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Transplantation of the heart after circulatory death of the donor: time for a change in law?

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Australia has an increasing shortfall in transplantable hearts. Over the past decade, the number of all donors per million population increased from 10.0 in 20051 to 16.1 in 2014.2 However, the number of heart donations per million population over the same period has declined slightly from 3.8 to 3.4, with an annual average of 3.3.3 Procurement of organs has always been conducted according to the dead donor rule — that is, after death of the donor — but this practice is being challenged.

The law defines death in all Australian jurisdictions (eg, in s 41 of the Human Tissue Act 1982 [Vic]) as either “irreversible cessation of all functions of the brain” (brain death) or as “irreversible cessation of circulation of blood in the body” (circulatory death), but it does not define irreversible or how to determine irreversibility (Box). Exceptionally, circulatory death is not defined in Western Australian legislation.

Although the procurement of organs such as livers, kidneys and lungs is permitted after either brain death or circulatory death according to Acts in all jurisdictions, the procurement of hearts has traditionally only been from brain dead donors with functioning hearts. The definition and diagnosis of brain death is not without controversy4