. Yamaguchi believes that the body isn’t dead until the heart stops, and says that the government’s redefinition of death as being brain death amounts to murder by proclamation. In that regard, he sees no difference between codifying brain death and capital punishment since in both situations the state decides who shall die.

To many people, Yamaguchi’s idea will sound like academic hyperbole, but in order to bolster his argument he uses an example that is every bit as emotionally charged as the images of sick Japanese children waiting for hearts in foreign countries. He mentions a Fuji TV documentary about a 14-month-old baby who was declared brain dead but was still alive and being cared for by his family eight years later. Since the child is brain dead he has no chance of ever being conscious, and the family understands that. It’s not a question of waiting for a miracle. It’s a question of having that loved one still in this world, however you conceive of that world.

Yamaguchi’s point, however, is basically an economic one. What he sees in the revised bill is an attempt to replace an individual’s own sense of death with a “valuation of that individual’s life.” Medical priorities will be based on “utility,” meaning that one person’s life, as defined by the state, is deemed to be more important than another’s. “Goodwill,” he says, will be used as “blackmail.”

This conspiracy theory actually gives the authorities too much credit. Bipartisan effort or not, as the media pointed out the government hasn’t thought the issue through thoroughly, and would probably prefer not making too big a thing out of transplants because, in the end, it’s the government that will pay for them. For the time being, it’s enough just to get WHO off their backs. They’ll worry about dying children next year.